Kenneth R. v. Roman Catholic Diocese of Brooklyn

• Decision Date: 03 March 1997
• Citation: 229 A.D.2d 159,654 N.Y.S.2d 791
• Parties: KENNETH R. (Anonymous), et al., Respondents, v. ROMAN CATHOLIC DIOCESE OF BROOKLYN, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 791

654 N.Y.S.2d 791

229 A.D.2d 159

KENNETH R. (Anonymous), et al., Respondents, v. ROMAN CATHOLIC DIOCESE OF BROOKLYN, Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

March 3, 1997.

Certiorari Denied Nov. 10, 1997. See 118 S.Ct. 413.

Conway, Farrell, Curtin & Kelly, P.C., New York City, (Jonathan Uejio, of counsel), for appellant.

Kenneth Litwack, Bayside, NY, (Robert Litwack of counsel), for respondents.

Before MILLER, J.P., and JOY, ALTMAN and GOLDSTEIN, JJ.

GOLDSTEIN, Justice.

Appeal by the defendant Roman Catholic Diocese of Brooklyn, as limited by its brief, from so much of an order of the Supreme Court (James H. Shaw, J.), dated December 11, 1995, and entered in Kings County, as, in an action to recover damages, inter alia, for the negligent hiring, supervision, and retention of Enrique Diaz Jimenez, a priest who was employed by the appellant, denied those branches of its cross motion pursuant to CPLR 3211(a)(7) which were to dismiss the fourth, fifth, sixth, seventh, eighth, ninth, and eleventh causes of action of the plaintiffs' amended complaint sounding, inter alia, in negligent hiring, negligent retention, and negligent supervision.

At issue here is whether the plaintiffs have stated causes of action against the appellant Roman Catholic Diocese of Brooklyn sounding in negligent hiring, negligent retention, and negligent supervision. We find that their allegations with respect to negligent retention and negligent supervision are sufficient to withstand the appellant's cross motion to dismiss the complaint pursuant to CPLR 3211(a)(7), but that they do not have a cause of action to recover damages for negligent hiring.

The plaintiffs' amended complaint alleges that, "on or about or between July 13, 1983, and August 31, 1989", the appellant's codefendant, Enrique Diaz Jimenez, an ordained Roman Catholic priest, sexually abused the infant plaintiffs. Enrique Diaz Jimenez pleaded guilty to sexual abuse in the third degree based upon this conduct. However, as noted by the Supreme Court, that conduct did not fall within the scope of his employment and therefore the appellant is not vicariously liable for his conduct under the theory of respondeat superior (see, Cornell v. State of New York, 46 N.Y.2d 1032, 416 N.Y.S.2d 542, 389 N.E.2d 1064; Mercer v. State of New York, 125 A.D.2d 376, 509 N.Y.S.2d 103). Consequently, the Supreme Court granted those branches of the appellant's cross motion which were to dismiss the first and second causes of action insofar as asserted against it. The Supreme Court also dismissed the plaintiffs' third cause of action sounding in clergy malpractice, and their tenth cause of action alleging that the appellant created a "climate and custom" of indifference to sexual abuse. Those rulings are not before us on this appeal.

In instances where an employer cannot be held vicariously liable for its employee's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision (see, Hall v. Smathers, 240 N.Y. 486, 148 N.E. 654; Restatement [Second] of Torts § 317). However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see, e.g., Park v. N.Y.C. & H.R.R. Co., 155 N.Y. 215, 49 N.E. 674; Gallo v Dugan, 228 A.D.2d 376, 645 N.Y.S.2d 7; Mataxas v. North Shore Univ. Hosp., 211 A.D.2d 762, 621 N.Y.S.2d 683; Detone v. Bullit Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575; Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508; Restatement [Second] of Agency § 213, comment d).

When considering an application to dismiss a cause of action pursuant to CPLR 3211(a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; see, Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). Generally, such a determination can be made from the factual allegations in the four corners of the complaint (see, Guggenheimer v. Ginzburg, supra, at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Foley v. D'Agostino, 21 A.D.2d 60, 64-65, 248 N.Y.S.2d 121). Evidentiary material may be considered to "remedy defects in the complaint" (Rovello v. Orofino Realty Co., supra, at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970), "and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it", dismissal may not be predicated on such evidentiary material (Guggenheimer v. Ginzburg, supra, at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

There is no statutory requirement that causes of action sounding in negligent hiring, negligent retention, or negligent supervision be pleaded with specificity (see, Jones v. Trane, 153 Misc.2d 822, 831, 591 N.Y.S.2d 927; cf., CPLR 3016; Byrd v. Faber, 57 Ohio St.3d 56, 61, 565 N.E.2d 584, 589). However, a complaint which contains bare legal conclusions and/or factual claims which are "flatly contradicted by documentary evidence" should be dismissed pursuant to CPLR 3211(a)(7) (Corporate National Realty v. Philson, Ltd., 232 A.D.2d 518, 648 N.Y.S.2d 974; see, e.g., Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363; Lovisa Constr. Co. v. Metropolitan Transp. Auth., 198 A.D.2d 333, 603 N.Y.S.2d 886).

The plaintiffs' amended complaint alleges that the appellant "had prior knowledge or should have known that the defendant Jimenez was a sexual deviant" and therefore was negligent in hiring, supervising, and retaining him. The plaintiffs further contend that the appellant failed to "establish proper guidelines and procedures", failed to "properly screen and hire applicants to the priesthood", and "failed to have Defendant Jimenez examined psychiatrically and/or psychologically to determine his fitness for serving in the capacity as a Roman Catholic priest".

Certain undisputed facts emerge from the documentary evidence in the record. The codefendant Jimenez was ordained a Roman Catholic priest in 1977, in Venezuela. He came to the Roman Catholic Diocese of Brooklyn in 1983, with a letter of reference from the Archbishop of Merida, Venezuela, and was assigned to work in St. Leo's Church.

Ordination to the priesthood confers a religious, not legal status, and may be characterized as a "quintessentially religious" matter (Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 720, 96 S.Ct. 2372, 2385, 49 L.Ed.2d 151). Imposing liability for conferring that status would create serious concerns of excessive entanglement in religious affairs, in violation of the First Amendment of the United States Constitution (see, Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 327, 533 N.W.2d 780, 790, cert. denied 516 U.S. 1116, 116 S.Ct. 920, 133 L.Ed.2d 849; see also, Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, cert. denied 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739; Downs v. Roman Catholic Archbishop of Baltimore, 111 Md.App. 616, 683 A.2d 808).

However, the question of whether liability could ever be imposed for ordination to the priesthood need not be determined here since the only entity of the Roman Catholic Church sued by the plaintiffs is the appellant Roman Catholic Diocese of Brooklyn which the amended complaint alleges "is a corporation duly licensed to do business in the State of New York". Thus, pursuant to the allegations in the amended complaint, the appellant is a separate entity (see generally, Heenan v. Roman Catholic Diocese of Rockville Centre, 158 A.D.2d 587, 551 N.Y.S.2d 555). The plaintiffs assert no facts from which one could infer that the appellant was responsible for Jimenez's status as a Roman Catholic priest, since he was ordained in Venezuela by officials of the diocese there. Accordingly, the fifth and eighth causes of action, alleging that the appellant failed to screen or determine Jimenez's fitness for the priesthood, must be dismissed.

With respect to negligent hiring, the documentary evidence in the record establishes that the appellant did not and could not have known of Jimenez's propensities when he arrived here from Venezuela with a letter of reference. The plaintiffs allege that the appellant should have initiated some investigations of Jimenez before hiring him to work in a church under its control. The question of whether there is such a common-law duty is a question of law for the courts (see, D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896; Eiseman v. State of New York, 70 N.Y.2d 175, 190, 518 N.Y.S.2d 608, 511 N.E.2d 1128).

There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee (see, Ford v. Gildin, 200 A.D.2d 224, 226-227, 613 N.Y.S.2d 139; Stevens v. Lankard, 31 A.D.2d 602, 297 N.Y.S.2d 686, affd. 25 N.Y.2d 640, 306 N.Y.S.2d 257, 254 N.E.2d 339; Amendolara v. Macy's N.Y., 19 A.D.2d 702, 241 N.Y.S.2d 39; cf., Rhames v. Supermarkets Gen. Corp., 230 A.D.2d 780, 646 N.Y.S.2d 622). Since Jimenez came to the appellant with a letter of reference from his Archbishop, which gave the appellant no reason to believe there was any problem, the appellant cannot be charged with negligence for failing to investigate further (see, Lopez v. William J. Burns Int. Detective Agency, 48 A.D.2d 645, 368 N.Y.S.2d 221; Roman Catholic Bishop of San Diego v. Superior Ct., 42 Cal.App.4th 1556, 50 Cal.Rptr.2d 399; Kennedy v. Roman Catholic Diocese of Burlington, Vermont, Inc., 921 F.Supp. 231). ^* Accordingly, the plaintiffs' sixth cause of action, alleging "failure to establish proper guidelines and procedures", and the plaintiffs' seventh cause...