Lightman v. Flaum

• Decision Date: 04 March 1999
• Citation: 179 Misc.2d 1007,687 N.Y.S.2d 562
• Parties: , 1999 N.Y. Slip Op. 99,116 Chani LIGHTMAN, Plaintiff, v. Tzvi FLAUM et al., Defendants.
• Court: New York Supreme Court

Page 562

687 N.Y.S.2d 562

179 Misc.2d 1007, 1999 N.Y. Slip Op. 99,116

Chani LIGHTMAN, Plaintiff, v. Tzvi FLAUM et al., Defendants.

Supreme Court, Queens County.

March 4, 1999.

Snitow & Pauley, New York City (Franklyn H. Snitow, Efrem Z. Fischer and Edward J. Phillips of counsel), for defendants.

Mallow, Konstam & Hager, P.C., New York City (Abe H. Konstam and Madeleine

Nisonoff of counsel), and Daniel B. Schwartz, New York City, for plaintiff.

DAVID GOLDSTEIN, J.

ISSUE

This case presents an issue of first impression in this State, namely, whether the unauthorized disclosure of confidential communications, in violation of the clergy-penitent privilege provided by CPLR 4505, is actionable. The Court concludes, as a matter of law, that breach of the fiduciary duty of confidentiality does state a cognizable claim for relief.

Defendants, Rabbi Tzvi Flaum and Rabbi David Weinberger, have moved, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action. In accordance with CPLR 3211(c), this Court notified the parties of its election to convert the motion to one for summary judgment and all parties were afforded an opportunity to and did make additional submissions.

FACTS

Plaintiff alleges that, in 1995, she sought religious counseling from each of the defendants, during which she revealed certain matters of an extremely personal and confidential nature. Rabbi Flaum is employed as Rabbi of Congregation Kneseth Israel, 728 Empire Avenue, Far Rockaway, New York. He is also Chairman of the Vaad Harabonim, the Rabbinical Council of Far Rockaway and Lawrence and Co-Chairman of the Vaad Harabonim of Queens. Rabbi Weinberger is employed as Rabbi of Temple Shaaray Tefila, 25 Central Avenue, Lawrence, New York. He was formerly Assistant Rabbi of Congregation Kneseth Israel and teaches at the Prospect Park High School and Seminary for Girls. Both plaintiff and her husband were members of Kneseth Israel and had also participated in services at Temple of Shaaray Tefila. According to plaintiff, she met with each Rabbi for advice and spiritual guidance and, in confidence, disclosed matters of a personal and intimate nature.

Subsequently, in February 1996, Mrs. Lightman commenced an action for divorce and moved for pendente lite relief, including temporary custody of the four children. In response, defendants submitted affirmations in support of the husband's position as to custody, which set forth the confidential matters that plaintiff had previously communicated and imparted to them. Specifically, the affirmation of Rabbi Flaum contained the following:

"2. Mrs. Lightman admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision.

3. Mrs. Lightman admitted to me that she was seeing a man in a social setting and admitted, 'I am doing the wrong things.' I spoke to her and counseled her against this in December, 1995."

The affirmation of Rabbi Weinberger set forth the following:

"2. Mrs. Lightman admitted to me that she freely stopped her religious bathing so that, she did not have to engage in any sexual relations with Dr. Lightman.

3. She told me she was not getting fulfillment when I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by Dr. Lightman.

4. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well. She has engaged in bizarre behavior.

5. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observation from a religious point of view."

Based upon the foregoing allegations, plaintiff commenced this action for violation of the clergy-penitent privilege and for intentional infliction of emotional distress. In addition, the complaint asserts a cause of action against Rabbi Weinberger for defamation.

Upon a motion to dismiss pursuant to CPLR 3211(a)(7), the court is required to construe the complaint liberally, accepting all of the facts alleged as true and affording plaintiff the benefit of any possible inference.

                (See, Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511.)  "[T]he 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 also, Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121.)   Upon a motion for summary judgment, it is incumbent upon the court to draw all reasonable inferences in favor of the non-moving party and it may not pass upon issues of credibility.  (See, Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725;  175 Check Cashing Corp. v. Chubb Pac Indem. Group, 95 A.D.2d 701, 464 N.Y.S.2d 118.)
                

Upon the conversion of this motion to one for summary judgment, the parties submitted further affirmations. Essentially, plaintiff has reiterated the claims made in the complaint, alleging that it was both improper and actionable for defendants to divulge privileged and sensitive communications which they had received from her.

In opposition, defendants contend that they were compelled by Jewish law to reveal the confidences to plaintiff's husband, his attorney and the court for the protection of both the husband and the children. Additionally, they argue that plaintiff was not seeking spiritual counseling or advice in what Rabbi Flaum describes as their "encounter" and both claim that a third person was present at the time, as to Flaum, plaintiff's mother and, as to Weinberger, plaintiff's friend, Yael Hirsh. According to Rabbi Weinberger, plaintiff described "the most intimate details of her marriage" in the presence of her friend, which surprised him. According to Rabbi Flaum, Dr. Lightman advised him that he and his wife were having marital problems--that she was deviating from Orthodox tradition and, he believed, was in "adulterous relationships." Weeks later, plaintiff and her mother appeared at his office and berated him for speaking to Dr. Lightman. In the course of the heated exchange, plaintiff admitted "she had stopped engaging in religious purification laws" and was "seeing men in social settings even though she was still married to Dr. Lightman." Both defendants admit notifying the husband and claim that, in doing so, they were acting in accordance with their obligation as Rabbi and spiritual advisor and, further, that this was to protect the four "innocent" children of the marriage.

Defendants argue that the causes of action for violation of the clergy-penitent privilege must be dismissed since no private cause of action exists. They claim that breach of the privilege is merely a violation of an evidentiary rule, and that the sole remedy is the exclusion of the communication from evidence.

DISCUSSION

(a) Fiduciary Duty of Confidentiality--Clergy-penitent privilege

While it is true that a cause of action does not automatically exist for breach of an evidentiary rule, our courts have repeatedly recognized that violation of certain privileges does give rise to a common law cause of action for breach of the fiduciary duty of confidentiality. (See, Oringer v. Rotkin, 162 A.D.2d 113, 556 N.Y.S.2d 67; cf., Madden v. Creative Services, 84 N.Y.2d 738, 744, 622 N.Y.S.2d 478, 646 N.E.2d 780.) Thus, a cause of action has been recognized for violation of the physician-patient privilege (see, Doe v. Roe, 190 A.D.2d 463, 599 N.Y.S.2d 350; Tighe v. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d 99; see also, Anker v. Brodnitz, 98 Misc.2d 148, 152-153, 413 N.Y.S.2d 582, affd. 73 A.D.2d 589, 422 N.Y.S.2d 887, app. dismissed 51 N.Y.2d 703, 432 N.Y.S.2d 1026, 411 N.E.2d 795); the psychologist-patient privilege (Oringer v. Rotkin, supra); the psychiatrist-patient privilege (MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801); the social worker-client privilege (Harley v. Druzba, 169 A.D.2d 1001, 565 N.Y.S.2d 278) [as to scope of privilege in terms of confidentiality, generally, see also, People v. Tissois, 72 N.Y.2d 75, 531 N.Y.S.2d 228, 526 N.E.2d 1086; Community Service Soc. v. Welfare Inspector General, 91 Misc.2d 383, 398 N.Y.S.2d 92, affd. 65 A.D.2d 734, 411 N.Y.S.2d 188]; and the attorney-client privilege (Krouner v. Koplovitz, 175 A.D.2d 531, 572 N.Y.S.2d 959.) Cognizable claims have Plaintiff acknowledges that an action for violation of the clergy-penitent privilege has not as yet been upheld and that the issue is one of first impression in this State and, as far as appears, in this country. However, by way of analogy to the foregoing privileges, she argues that the clergy has a similar fiduciary duty vis-a-vis the penitent and should be held to the same stringent standard of care as has been imposed upon other professionals, namely, to hold such disclosures sacred and not to reveal confidential communications.

been premised upon the breach of a fiduciary or contractual relationship.

Plaintiff points to the care and diligence by most responsible members of the clergy in safeguarding confidences, as the reason the issue in this case has never arisen. In fact, this Court is aware of only one reported decision which squarely addressed the issue. In Snyder v. Evangelical Orthodox Church, 216 Cal.App.3d 297, 264 Cal.Rptr. 640, plaintiffs had confessed their adulterous relationship to certain members of the clergy. Although made in confidence, the confession was disclosed to others, including the assembled congregation, the Church Board of Elders and a gathering of priests, ministers, pastors and guests. Plaintiffs asserted claims, inter alia, for breach of fiduciary duty and infliction of emotional distress. In moving to dismiss, defendants argued that the court lacked jurisdiction over conduct which was "ecclesiastical in nature."

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