Marmelstein v. Kehillat

• Decision Date: 23 August 2007
• Docket Number: No. 306,306
• Parties: ADINA MARMELSTEIN, Respondent, v. KEHILLAT NEW HEMPSTEAD: THE RAV ARON JOFEN COMMUNITY SYNAGOGUE, Defendant, and MORDECAI TENDLER, Appellant.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 33

841 N.Y.S.2d 493

2007 NY Slip Op 6504

ADINA MARMELSTEIN, Respondent, v. KEHILLAT NEW HEMPSTEAD: THE RAV ARON JOFEN COMMUNITY SYNAGOGUE, Defendant, and MORDECAI TENDLER, Appellant.

No. 306

Appellate Division of the Supreme Court of the State of New York, First Department.

August 23, 2007.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Glen S. Feinberg and Katherine Hammond Gallè of counsel), for appellant.

Kramer & Dunleavy, L.L.P., New York City (Lenore Kramer and Jonathan R. Ratchik of counsel), for respondent.

OPINION OF THE COURT

SULLIVAN, J.

At issue on this appeal is the viability of plaintiff's causes of action for breach of fiduciary duty and intentional infliction of emotional distress. Since the complaint alleges nothing more than thinly veiled claims of seduction, prohibited by Civil Rights Law § 80-a and couched otherwise to avoid that statutory bar, we reverse and dismiss these causes of action.

The allegations of the complaint, which must be taken as true on a motion to dismiss for failure to state a cause of action (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]), are as follows. In 1994, plaintiff became acquainted with defendant Mordecai Tendler, the founder and spiritual leader of defendant synagogue. Known within the Orthodox Jewish community as a scholar, educator and community leader, defendant held himself out as a counselor and advisor with an expertise in women's issues. In 1996, plaintiff began attending services at the synagogue. Defendant advised plaintiff with respect to her personal, legal and financial problems, and represented that he would assist her in finding a prospective husband so she would be able to marry and have children as she wished. Beginning in November 2001, the two began a sexual relationship that lasted through May 2005.

Plaintiff alleges that she was induced by defendant to engage in this physical relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children." He told her she was "closed to the possibility of finding a husband" and "would never find a husband in her current state." He advised her "to permit him to have sexual intercourse with her so that her `life will open up and men will come' to her." He told her he "was as close to God as anyone could get," and engaging in sexual relations with him would be her "only hope." The relationship did not lead to the outcome plaintiff desired. Rather, she alleges, defendant "physically and emotionally abused [her] for his own sexual pleasure and gratification," and warned that if she told anyone about their sexual relationship he "would have her placed in a straight jacket," "have her put in the penitentiary," and "would turn the community against her."

The action was commenced in December 2005, asserting four causes of action against defendant and one against the synagogue for negligent retention. On defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) as against him, the court granted the motion as to the causes of action for fraud and negligent infliction of emotional distress, and denied the motion as to the claims for breach of fiduciary duty and intentional infliction of emotional distress. Since plaintiff did not appeal from the partial grant of the motion, only the two latter causes of action are at issue here.

As to the claim for breach of fiduciary duty, the complaint alleges that defendant "occupied a position as fiduciary to the plaintiff ... as her counselor, advisor and therapist and owed her a relationship of trust and confidence," which he breached. Plaintiff asserts that she was physically violated, her reputation impugned, and that she was ostracized from her synagogue and lost her standing in the community. The claim for intentional infliction of emotional distress alleges that defendant engaged in conduct—including falsely inducing plaintiff into a sexual relationship, physically violating and abusing her, and causing her to be harassed, threatened, intimidated and ostracized by the community—which would and did result in severe emotional distress.

Pursuant to section 80-a of the Civil Rights Law, originally enacted as section 61-b of the Civil Practice Act (L 1935, ch 263), "[t]he rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished. No act done within this state shall operate to give rise ... to any such right of action." A cause of action for seduction is broadly defined to cover "any conduct on the part of a man, without the use of force, in wrongfully inducing a woman to surrender to his sexual desires" (Coopersmith v Gold, 172 AD2d 982, 984 [1991]).

Distilled to its essence, the complaint alleges that plaintiff was induced by defendant, who "represented himself as an advisor, a father figure and a god," to engage in a sexual relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children." Since the conduct alleged here falls squarely within the embrace of Civil Rights Law § 80-a, whether couched as a claim for breach of fiduciary duty or intentional infliction of emotional distress, it is not actionable.

In any event, the complaint fails to state a cause of action for breach of fiduciary duty. "One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation" (Restatement [Second] of Torts § 874). "A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation" (id., Comment a). It is thus clear that to maintain a cause of action for breach of fiduciary duty, the existence of a duty is essential. Plaintiff argues that since defendant held himself out as a counselor and advisor with an expertise in women's issues, he "owed a fiduciary duty to [plaintiff] and a duty not to abuse their relationship of trust and confidence."

"Fiduciary is a vague term, and it has been pressed into service for a number of ends" (Doyle v Turner, 90 F Supp 2d 311, 333 [2000], affd sub nom. Hughley v Local 1199, Drug, Hosp. & Health Care Empls. Union, RWDSU, 231 F3d 889 [2000] [internal quotation marks omitted], quoting Black's Law Dictionary 640 [7th ed], quoting D.W.M. Waters, The Constructive Trust, at 4 [1964]). The allegations that defendant held himself out as a counselor and advisor with an expertise in women's issues are merely general allegations; the mere giving of advice that is in turn accepted is not sufficient to create a fiduciary relationship.

Significantly, it should be noted that the complaint conspicuously avoids any reference to defendant as a rabbi or even an allegation that plaintiff was a member of his congregation. While he is alleged to have advised plaintiff "with respect to her personal, legal and financial problems," there is no allegation that he counseled her with respect to religious matters. No doubt, these omissions are intended to avoid entanglement with First Amendment concerns (see Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494, 495 [2000] [cause of action to recover damages for breach of fiduciary duty arising out of sexual relationship between a parishioner and a member of the clergy properly dismissed as it would require courts to "venture into forbidden ecclesiastical terrain"]).

We cite Langford merely to note the complaint's studied avoidance of any reference to religious counseling—a curious omission in light of defendant's position as spiritual leader of the synagogue plaintiff attended. This, as we noted, is an obvious ploy to stay clear of the First Amendment (see Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293 [2005], cert denied 546 US 818 [2005]). That Wende C. left open the question of whether a fiduciary relationship may arise "between a cleric and a parishioner under very different circumstances, not present here" (at 299) does nothing to advance the dissent's position, especially since that case did not involve veiled allegations of seduction.

While plaintiff asserts that defendant "occupied a position as fiduciary ... as [plaintiff's] counselor, advisor and therapist," there is no claim that he held himself out to be a professional counselor, that the parties had a professional relationship, that he was trained to be a therapist^* in any particular specialty or even that he was counseling her in a specific area. On the contrary, as noted, she claims that he counseled her "with respect to her personal, legal and financial problems." That plaintiff may have succumbed to defendant's persuasive power and may have been exploited by him for his own sexual gratification is insufficient to impose a legal duty on him, entitling plaintiff to the recovery of damages. She must allege more than her subjective belief in defendant's rectitude and honesty. "[A] fiduciary duty cannot be imposed unilaterally" (United States v Chestman, 947 F2d 551, 567 [2d Cir 1991], cert denied 503 US 1004 [1992]). The dissent offers no authority to support its conclusion that defendant's alleged claim of expertise in a particular area coupled with advice to plaintiff, on which she allegedly relied, is sufficient for the imposition of a fiduciary duty.

While informal fiduciary relationships may be found to exist between friends or family members (see e.g. Penato v George, 52 AD2d 939, 942 [1976], appeal dismissed 42 NY2d 908 [1977]; Cody v Gallow, 28 Misc 2d 373 [1961]), in those cases the plaintiff suffered a pecuniary injury. Here the alleged harm is that plaintiff was sexually exploited, and as noted, actions based on such a claim are prohibited by statute.

Since the cause of action for intentional infliction of emotional distress is...