CASE # 3311

Plaintiff claimed that defendant minister, while acting as plaintiff’s pastor, learned of plaintiff’s criminal record, which was a public record, and then, along with a church employee, intentionally distributed that information to the church congregation in a deliberate attempt to humiliate her and intimidate her so that she would cease criticizing defendant pastor’s financial management of the church. The trial court held: (1) Plaintiff failed to state a claim against the pastor for breach of fiduciary duty, because the complaint and summary judgment record failed to assert facts establishing a fiduciary relationship. What was missing were the kinds of facts and other evidentiary support establishing that plaintiff, as a congregant, became uniquely vulnerable and incapable of self-protection as a result of her relationship with defendant pastor. The trial court noted that in New York the clergy-penitent privilege does not give rise to a fiduciary duty subjecting members of the clergy to civil liability for disclosure of confidential communications. (2) Plaintiff failed to establish a claim for intentional infliction of emotional distress. First, plaintiff’s criminal record was a public document and while its distribution may have been embarrassing, it carried no constitutional right to privacy. Second, plaintiff remained unable to form the requisite causal link between defendants and the actual distribution of the document. Plaintiff’s own deposition testimony indicated that she did not know who had obtained her criminal record, who had distributed the copies, or how the information retrieval and dispersion had been accomplished.— Guice-Mills v. Forbes, 21 Misc. 3d 599, 863 N.Y.S.2d 874 (N.Y. Sup. Ct. N.Y. Co. 2008), Index # 124735/02. Dated September 4, 2008. Opinion by J. Walter B. Tolub.

Plaintiff enjoyed a relationship with the Riverside Church in Manhattan since 1973 Between the mid-1980’s through the end of 2002, plaintiff had taken a more active role in the Church, and was involved in many of its activities. In 1989, defendant Dr. James A. Forbes, Jr. was hired by the Church as its Principal Minister. Plaintiff claimed that she became friends with Forbes, and later, because of her background in psychiatry, Forbes sought advice from her on Church and personal matters Plaintiff claimed that during these private conversations she shared information concerning her personal life, and her strategies for dealing with her own personal challenges. Plaintiff characterized Forbes as being her “friend, confidant, as well as [her] Pastor and spiritual counselor.”

In 1997, plaintiff, in an unrelated matter, was convicted of criminal mischief. During the two-year course of her criminal proceeding, defendant Forbes counseled plaintiff and attended court with her in his capacity as friend and Pastor.

Alleged mismanagement of Church funds by defendant Forbes was the source of much criticism in the early 2000’s and was featured in a 2002 New York Times article written by nonparty witness Daniel J. Wakin. While interviewing defendant Forbes and two other Church officials in July of 2002, plaintiff’s criminal conviction was revealed to Mr. Wakin. Wakin did not include this information in his article.

In 2002, plaintiff claimed that copies of her conviction record were circulated to the Church Staff and congregation in an deliberate attempt to humiliate her and intimidate her from criticizing defendant Forbes’ management of the Church. Plaintiff contended that this information was intentionally disseminated by Forbes and defendant Frank Boone, a Church employee. Plaintiff alleged intentional infliction of emotional distress by both defendants and breach of fiduciary duty by Pastor Forbes. The trial court granted summary judgment in favor of defendants on both claims.

Breach of fiduciary claim. Whether formal or informal, a fiduciary relationship is one which is “founded upon trust or confidence reposed in one person in the integrity of another.” Apple Records, Inc. v. Capitol Records & EMI, 137 A.D.2d 50, 57, 529 N.Y.S.2d 279 (1st Dept 1988). It only exists however, when one of the parties is “under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d 15, 21, 862 N.S.2d 311, 892 N.E.2d 375 (2008), Case # 3226. The inquiry into whether such a relationship exists is therefore fact-specific, and focuses largely on whether there exists reliance, de facto control and dominance within the relationship. Marmelstein, 11 N.Y.3d 15, 21, Case # 3226.

While courts may decide secular disputes involving religious institutions on neutral principles of law, see, Vione v. Tewell, 12 Misc. 3d 973, 820 N.Y.S.2d 682 (Sup. Ct. NY Co. 2006), Case # 2351; Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d 136 (1983); Park Slope Jewish Center v. Congregation B’nai Jacob, 90 N.Y.2d 517, 664 N.Y.S.2d 236, 686 N.E.2d 1330 (1997); Berger v. Temple Beth-El of Great Neck, 303 A.D.2d 346, 756 N.Y.S.2d 94 (2nd Dept 2003), to date, the Court of Appeals (New York’s highest court) had left open the question as to whether a viable claim for breach of fiduciary duty may independently exist as against a member of the clergy. The Court’s reluctance was derived from the concern over the fact that the very nature of this type of claim would likely require the interpretation of religious doctrine, thereby creating troubling constitutional implications under the First Amendment. See Lightman v. Flaum, 97 N.Y.2d 128, 137, 736 N.Y.S.2d 300, 761 N.E.2d 1027 (2001), Case # 1114; Marmelstein, 11 N,Y.3d 15, 21, Case # 3226; Wende C. v. United Methodist Church, 4 N.Y,3d 293, 794 N.Y.S.2d 282, 827 N.E.2d 265 (2005), cert denied, 546 U.S. 818, 124 S. Ct. 346, 163 L. Ed. 2d 57 (2005), Case # 1842N). The trial court noted that the New York courts had declined to find the existence of a fiduciary duty in connection with N.Y. CPLR 4505, the statute creating the clergy-penitent privilege. See Lightman v. Flaum, 97 N.Y.2d 128, Case # 1114, holding that CPLR 4505 did not create a fiduciary duty subjecting members of the clergy to civil liability for disclosure of confidential communications. See Note 4 of the trial court’s opinion..

This was not to say that a claim for breach of fiduciary duty against a member of the clergy is destined to fail. However, allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric. To establish that a course of formal counseling resulted in a cleric assuming “de facto control and dominance” over the congregant, a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue. Marmelstein, 11 NY3d 15, 22, Case # 3226.

The vast majority of all of the cases addressing causes of action for breach of fiduciary duty against members of the clergy, involve some form of clergy sexual misconduct. Plaintiff’s claim of breach of fiduciary duty arose out of the claim that defendant Forbes, while acting as plaintiff’s Pastor, learned of plaintiff’s criminal record, which was a public record, and then intentionally distributed that information to the Church congregation. Plaintiff’s complaint, in pertinent part, read as follows:

9. The distribution of the record of plaintiff’s conviction for criminal mischief was in breach of defendant Forbes’ fiduciary obligations as her minister, including his obligations to keep confidential his communications with her in his pastoral capacity.

10. As a result of this breach of fiduciary obligations, plaintiff has suffered severe emotional distress, embarrassment, loss of sleep, loss of appetite and other psychological injuries.

What was missing from plaintiff’s complaint and the record as a whole however, were the kinds of facts and other evidentiary support necessary under Marmelstein establishing that plaintiff, as a congregant, became uniquely vulnerable and incapable of self-protection as a result of her relationship with defendant Forbes. Thus defendant Forbes was entitled to summary judgment dismissing the claim for breach of fiduciary duty.

The court noted that plaintiff’s breach of fiduciary claim failed not because of an excessive entanglement with the First Amendment, but because, like the plaintiff in Marmelstein, the facts as asserted within the complaint failed to demonstrate the existence of a fiduciary relationship. See Marmelstein, 11 NY3d 15, 22, Case # 3226 (“Judged by this standard, Marmelstein’s allegations fall short of a cause of action for breach of fiduciary duty Marmelstein has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests.” See Note 8 of the trial court’s opinion.).

Intentional infliction of emotional distress. Imposition of liability for the intentional infliction of emotional distress requires a demonstration that a defendant’s conduct was (1) extreme and outrageous, (2) intended to cause severe emotional distress, (3) formed the nexus between the conduct and the injury, and (4) resulted in severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). As such, success turns on whether the conduct complained of is extreme, amounting to more than mere threats or annoyances, and ultimately, “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215 (1978), quoting Restatement (Second) of Torts § 46, comment d; Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983).

The threshold of outrageousness is so difficult to attain, that of the intentional infliction of emotional distress claims considered by the Court of Appeals, “every one has failed because the alleged conduct was not sufficiently outrageous.” Seltzer v. Bayer, 272 A.D.2d 263, 264, 709 N.Y.S.2d 21 (1st Dept. 2000) (allegations of vandalism – tossing lighted cigarettes and eggs into plaintiff’s yard— and threats of vandalism – threatening to paint a swastika on the front of plaintiff’s home – not enough to be held as outrageous conduct), quoting Howell, 81 N.Y.2d at 122. Those claims for this intentional tort which have been successful have been generally limited to those which have been “supported by allegations detailing a longstanding campaign of deliberate, systematic, and malicious harassment of the plaintiff.” Seltzer, 272 A.D.2d at 264).

In the instant case, plaintiff was faced with several obstacles with respect to her intentional tort claim, at least two of which were insurmountable. By far, the most problematic obstacle was the simple fact that the document distributed here, plaintiff’s criminal record, was a public document. The distribution of this record while perhaps embarrassing, on its own carried no constitutional right to privacy. See, Cline v. Rogers, 87 F.3d 176, 180 (6th Cir 1996) (“one’s criminal history is arguably not a private “personal matter” at all, since arrest and conviction records are matters of public record”); Whalen v. Roe, 429 U.S. 589, 599 (1977); Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976).

The second obstacle was that despite the completion of significant discovery, plaintiff remained unable to form the requisite causal link between either defendant and the actual distribution of the document. Plaintiff’s own deposition testimony indicated that she did not know who had obtained her criminal record, who had distributed the copies, or how the information retrieval and dispersion had been accomplished. Not only was plaintiff’s testimony largely conclusory in nature, it was also further diluted by the testimony of other deponents, much of which suggested that plaintiff’s criminal conviction was known to multiple individuals associated with the Church for some time prior to the complained of events.

Clearly, someone obtained copies of plaintiff’s criminal record and intentionally distributed them in an attempt to embarrass her. The timing of the claimed distribution was such that it begged the question as to whether perhaps the distribution of this information was related to other very public church disputes. But under the law, to prevail on a cause of action for intentional infliction of emotional distress and more particularly, to survive a motion for summary judgment, plaintiff had to meet all four elements enunciated in Howell and its progeny with proof amounting to more than mere conclusions, expressions of hope, or unsubstantiated allegations. Zuckerman, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). This had not been accomplished on the record before the court. As such, defendants were granted summary judgment dismissing the claim for intentional infliction of emotional distress.