Doe v. Roman Catholic Diocese of Rochester

Hurlbutt and Centra, JJ.

(dissenting in part). We respectfully dissent in part. In our view, Supreme Court properly concluded that this case is indistinguishable from Wende C. v United Methodist Church, N.Y. W. Area (6 AD3d 1047 [2004], affd 4 NY3d 293 [2005], cert denied 546 US 818 [2005]), and thus properly granted defendants’ motions to dismiss the complaint in its entirety for failure to state a cause of action. In Wende C., in which the facts are markedly similar to those alleged in the instant complaint, this Court held, inter alia, that Supreme Court had properly searched the record and granted the defendant cleric summary judgment dismissing the cause of action for clergy malpractice against him. We wrote that “[n]o such cause of action is cognizable in New York, because any attempt to define the duty of care owed by a member of the clergy to a congregant or parishioner would result in excessive entanglement on the part of the court in matters of religion” (id. at 1050). We further held that the court had properly dismissed the complaint against the defendant cleric “insofar as it may be construed to *1395allege a breach of fiduciary duty,” inasmuch as “there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice” (id.). We reasoned that, because the alleged relationship of trust and confidence between the defendant cleric and the plaintiffs arose solely out of a pastoral relationship and the pastor was not licensed or otherwise credentialed as a therapeutic counselor, a claim for breach of fiduciary duty could not be resolved by the application of neutral principles of law (see id. at 1051).

In affirming our order in Wende C., the Court of Appeals concluded that the plaintiffs had not “specifically pleaded” a cause of action for breach of fiduciary duty against the defendant cleric, and left “open for another day the question whether such a claim may arise between a cleric and a parishioner under very different circumstances” (4 NY3d at 299). Having left that question open, the Court left unaffected our holding that a parishioner who engaged in sexual relations with her pastor in the course of pastoral counseling has no cause of action for breach of fiduciary duty against a pastor where the pastor has no recognized license or credentials as a therapeutic counselor.

The only relevant distinctions between Wende C. and this case are that the complaint herein contains an expressly denominated cause of action for breach of fiduciary duty and that Wende C. was determined in the context of summary judgment rather than a motion to dismiss. The cases are otherwise identical, in particular to the extent that both involve a claim or cause of action for breach of fiduciary duty based on sexual relations between a parishioner and her pastor during pastoral counseling, and neither pastor possessed any license or credentials as a therapeutic counselor.

Under these circumstances, the doctrine of stare decisis requires that we follow our own precedent and affirm the order granting defendants’ motions to dismiss the complaint (see Dufel v Green, 198 AD2d 640 [1993], affd 84 NY2d 795 [1995]; see generally People v Taylor, 9 NY3d 129, 148-149 [2007]; People v Damiano, 87 NY2d 477, 488-489 [1996, Simons, J., concurring]). Present—Scudder, EJ., Hurlbutt, Centra, Green and Gorski, JJ.