The two-Justice dissent in the Appellate Division concluded that summary judgment should not be granted because of contested allegations of sexual *300battery alleged to have occurred within one year of the action which was filed in November 2000 and because of the defendant pastor’s breach of a fiduciary relationship. Based upon the dissent at the Appellate Division, I dissent here. I write only to emphasize several points.
Defendant Pastor T. did not oppose the plaintiffs’ motion for summary judgment against him. Rather, plaintiffs moved for summary judgment and the defendants, other than Pastor T., cross-moved for summary judgment. The motion court denied the plaintiffs’ motion and granted the defendants’ motion. It further searched the record and, on its own motion, granted summary judgment in favor of Pastor T. against the plaintiffs.
It is undisputed that the plaintiffs received marital counseling from Pastor T. The plaintiffs contend that while they were undergoing counseling, said defendant committed battery by forcing himself sexually upon Wende C. Plaintiffs contend further that Pastor T. breached his fiduciary duty by engaging in an inappropriate sexual relationship during the time that he was counseling the marital couple.
Insofar as sexual battery is concerned, there is a question of fact as to what occurred, when it occurred and whether there was consent. As for the allegation of a breach of a fiduciary relationship, I cannot agree with the majority at the Appellate Division that there is no difference between an allegation of clergy malpractice, which would improperly involve the courts in ecclesiastical matters, and breach of a fiduciary relationship.* What plaintiffs are alleging is that Pastor T. held himself out as a person qualified to give marital counseling, that they went to him seeking counseling for marital problems and that he breached a duty owed to them. Thus, plaintiffs are making allegations similar to those made against a psychiatrist who holds himself out as a person able to assist with problems of a psychological nature and then abuses the trust. In discussing their disagreement with the majority, the dissenters at the Appellate Division stated:
“We disagree with the majority’s conclusion that ‘there is no meaningful analytical distinction between a claim of breach of fiduciary duty by a cleric and one for clergy malpractice.’ In our view, there is a subtle and important difference between a clergy *301malpractice cause of action and one sounding in breach of fiduciary duty. A cause of action based upon breach of fiduciary duty rests not on the violation of a generalized professional standard, but on the abuse of a particularized relationship of trust (see Mandelblatt v Devon Stores, 132 AD2d 162, 168 [1987], quoting Restatement [Second] of Torts § 874, Comment a [‘ “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” ’]).” (6 AD3d 1047, 1055 [2004].)
Plaintiff Wende C. alleges that between November 2, 1999, and February 2000, while the pastor was giving marriage counseling to the plaintiffs, he engaged in instances of unwanted sexual contact against Wende C. These included an instruction to perform oral sex on him on November 2, 1999, sexual fondling and other sexual acts in a car on November 16, 1999, kissing on December 24, 1999, and fondling on January 21, 2000. All of these instances allegedly occurred after counseling sessions. Moreover, the statute of limitations had not run on these incidents prior to the filing of the lawsuit.
In addition, plaintiffs’ allegation is that while Pastor T. was engaging in marital counseling, he breached a duty of trust by engaging in sexual encounters. In the words of the dissenters at the Appellate Division, “while the existence of a clergy malpractice claim would depend on defining and evaluating a cleric’s religious duty, a claim for breach of fiduciary duty depends only upon an evaluation of whether a relationship of trust and confidence exists and whether that trust and confidence have been abused.” (Id. at 1056.)
Other states have concluded that an action for breach of a fiduciary duty can be maintained where a pastor engages in an inappropriate sexual relationship when pastoral counseling is sought (see, for example, F.G. v MacDonell, 150 NJ 550, 696 A2d 697 [1997]; Sanders v Casa View Baptist Church, 134 F3d 331 [Tex 1998]; Destefano v Grabrian, 763 P2d 275 [Colo 1988]).
For these reasons I would permit plaintiffs to prove their allegations against all of the defendants.
*302Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents in part in a separate opinion.
Order affirmed, with costs.
The majority opinion here does not discuss the issue of the difference between clergy malpractice and breach of a fiduciary duty.