Summary
holding a priest's sexual abuse of a child was, as a matter of law, not within the scope of employment
Summary of this case from Zeranti v. United StatesOpinion
July 15, 1994
Appeal from the Supreme Court, Onondaga County, Roy, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant Casey's motion to dismiss the clergy malpractice cause of action. The instances of wrongful conduct alleged in the complaint constitute intentional torts, and, "`once intentional offensive conduct has been established, the actor is liable for assault and not negligence'" (Schmidt v Bishop, 779 F. Supp. 321, 325, quoting Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 376). Moreover, we are unaware of any authority supporting the proposition that sexual abuse by a member of the clergy is cognizable as "clergy malpractice" (see, e.g., Nally v. Grace Community Church, 47 Cal.3d 278, 763 P.2d 948, cert denied 490 U.S. 1007; Moses v. Diocese of Colo., 863 P.2d 310 [Colo], cert denied 490 U.S. 1007; Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584; White v. Blackburn, 787 P.2d 1315 [Utah App]).
The court also properly granted the motion of defendants St. Paul's Elementary School, St. Paul's Church and the Roman Catholic Diocese of Syracuse, incorrectly sued as Saint Paul's Academy, Saint Paul's Parish and the Diocese of Syracuse of the Roman Catholic Church, respectively, to dismiss the cause of action alleging liability under the doctrine of respondeat superior. An employer may be liable for the acts of an employee, whether negligent or intentional, if the acts complained of are within the scope of employment and in furtherance of the employer's business (Noto v. St. Vincent's Hosp. Med. Ctr., 160 A.D.2d 656, 656-657, lv denied 76 N.Y.2d 714; see, Cornell v State of New York, 46 N.Y.2d 1032; Koren v. Weihs, 190 A.D.2d 560). The alleged sexual assault was not within the scope of employment (see, Cornell v. State of New York, supra) and cannot be said to have been in furtherance of the employer's business.