Summary
applying N.Y. C.P.L.R. § 214 to claims against dioceses arising out of sexual abuse by priest
Summary of this case from Zimmerman v. Poly Prep Country Day Sch.Opinion
November 19, 1997
(Appeal from Order and Judgment of Supreme Court, Erie County, Notaro, J. — Dismiss Complaint.)
Present — Green, J. P., Lawton, Wisner, Balio and Boehm, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted the motion of Reverend S. to dismiss the complaint because it was time-barred. The gravamen of the complaint against Reverend S. is that he sexually abused plaintiff during the course of a pastoral counseling relationship that ended in 1990. Regardless of how it is pleaded, sexual abuse is an intentional tort subject to a one-year Statute of Limitations ( see, Joshua S. v. Casey, 206 A.D.2d 839; Doe v. Roe, 192 A.D.2d 1089, 1090; Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 376; see also, CPLR 215), and plaintiff's commencement of this action against Reverend S. in November 1993 was untimely. Plaintiff failed to establish that the Statute of Limitations was tolled by reason of insanity ( see, CPLR 208; McCarthy v. Volkswagen of Am., 55 N.Y.2d 543, 548-549) or that she was "wrongfully induced * * * to refrain from timely commencing an action by deception, concealment, threats or other misconduct" and thus that defendants should be equitably estopped from asserting the Statute of Limitations as a defense ( Zoe G. v. Frederick F. G., 208 A.D.2d 675). Further, we reject the contentions that the doctrine of duress ( see, Overall v. Klotz, 52 F.3d 398, 404-405; see also, Steo v. Cucuzza, 213 A.D.2d 624, 626; Zoe G. v. Frederick F. G., supra) and the "delayed discovery" rule ( see, Bassile v. Covenant House, 191 A.D.2d 188, lv denied 82 N.Y.2d 656) have any application to this case.
The court erred, however, in dismissing the complaint against the Diocese of Buffalo, New York (Diocese), the Bishop of the Diocese and President of the Diocesan Corporation (Bishop), the Chancellor and Vicar General of the Diocese and Secretary of the Diocesan Corporation (Vicar General), and the Parish. The complaint states a cause of action against those defendants for negligent retention or supervision of Reverend S. ( see, Kenneth R. v. Roman Catholic Diocese, 229 A.D.2d 159, 164-165, cert denied ___ U.S. ___, 118 S Ct 413; Doe v Hartz, 970 F. Supp. 1375, 1427-1432; Moses v. Diocese of Colorado, 863 P.2d 310, 323-329, cert denied 511 U.S. 1137; Destefano v Grabrian, 763 P.2d 275, 286-288 [Colo]; Does 1 — 9 v Compcare, Inc., 52 Wn. App. 688, 694-695, 763 P.2d 1237, 1241-1242). Further, plaintiff should have the opportunity to conduct discovery concerning the knowledge of the Diocese and Parish, and their officers and administrators, regarding prior conduct of Reverend S. ( see, CPLR 3211 [d]).
The three-year Statute of Limitations applies to a cause of action for negligent retention or supervision ( see, CPLR 214), and defendants failed to establish that the action was commenced more than three years after the last act of alleged sexual abuse. We have examined plaintiff's remaining contentions and conclude that they are without merit. Thus, we modify the order and judgment by denying the motion of the Diocese, Parish, Bishop and Vicar General for dismissal of the complaint, and we reinstate the complaint against those defendants.