Opinion
12834 Index No. 156132/16 Case No. 2020-02258
01-12-2021
A.M., et al., Plaintiffs–Appellants, v. HOLY RESURRECTION GREEK ORTHODOX CHURCH OF BROOKVILLE, et al., Defendants–Respondents, Father Demetrios Kehagias, Defendant.
Herman Law, New York (Jeffrey M. Herman of counsel), for appellants. Steven F. Goldstein, L.L.P., Carle Place (Howard S. Kass of counsel), for Holly Resurrection Greek orthodox Church of Brookville, New York, respondent. Rutherford & Christie, LLP, New York (David S. Rutherford of counsel), for Greek Orthodox Archdiocese of America and Archbishop Demetrios Trakatellis, respondents.
Herman Law, New York (Jeffrey M. Herman of counsel), for appellants.
Steven F. Goldstein, L.L.P., Carle Place (Howard S. Kass of counsel), for Holly Resurrection Greek orthodox Church of Brookville, New York, respondent.
Rutherford & Christie, LLP, New York (David S. Rutherford of counsel), for Greek Orthodox Archdiocese of America and Archbishop Demetrios Trakatellis, respondents.
Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered February 26, 2020, which granted the motions of defendants Holy Resurrection Greek Orthodox Church of Brookville, New York a/k/a Greek Orthodox Church of the Holy Resurrection and Church of the Holy Resurrection (the Church) and Greek Orthodox Archdiocese of America and Archbishop Demetrios Trakatellis (the Archdiocese defendants) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiffs are a minor child who was sexually assaulted by the infant son of defendant Father Demetrios Kehagias, and his sister, also a minor, who partially witnessed the assault. The assault occurred during a weekly coffee reception following services at the defendant Church, where Kehagias was the temporary substitute priest.
"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ( N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ). Although issues of fact exist with respect to whether the Church or Archdiocese defendants exercised sufficient control over the method and means of Kehagias's work to render him their employee, it is clear as a matter of law that Kehagias was not acting in furtherance of Church or Archdiocese business and within the scope of his employment at the time of the incident (see id. ). While it was reasonably foreseeable that Kehagias would attend the weekly coffee reception, it was not foreseeable or in furtherance of Church/Archdiocese business for him to knowingly introduce a potential child sexual predator into this environment, without notifying anyone, and leave him unattended.
Because Kehagias was not acting on the Church or Archdiocese defendants' behalf in committing the subject misconduct, his knowledge regarding the risk of child sexual abuse posed by his son may also not properly be imputed to the Church and Archdiocese defendants (see generally Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 [1985] ; Skiff–Murray v. Murray, 17 A.D.3d 807, 810, 793 N.Y.S.2d 243 [3d Dept. 2005] ).
Plaintiffs' negligent supervision, negligent failure to train, negligent failure to warn, and negligent premises liability claims fail insofar as there is nothing in the record to indicate that the Church or Archdiocese defendants had any awareness of Kehagias's son's propensity for sexual violence (see generally Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293–295, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993] ; Herman v. State, 63 N.Y.2d 822, 823, 482 N.Y.S.2d 248, 472 N.E.2d 24 [1984] ; Osvaldo D. v. Rector Church Wardens & Vestrymen of Parish of Trinity Church of N.Y., 38 A.D.3d 480, 480–481, 834 N.Y.S.2d 94 [1st Dept. 2007] ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 [2d Dept. 1997], lv dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997], cert denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 [1997] ).
Plaintiffs' negligent infliction of emotional distress claim fails in the absence of any allegations of extreme and outrageous conduct by the Church or Archdiocese defendants (see generally Xenias v. Roosevelt Hosp., 180 A.D.3d 588, 589, 120 N.Y.S.3d 298 [1st Dept. 2020] ; Sheila C. v. Povich, 11 A.D.3d 120, 130–131, 781 N.Y.S.2d 342 [1st Dept. 2004] ).