Opinion
2012-11-9
John MAZZARELLA, individually and as Father of Four Minor Children of Ages 5, 7, 9, and 11, Plaintiff–Appellant, v. SYRACUSE DIOCESE, Bishop James M. Moynihan, Bishop Thomas J. Costello and Fr. John W. Broderick, Defendants–Respondents. (Appeal No. 2.)
Jeff Anderson & Associates PA, St. Paul, MN, The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Plaintiff–Appellant. Hancock Estabrook, LLP, Syracuse (Maureen E. Maney of Counsel), for Defendants–Respondents Syracuse Diocese, Bishop James M. Moynihan and Bishop Thomas J. Costello.
Jeff Anderson & Associates PA, St. Paul, MN, The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Plaintiff–Appellant. Hancock Estabrook, LLP, Syracuse (Maureen E. Maney of Counsel), for Defendants–Respondents Syracuse Diocese, Bishop James M. Moynihan and Bishop Thomas J. Costello.
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this action, individually and as the father of four children who allegedly were sexually abused, seeking damages arising from that abuse. In appeal No. 2, plaintiff appeals from an order and judgment granting the motion of defendants Syracuse Diocese, Bishop James M. Moynihan, and Bishop Thomas J. Costello (collectively, Church defendants) for partial summary judgment dismissing the fourth through sixth causes of action and any individual claims of plaintiff and denying plaintiff's cross motion for partial summary judgment on liability on those causes of action. In appeal No. 3, plaintiff appeals from an order directing the Church defendants to disclose only certain documents sought by plaintiff, following Supreme Court's in camera review of those documents and appropriate redaction thereof.
With respect to the order in appeal No. 2, we note that the fourth and fifth causes of action assert the commission of intentional torts under the theory of respondeat superior. Under that theory, an employer is “ ‘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’ ” ( Burlarley v. Wal–Mart Stores, Inc., 75 A.D.3d 955, 956, 904 N.Y.S.2d 826). Although the issue whether a particular act is within the scope of employment is usually one of fact for the jury ( see Riviello v. Waldron, 47 N.Y.2d 297, 302–303, 418 N.Y.S.2d 300, 391 N.E.2d 1278), there is no liability as a matter of law if the employee was “acting solely for personal motives unrelated to the furtherance of the employer's business” ( Xin Tang Wu v. Ng, 70 A.D.3d 818, 819, 894 N.Y.S.2d 141). It is well settled in New York that sexual abuse by clergy is not within the scope or furtherance of the employment ( see Wende C. v. United Methodist Church, N.Y. W. Area, 6 A.D.3d 1047, 1052–1052, 776 N.Y.S.2d 390,affd.4 N.Y.3d 293, 794 N.Y.S.2d 282, 827 N.E.2d 265,cert. denied546 U.S. 818, 126 S.Ct. 346, 163 L.Ed.2d 57;Paul J.H. v. Lum, 291 A.D.2d 894, 895, 736 N.Y.S.2d 561;Joshua S. v. Casey, 206 A.D.2d 839, 839, 615 N.Y.S.2d 200).
With respect to the sixth cause of action, sounding in breach of fiduciary duty, the Church defendants established that there was no fiduciary relationship between them and plaintiff's family ( see Mars v. Diocese of Rochester, 6 A.D.3d 1120, 1121, 775 N.Y.S.2d 681,lv. denied3 N.Y.3d 608, 785 N.Y.S.2d 25, 818 N.E.2d 667,rearg. dismissed5 N.Y.3d 850, 806 N.Y.S.2d 168, 840 N.E.2d 137). Finally, the court properly granted that part of the Church defendants' motion with respect to plaintiff's individual claims inasmuch as plaintiff has not demonstrated any direct harm as a result of the negligence of the Church defendants ( see Dana v. Oak Park Marina, 230 A.D.2d 204, 207, 660 N.Y.S.2d 906).
In appeal No. 3, plaintiff contends that the court should have ordered disclosure of defendant Father John W. Broderick's complete personnel file rather than only portions of it, following the court's in camera review of the file. Preliminarily, we note that plaintiff does not ask this Court to review the documents in camera but, rather, plaintiff seeks a broad ruling that he was denied due process because of the “method and manner” used by the court in precluding disclosure of some of the documents in the personnel file. Plaintiff's present contention concerning the court's procedure in reviewing the personnel file is unpreserved for our review inasmuch as plaintiff made no objection on the record to that procedure ( see generally Atkins v. Guest, 201 A.D.2d 411, 411, 607 N.Y.S.2d 655). In any event, we have conducted our own independent review of the documents and conclude that the court did not abuse its discretion in precluding disclosure of portions of the personnel file for the various reasons set forth in the court's decision.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.