In a case of first impression in the Appellate Division, First Department, Fullerton Beck LLP attorneys successfully argued for the dismissal of a claim for breach of fiduciary duty in a Child Victim Act (CVA) case.
In Truesdell v. Dominican Friars, the plaintiff brought suit against numerous entities, including the Roman Catholic Diocese of Brooklyn, a Roman Catholic church and a province of Dominican fathers. The plaintiff’s complaint alleged he was sexually abused in 1963 by a priest he met as a parishioner of a local church. The claims included negligent hiring, supervision, retention and direction, gross negligence, and breach of fiduciary duty. The plaintiff alleged that the defendants, including the province, knew or should have known of the priest’s dangerous propensities and either condoned or covered them up.
In a CPLR 3211 motion to dismiss, the province argued, inter alia, that there was not, and could not be, a foundation for a breach of fiduciary duty claim. The trial Court denied the motion in its entirety.
The Appellate Division, First Department modified the order to affirm it as it relates to the claims of negligent hiring, supervision, retention and direction, and gross negligence but dismissed the claim for breach of fiduciary duty. The Court explained that the essential elements of such a claim, de facto control and dominance, were absent; thus, the plaintiff could not establish a “special relationship.”
At the oral argument of the appeal, the Court also made clear its notion that the plaintiff’s status as an altar boy could not establish a special relationship.
This is the first time the Appellate Division, First Department has struck such a claim in a CVA matter. The decision demonstrates that plaintiffs cannot create a higher standard of care in a negligent supervision claim to avoid a notice requirement.
A plaintiff’s burden is to demonstrate notice of dangerousness. A claim of breach of fiduciary duty does not need such a foundation. It merely needs to show de facto dominance and control, which creates a “special relationship” that is sometimes based on the facts alone. This type of claim in CVA cases is often a re-statement of a claim for clergy malpractice, which is nonactionable.
This decision demonstrates that using the claim as a pressure point to implicate a “deep pocket” will not succeed.