State of New York
Supreme Court : County of Monroe

- against -

Index No. 2000/12263

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

A sexual relationship between a Methodist minister and a married parishioner is the stuff of scandal, but it is not necessarily the basis for a law suit. In general, the rule remains that sexual matters between consenting adults give rise to no cause of action, whatever the surrounding circumstances. There is, however, an increasingly noticeable trend in the case law to permit recovery in situations in which one party is peculiarly vulnerable to the other. In one of the best-known of such fact patterns, the sexual exploitation of patients by psychiatrists or other therapists, the legal theory is that of professional malpractice.

When the plaintiff is merely a member of the defendant's congregation, courts have seen no difficulty in applying the general rule barring actions as a result of a consensual relationship. Results differ, though, when the plaintiff is receiving private counselling from the defendant, an increasing part of the work of the clergy in all denominations. Reasoning that such counselling is analogous to sessions with a psychologist, some attorneys have proposed a theory of clergy malpractice. No court has accepted this approach (see, e.g., Schmidt v Bishop, et al., 779 F Supp 321, 328 [SDNY 1991]). In several cases, however, the minister has been held liable for breach of a fiduciary duty (see, e.g., Doe v Evans et al., 814 So2d 370 [S Ct Fla 2002]; F.G. v MacDonell et al., 150 NJ 550, 696 A2d 697 [S Ct NJ 1997]).

This is not the law in New York, where such conduct is treated as the intentional tort of sexual abuse. In Langford v Roman Catholic Diocese of Brooklyn, et al. (271 AD2d 494), for example, the plaintiff sued under theories of breach of fiduciary duty, negligent and intentional infliction of emotional distress and battery, among others. The Second Department, in dismissing the complaint as time barred, stated

Regardless of how they were pleaded, these causes of action sought to recover damages for the unwelcome, intentional conduct by [defendant] and were thus governed by a one-year Statute of Limitations (271 AD2d, at 495).

Unwelcome sexual contact requires, of course, that the plaintiff not consent. In the present case, as in all cited ones, the plaintiff did agree to the contact, either verbally or through conduct. It is necessary, then, for a court to find that the counselling relationship was so unequal that the plaintiff was factually incapable of consenting to sexual activity. This requires something beyond mere participation in therapy. Not every type of counselling has the potential for undermining those elements of self awareness, self-confidence and conscious control that together support our sense that, in general, people properly bear the consequences for the decisions they make.

In addition, it is clear that the parishes, dioceses, and governing bodies of the institutions that employ individual clergy defendants are not liable for their acts under a theory of respondeat superior, as sexual abuse is not within the scope of a clergyman's employment--something of a massive understatement (Paul J.H. v Lum et al., 291 AD2d 894, 895). If these institutional defendants have had notice of the individual tortfeasor's propensities, however, they may be sued for negligent hiring, training, retention and supervision (loc. cit.).

With these principles in mind, the court now turns to the facts. All parties but the Rev. Ten Eyck have moved for summary judgment, and in weighing the defendants' motions the plaintiffs are entitled to every positive inference that can be drawn from the record. Unfortunately for the plaintiffs, however, their own papers are internally inconsistent. Certain documents claim that the relationship between Rev. Ten Eyck and Mrs. Cleary ended in February 1999, which would make the present action--commenced in November 2000--time barred. Others state that it ended a year later, when Mr. Cleary first uncovered evidence of the affair. This discrepancy is especially important because the plaintiffs must establish that Rev. Ten Eyck and Mrs. Cleary were in a counselling relationship during the alleged abuse, and that the relationship was such as would conceivably vitiate her consent.

The plaintiffs have failed to show this. In addition they have failed to establish that the institutional defendants had any notice of either the sexual relationship or Rev. Ten Eyck's supposed propensity to seduce female parishioners. The key elements of their case are without evidentiary support.

Wende Cleary's affidavit contains 189 numbered paragraphs and is accompanied by dozens of exhibits. (Many of the exhibits deal with a different matter entirely and are apparently appended so the court might be aware of how the church had handled similar matters.) She states that she engaged in counselling with Rev. Ten Eyck from January 27, 1999 to February 7, 2000, and that from October 1999 until February 7, 2000, he engaged her "in inappropriate conduct during our counselling relationship."

Of the inappropriateness of the conduct there is no doubt; the two were involved in an adulterous sexual relationship. What Mrs. Cleary fails to show is that the adultery coincided with the counselling. Her own statements and the exhibits attached show that the counselling relationship ended in April, 1999. The character of the relationship as it developed beginning in October of that year was quite different; rather than acting as an advisor and therapist, Rev. Ten Eyck presented himself as a vulnerable man completely smitten with Mrs. Cleary's charm, and his e-mail messages to her contain not advice but passionate avowals of devotion and undying love.

It does appear that Mrs. Cleary and Rev. Ten Eyck first met in the context of counselling. Wende Cleary was certainly troubled; she suffered from bulimia and was taking anti-depressant medications. In January 1999 the minister gave her a leaflet advertising his credentials and expertise in counselling. In February, 1999, he had her complete something called a gene-o-gram, a kind of narrative family tree detailing stress-producing events in her family's past.

It is also clear that Rev. Ten Eyck's conversation was very personal in these early sessions, but Mrs. Cleary's narration shows nothing that could be considered improper except perhaps in retrospect. She herself began to feel attracted to Rev. Ten Eyck, and decided to stop the counselling. After a few more meetings, during which Rev. Ten Eyck admitted romantic feelings towards the plaintiff and at least once kissed her on the lips, the two stopped seeing each other. Mrs. Cleary, upset by the attention and the unwelcome kiss, ignored him for several months.

The kiss was of course a battery, at least nominally; but it was also more than a year before the summons and complaint in this action was filed, and can no longer form the basis for a law suit. Nor does the plaintiff allege any sexual contact during this period. The affair itself arose more than six months later.

From September 1999 Rev. Ten Eyck began what looks like a deliberate campaign of seduction. Mrs. Cleary states that he came to visit her repeatedly, and at what she called a counselling session he told her that he could no longer contain his feelings for her. The sexual part of the relationship began then.

The two met repeatedly for what Mrs. Cleary consistently calls counselling sessions. Rev. Ten Eyck took her hand and played songs for her in church, met her in restaurants, and they engaged in hurried sexual encounters in his car. He told her of his unhappy marriage, described the happiness they would feel as husband and wife, told her God wanted her to be happy and that her husband could never make her so, and more.

The character of this relationship is revealed in far more detail than one might like in the e-mail messages preserved by plaintiff. (These are not dated with the year, but at oral argument plaintiffs' counsel stated that they were sent in February 2000.) The selection reproduced in the record was prepared by Mrs. Cleary to distribute to some friends to show "that our relationship has been very mutual." Both parties send endearments and share fantasies with each other; nothing suggests anything other than mutual fascination and vulnerability. Mrs. Cleary describes herself as initially offended and guilt-stricken by her pastor's attentions, but on the strength of the e-mail messages this reaction did not last.

Nothing in the record raises a question of fact that this apparent mutuality was vitiated by a counselling relationship. There is no evidence at all that Mrs. Cleary counselled with her minister during this period. Merely calling each meeting a counselling session is inadequate; one cannot convert clandestine trysts into psychological counselling by labelling alone. The only evidentiary fact to which plaintiffs point that gives any support to their contention is the supposed administration of a "Meyer Briggs" test on February 6, 2000. However, a message which Mrs. Cleary dates February 5 (in which she is quoted as telling Rev. Ten Eyck that he was the love of her life) shows that the minister took this test himself, identifying his psychological type as "ENTP". There is no unequivocal proof other than the plaintiff's affidavit that she took the test herself, and she does not mention Rev. Ten Eyck's having done so. The record, then, suggests at most that the Meyer Briggs test was part of a mutual exploration of personality rather than a tool in a therapeutic relationship.

The remaining unquestionable fact in this case is that on February 8, 2000, Mr. Cleary discovered some of the e-mail messages on the family computer, and confronted his wife with the evidence of an affair. It was not until some time later, after discussions with her own psychologist, that Mrs. Cleary "discovered that [she] had been sexually and emotionally exploited by Pastor Ten Eyck, and *** had grown emotionally dependent upon him." The Clearys then filed a complaint with the church.

This complaint, exhibit B, is significantly inconsistent with the rest of the plaintiffs' papers. It was sent to Bishop Kim on or about September 22, 2000. The formal judicial complaint prepared by church counsel James Pollard was necessarily dependent on the Clearys' accounts, because they are the only ones listed as complainants; and that document, plaintiff's exhibit FF, states that the relationship (which is not therein described as sexual) ended on April 21, 1999. Nothing in either exhibit suggests any connection between the two after that date.

It is not clear why the plaintiffs failed to inform the church of the sexual relationship that followed. Whether this lack of candor is connected with the fact that Mrs. Cleary circulated selected e-mail messages to some of her friends with the year of transmission omitted is also unclear, but the inconsistency makes her present contentions even more dubious than they might be otherwise.

Rev. Ten Eyck admitted the affair, ascribing his poor judgment and violation of his duties to his own marital problems. He eventually resigned the ministry, and upon his resignation the church terminated disciplinary proceedings.

It is a truism that summary judgment puts all parties to their proof. While the evidence provided by plaintiffs must be credited in weighing the defendants' motions, it must also be remembered that a party's choice of terminology is not in itself evidence. Just as one cannot prove the existence of a contract by assertions alone (see, e.g., Kosson v Joshua, 203 AD2d 112, 113-113), it is also impossible to establish a counselling relationship by the cumulative assertions contained in plaintiff's affidavit.

No question of fact as to any such relationship exists. Pastor Ten Eyck's habit of counselling congregants in public places is exhaustively proved, but one cannot reason from this fact to the conclusion that all meetings in public places were therefore counselling sessions.

Whatever counselling took place between the parties ended in the spring of 1999, and no one could mistake Rev. Ten Eyck's pursuit of Mrs. Cleary from the fall of that year on to be anything other than romantically motivated. As passages in Mrs. Cleary's affidavit imply, "counselling" was a convenient cover story should the two be seen together. The court gives it no more weight. Indeed, it seems that for some time Mrs. Cleary thought of the relationship as honestly-felt and reciprocal. It was not until months afterwards that she "discovered", with the aid of a psychologist, that she had been exploited by Rev. Ten Eyck. There is no way to tell if this interpretation, which absolves Mrs. Cleary of blame, is accurate; the pastor's protestations of love may in fact have sincere, and a very different conclusion might have come about had Mr. Cleary not discovered the affair in February. The tardiness of that "discovery", though, is further support for the conclusion that the relationship was at least outwardly mutual.

The record shows, therefore, that no triable question of fact exists as to the character of the relationship here. However reprehensible Rev. Ten Eyck's conduct may be, it was not such as would raise the implication that Mrs. Cleary was incapable of consent. His knowledge of her prior psychological issues do not alter this conclusion. The presumption that adults are capable of granting and withholding consent to sexual relationships is not overcome by the evidence here presented.

Although Rev. Ten Eyck has not moved for summary judgment himself, summary judgment motions search the record, and judgment may be granted to a non-moving party (CPLR 3212[b]; Merritt Hill Vineyards v Windy Heights Vineyards, 61 NY2d 106). The court grants it to Rev. Ten Eyck, and the complaint is dismissed as against him. The remaining defendants all argue that they are not liable because Rev. Ten Eyck committed no tort. But this would be the rule only if the action proceeded on a theory of respondeat superior, and as noted above this theory has been rejected in cases of sexual abuse. There are other valid defenses raised by these parties, though, and the complaint should be dismissed against them as well.

Notice, of course, is an indispensable part of any action for negligent hiring, retention, or supervision. The plaintiffs have shown no notice. They point to a letter that was sent to defendant Lubba on December 13, 1999, and even complain that the church's internal investigation did not include speaking to the plaintiffs. The court cannot see, though, why the church hierarchy would be expected to speak to the plaintiffs following this letter, because it deals with other parishioners and with matters far removed from this relationship. If the plaintiffs are referred to in this letter they are never mentioned by name.

Hearsay allegations, especially in plaintiff David Cleary's papers , claim that the Rev. Ten Eyck had admitted an improper relationship to other parishioners, that parishioners told Mr. Cleary about it, and that the church should have known about these matters. Such statements are obviously insufficient to support or respond to a summary judgment motion, and the plaintiffs--who are offended by the use of an attorney's affirmation from defendant--should certainly know this. Defendant Lubba, on the other hand, has presented a sworn affidavit stating that he had no knowledge whatsoever of Rev. Ten Eyck's conduct until after the relationship with the plaintiff had ended. Bishop Kim has provided a similar affidavit.

The case of defendant Hosanna Junction is even more clear, because according to the structure of the Methodist church individual churches have no right to hire, fire, or discipline their ministers. Thus, Hosanna Junction would have been unable to take any action with respect to Rev. Ten Eyck's conduct even had that body known about it.

In short, no cause of action can be shown against any of the defendants. Rev. Ten Eyck has destroyed his ministry and his reputation, but has committed no actionable tort. The institutional defendants, while they hired and promoted him, cannot be shown to have had notice of any improper tendencies that would render them liable. Mr. Fellows may prepare an order dismissing the complaint, without costs or disbursements.

DATED: Rochester, New York

August 26, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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