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  Hoatson V. New York Archdiocese

By Stallman J.
Supreme Court
October 26, 2009

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_52174.htm

Fr. Robert M. Hoatson, Plaintiff,

against

New York Archdiocese, CARDINAL EDWARD EGAN, THE NEWARK ARCHDIOCESE, ARCHBISHOP JOHN J. MYERS, CONGREGATION OF CHRISTIAN BROTHERS, FR. JOHN O'BRIEN, BR. LAURENCE BOSCHETTO, BR. PAUL KEVIN HENNESSY, THE ROMAN CATHOLIC DIOCESE OF ALBANY, and BISHOP HOWARD J. HUBBARD, Defendants.

102958/07

For Plaintiff:

John A. Aretakis, Esq.

353 East 54th St

New York, NY 10022

For Defendant Br. Boschetto

Olga Fuentes Skinner, Esq.

Kasowitz Benson Torres & Friedman LLP

1633 Broadway

New York, NY 10019

(212) 506-1700

For Defendants the Archdiocese of New York and Cardinal Egan

Daniel R. Alonso, Esq.

Robert Grass, Esq.

Andrew J. Gropper, Esq.

Kaye Scholer, LLP

425 Park Avenue

New York, NY 10022

(212) 836-8000

For Defendants Congregation of Christian Brothers, Fr. O'Brien and Br. Hennessy Anthony D. Dougherty, Esq.

Tarter, Kinsky & Drogin, LLP

470 Park Avenue South, 14th Fl

New York, NY 10016

(212) 481-8585

For Defendants Archdiocese of Newark and Archbishop Myers

Charles M. Carella, Esq.

G. Glennon Troublefiled, Esq.

Raymond W. Fisher, Esq.

Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein

Five Becker Farm Road

Roseland, NJ 07068

(973) 994-1700

with co-counsel

Forchelli & Forchelli

32-02 30th Avenue

Long Island City, NY 11102

(718) 278-6117

For Defendants Roman Catholic Diocese of Albany & Bishop Hubbard

Michael L. Costello, Esq.

Tobin & Dempf, LLP

33 Elk St

Albany, NY 12207

(518) 463-1177

Michael D. Stallman, J.

In this action, plaintiff Fr. Robert M. Hoatson alleges, among other things, that fellow priests of the Catholic Church sexually abused him starting in 1970, when he entered religious life, until 1982. Plaintiff claims that he was denied promotions and experienced retaliation because he refused and complained of the alleged sexual advances of fellow priests. Plaintiff also claims he experienced retaliation when he complained of alleged inappropriate sexual behavior of priests with minors [FN1], and of alleged sexual abuse of minors.[FN2] Plaintiff claims that, in May 2003, he was terminated from his [*2]position at a parochial school within the Archdiocese of Newark, as a result of his speaking critically about the Catholic Church at a public hearing before the New York State Senate in Albany, on behalf of victims of clergy sexual abuse.

In motion sequence number 001, defendant Br. Laurence Boschetto moves to dismiss the complaint and for sanctions against Hoatson pursuant to 22 NYCRR 130-1.1. In motion sequence number 002, defendants the Archdiocese of New York s/h/a/ New York Archdiocese and Edward Cardinal Egan s/h/a Cardinal Edward Egan move to dismiss the complaint pursuant to CPLR 3211 (a) (2), and (7); and Hoatson cross-moves to amend the complaint. In motion sequence number 003, defendants Congregation of Christian Brothers, Fr. John O'Brien, and Br. Paul Kevin Hennessy move to dismiss the complaint pursuant to CPLR 3211 (a) (7) and 3212, and for sanctions against Hoatson pursuant to 22 NYCRR 130-1.1. In motion sequence number 004, defendants Roman Catholic Diocese of Albany and Bishop Howard J. Hubbard move to dismiss the complaint pursuant to CPLR 3211 (a) (2), (3), (5), and (7). In motion sequence number 005, defendants the Archdiocese of Newark s/h/a Newark Archdiocese and Archbishop John J. Myers move to dismiss the complaint pursuant to CPLR 3211 (a) (2), (7), and (8).

This decision addresses all five motions and plaintiff's cross motion.

BACKGROUND

Plaintiff Fr. Robert M. Hoatson is an ordained Catholic priest currently serving with defendant Archdiocese of Newark. Complaint 14.

Plaintiff allegedly first entered religious life in 1970, joining defendant Congregation of Christian Brothers (Christian Brothers), where his first superior was allegedly defendant Br. Paul K. Hennessey. Plaintiff later met defendant Laurence Boschetto, an alleged close friend of Hennessey. According to plaintiff, Hennessey made sexual overtures to him. Id. 165. Plaintiff also claims that in 1974, Boschetto sexually abused plaintiff in New Jersey, which continued for the next five years. Id. 172.

On May 24, 1997, plaintiff was allegedly ordained a priest and worked in New Jersey. Id. 50. In May 2003, plaintiff allegedly testified before the New York State Senate in Albany, on behalf of victims of clergy sexual abuse. Id. 56. Plaintiff contends that, after his testimony, defendant Bishop Howard J. Hubbard, the head of defendant Roman Catholic Diocese of Albany, contacted defendant Archbishop John J. Myers, the head of the Archdiocese of Newark , and had plaintiff fired from his position as Director of Schools at Our Lady of Good Counsel Parish in Newark, New Jersey.

On December 13, 2005, plaintiff commenced an action in the United States District Court of the Southern District of New York against the New York Archdiocese and Cardinal Egan; the Archdiocese of Newark and Archbishop Myers; Christian Brothers, Father O'Brien Brother Boschetto, and Brother Hennessy; and the Roman Catholic Diocese of Albany and Bishop Hubbard. In the federal action, plaintiff alleged that, "for years he witnessed and experienced sexual abuse at the hands of the clergy, and that after he publicly exposed the abuse and coverup and the Catholic Church's handling of sexual abuse scandals, defendants fired him from his position as Director of Schools at a Catholic School in Newark." Costello Affirm., Ex B [Hoatson v New York Archdiocese, SD NY, Feb. 8, 2007, Crotty, J., 05 Civ 10467 (PAC)], at 1. The federal complaint asserted nine causes of action, two of which were based on federal law, the Racketeer Influenced and Corrupt Organizations Act (RICO), and Title VII of the Civil Rights Act of 1964. [*3]

By opinion and order dated February 8, 2007, Judge Crotty dismissed plaintiff's RICO claims, finding that plaintiff lacked standing and that plaintiff failed to adequately allege the requisite "enterprise" or "racketeering activity." Id. at 6, 8. Judge Crotty dismissed plaintiff's claim under Title VII against the Archdiocese of Newark and Myers because plaintiff did not allege that he exhausted his administrative remedies, and the claim was time-barred. Id. at 16. In light of the dismissal of all federal claims with prejudice, Judge Crotty declined to exercise supplemental jurisdiction over plaintiff's state claims, which were dismissed without prejudice.

On March 2, 2007, plaintiff commenced this action in state court against Christian Brothers, Hennessey, and O'Brien (together, the Christian Brothers defendants); Boschetto; the Roman Catholic Diocese of Albany and Hubbard (together, the Albany Diocese defendants); the Archdiocese of Newark and Myers (together, the Newark Archdiocese defendants); and the New York Archdiocese and Egan, then the head of the New York Archdiocese (together, the New York Archdiocese defendants).

The March 2, 2007 complaint dated is very similar to the complaint in the federal action. It alleges six causes of action. The first alleges "violation of New Jersey statutory and common law and whistleblower laws and/or unlawful retaliatory action against all defendants." Complaint 86. The second alleges intentional infliction of emotional distress against the Newark Archdiocese defendants. The third alleges tortious interference with plaintiff's employment. The fourth alleges breach of fiduciary against all defendants. The fifth alleges a hostile work environment against the Newark Archdiocese defendants. Last, the sixth alleges illegal discharge by the Newark Archdiocese defendants.

According to defendants, plaintiff also served another complaint dated June 27, 2007. This complaint purports to be verified, but defendants claim that no verification was included with this complaint. The June 27, 2007 complaint contains a seventh cause of action not contained in the original complaint filed in this action.

In August 2007, Boschetto, the New York Archdiocese defendants, the Christian Brothers defendants, the Albany Diocese defendants, and the Newark Archdiocese defendants brought separate motions to dismiss the complaint as against them (Motion Seq. Nos. 001-005). On August 14, 2007, at 4:58 p.m, before defendants' motions were served, Hoatson personally e-mailed a new, unsigned complaint to defendants (the August 14, 2007 complaint). Three days later, Hoatson mailed an unsigned copy of the August 14, 2007 complaint to defendants.

Boschetto's motion to dismiss was originally returnable and submitted on September 17, 2007; the other defendants' motions were originally returnable on October 11, 2007. On October 10, 2007, Hoatson cross-moved for leave to amend the June 27, 2007 complaint and to have defendants accept the August 14, 2007 complaint.

The Court held a conference with the parties with respect to the motions on December 6, 2007. As indicated in their papers, defendants objected to plaintiff's cross motion as untimely. To resolve this dispute, the Court granted the parties additional time to respond to plaintiff's cross motion.Because defendants' motions were directed to the original pleading, and plaintiff cross-moved to amend the complaint, the Court also allowed defendants the option to direct their motions to the proposed amended pleading, which included the submission of additional papers, in the event that leave to amend were granted.

Following the conference, defendants again objected to the allegedly untimely service of [*4]plaintiff's papers, which was resolved at conferences by permitting the parties additional time to respond. When plaintiff submitted a letter to the Court regarding a case that plaintiff believed was relevant, the Court permitted the parties to submit additional briefs discussing that case.

DISCUSSION

As previously mentioned, plaintiff filed a complaint dated March 2, 2007 (Costello Affirm., Ex D), but plaintiff served defendants with another complaint dated June 27, 2007, which contained more allegations. Costello Affirm., Ex F. On these motions, none of the defendants argues that the June 27, 2007 complaint should be treated as a nullity, and their arguments are addressed to the allegations of the June 27, 2007 complaint. All the allegations of the March 2, 2007 complaint are contained in the June 27, 2007 complaint. Thus, unless otherwise stated, the complaint discussed hereafter refers to the June 27, 2007 complaint for the purposes of this decision.

Boschetto's Motion To Dismiss

Boschetto argues that plaintiff's claims against him should be dismissed as time-barred, because Boschetto's alleged sexual abuse of plaintiff occurred more than 25 years ago. Plaintiff argues that the statute of limitations was tolled, citing Zumpano v Quinn (6 NY3d 666 [2006]).

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff."

Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 (2d Dept 2008); Matter of Estate of Baird, 58 AD3d 958, 959 (3d Dept 2009); see Brignoli v Balch, Hardy & Scheinman, 178 AD2d 290, 290 (1st Dept 1991)("The defendant bears the burden of proof on an affirmative defense").

The complaint alleges that, "In 1974, Boschetto sexually assaulted plaintiff in Ventnor City, New Jersey, and continued the sexual abuse for nearly five years." Complaint 172. The complaint also alleges that, "Plaintiff has had no other sexual contact with anyone since 1982, the year the abuse by Christian Brothers ended." Complaint 174.

As Boschetto points out, in cases involving priests who allegedly sexually abused parishioners, courts have ruled that " sexual [assault] is an intentional tort subject to a one-year Statute of Limitations.'" Tserotas v Greek Orthodox Archdiocese of N. and S. Am., 251 AD2d 323, 324 (2d Dept 1998), citing Sharon B. v Reverend S., 244 AD2d 878, 879 (4th Dept 1997); Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494, 495-496 (2d Dept 2000); see Joshua S. v Casey, 206 AD2d 839 (4th Dept 1994). Here, plaintiff commenced this action on March 2, 2007, more than 25 years after Boschetto's alleged sexual assault and alleged sexual abuse of plaintiff, about 25 years after plaintiff had any sexual contact with anyone. Thus, Boschetto has met the initial burden of establishing that the time in which to sue him has expired.

Plaintiff invokes the doctrine of equitable estoppel. Equitable estoppel will "bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant's affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the [*5]institution of the legal proceeding." General Stencils v Chiappa, 18 NY2d 125, 128 (1966).

"The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense. . . Thus, this Court has held that equitable estoppel will apply where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.' Moreover, the plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations."

Zumpano, 6 NY3d at 673 (citation omitted).

Here, plaintiff asserts that defendants "cleansed" their files, covered up evidence, and rejected his reports of sexual abuse. In addition, defendants also allegedly made it known to plaintiffs that nothing would be done about his abuse, and that no one would be held accountable. Assuming that the allegations are true, as the Court must do on this motion, these allegations do not affect plaintiff's own ability commence a lawsuit against Boschetto. The allegation that plaintiff's complaint to Christian Brothers would be futile does not lead to the conclusion that plaintiff could not commence a lawsuit in a court of law. The alleged "cover up"did not prevent plaintiff from bringing suit.

In any event, "the party seeking to invoke the doctrine bears the burden of demonstrating that it was diligent in commencing the action within a reasonable time after the facts giving rise to the estoppel have ceased to be operational.'" Marincovich v Dunes Hotels and Casinos, 41 AD3d 1006 (3d Dept 2007)(citation omitted); see Steo v Cucuzza, 213 AD2d 624, 626 (2nd Dept 1995). Here, plaintiff is no longer a member of Christian Brothers.[FN3] The complaint alleges that plaintiff is currently a priest with the Archdiocese of Newark and a former member of Christian Brothers, of which Boschetto was a member. Complaint 10, 14. In citing his dependency on Christian Brothers for his housing, health care, and food as a basis for equitable estoppel (Complaint 188), plaintiff does not explain why he did not file a lawsuit within a reasonable time after he left Christian Brothers.[FN4]

The Court notes that plaintiff allegedly suffered from "post traumatic stress disorder, a sense of doom, nightmares, daymares, thoughts of suicide, and various neurotic thoughts . . . ." Complaint 47.In one case, a court ruled that post-traumatic stress disorder, coupled with an "overall inability to function [and] protect one's legal rights" may toll the statute of limitations period. Anonymous v Anonymous, 154 Misc 2d 46, 54 (Sup Ct, Suffolk County 1992). Even if that case should be followed, it would not apply here. Plaintiff alleges that, after Christian Brothers, he did advocacy work on behalf of survivors of sexual abuse, testified before the New York State Senate in Albany, and served as the Director of Schools at Our Lady of Good Counsel Parish in Newark, New Jersey. Complaint 53, 56, 61. These allegations do not indicate an overall inability to function and protect one's legal rights, especially given that plaintiff allegedly gave testimony before the New York State Senate.

In sum, plaintiff has not met his burden of demonstrating that the doctrine of equitable [*6]estoppel applies. Therefore, Boschetto's motion to dismiss is granted, and the seventh cause of action is dismissed.

Christian Brothers Defendants' Motion To Dismiss

"When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . the benefit of every possible favorable inference.'" AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 (2005)(citation omitted). "In assessing a motion under CPLR 3211(a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint." Leon v Martinez, 84 NY2d 83, 88 (1994).

The Christian Brothers defendants argue that plaintiff's claims of retaliation should be dismissed because: (1) they are nonjusticiable under the First Amendment to the United States Constitution; (2) the plaintiff does not allege any retaliation by these defendants; (3) the claims are time-barred; and (4) New Jersey state law does not apply. The Christian Brothers defendants further argue that the second cause of tortious interference should be dismissed because plaintiff's relationship to the Christian Brothers order was neither a contractual nor an employment relationship. As to the fourth cause of action, for breach of fiduciary duty, they contend that they had no fiduciary relationship with plaintiff, and that the cause of action is time-barred. Lastly, the Christian Brothers defendants assert that the allegations of sexual abuse are also time-barred.

First Cause of Action

"Since at least the turn of the [20th] century, courts have declined to interfere with ecclesiastical hierarchies, church administration, and appointment of clergy. Why they have done so remains a matter of some debate. Some courts have stressed the right to church autonomy secured by the Free Exercise Clause. Others have emphasized that taking sides in a religious dispute would lead an Article III court into excessive entanglement [with religion] in violation of the Establishment Clause. . . Finally, some courts have explained that [t]he right to choose ministers without government restriction underlies the well-being of religious communit[ies]."

Rweyemamu v Cote, 520 F3d 198, 208 (2d Cir 2008)(internal citations and quotation marks omitted). Federal courts have recognized that disputes involving the employment relationship between a minister and a church also present First Amendment concerns. In McClure v Salvation Army, the Court of Appeals, Fifth Circuit, ruled that

"application of the provisions of Title VII to the employment relationship existing between The Salvation Army and Mrs. McClure, a church and its minister[,] would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment."

460 F2d 553, 560 (5th Cir 1972). Therefore, the Fifth Circuit interpreted Title VII of the Civil Rights of 1964 not to regulate the employment relationship between a church and its minister. Other federal circuits have recognized the ministerial exception of Title VII. See Rweyemamu, 520 F3d at 206 [*7](collecting cases).[FN5] Courts have extended the ministerial exception to the other employment discrimination statutes, such as the Age Discrimination in Employment Act (Tomic v Catholic Diocese of Peoria, 442 F3d 1036 [7th Cir 2006]; Minker v Baltimore Annual Conference of United Methodist Church, 894 F2d 1354 [DC Cir 1990]) and the Americans with Disabilities Act. Werft v Desert Southwest Annual Conference of United Methodist Church, 377 F3d 1099 (9th Cir 2004); Starkman v Evans, 198 F3d 173 (5th Cir 1999).

Courts have indicated that the ministerial exception is not limited to employment discrimination statutes.

"[T]he ministerial exception to Title VII is based not on Title VII but, rather, on the First Amendment. Just as there is a ministerial exception to Title VII, there must also be a ministerial exception to any state law cause of action that would otherwise impinge on the church's prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers. To take a clear example, had Bollard brought a state law claim for breach of contract with an associated remedy of reinstatement, that would run afoul of the Free Exercise Clause because the remedy would require the church to employ Bollard, thereby interfering with the church's constitutionally protected choice of its ministers. "

Bollard v California Province of the Society of Jesus, 196 F3d 940, 950 (9th Cir 1999). Indeed, the Court of Appeals for the Third Circuit ruled that the ministerial exception "operates to bar any claim, the resolution of which would limit a religious institution's right to select who will perform particular spiritual functions." Petruska v Gannon Univ., 462 F3d 294, 307 (3rd Cir 2006). In Starkman, the Fifth Circuit extended the ministerial exception to the ADA and a Louisiana retaliatory discharge statute, reasoning that "like the ADA and Louisiana retaliatory discharge statute at issue in the instant case, Title VII is an anti-discrimination and anti-retaliation statute." 198 F3d at 175.

In arguing that plaintiff's retaliatory claim is not justiciable, the Christian Brothers defendants appear to argue that this Court should therefore recognize a ministerial exception to New Jersey's Conscientious Employee Protection Act (CEPA),[FN6] and other statutes and common law which [*8]plaintiff may invoke to hold the Christian Brothers defendants liable for the alleged retaliation.

Whether the ministerial exception should be extended to CEPA on First Amendment grounds is a complex analysis. The constitutional framework of whether a statute of general applicability violates the First Amendment has evolved since McClure first recognized the ministerial exception. In Employment Division, Department of Human Resources of Oregon v Smith (494 US 872 [1990]), the United States Supreme Court held, "[t]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." 494 US 872, 879. Smith arguably changed the legal framework of whether a neutral statute of general applicability, such as Title VII, violates the Free Exercise Clause. Thus, an issue is presented as to whether the ministerial exception remains valid in light of the United States Supreme Court's decision in Smith. See Corbin, Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham L Rev 1965 (2007).Further complicating this question is the impact, if any, of the Religious Freedom Restoration Act (RFRA) on the framework of Smith, as it pertains to the ministerial exception. First, RFRA sets forth a different test than Smith.[FN7] Second, in City of Boerne v Flores (521 US 507 [1997]), the United States Supreme Court ruled that RFRA does not apply to states because Congress exceeded its authority under the Constitution to make RFRA applicable to the states. Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418, 424 n 1 (2006). In sum, if RFRA modified the Smith framework as it relates to the issue of the continued validity of the ministerial exception, another issue would arise as to whether a ministerial exception to state laws, such as CEPA, should be reviewed under the test set forth in Smith, and not RFRA.

About half of the federal circuits have concluded that the ministerial exception survives Smith. Bryce v Episcopal Church in the Diocese of Colorado, 289 F3d 648 (10th Cir 2002); EEOC v Roman Catholic Diocese of Raleigh, N.C., 213 F3d 795, 800n*(4th Cir 2000); Gellington v Christian Methodist Episcopal Church, 203 F3d 1299 (11th Cir 2000); EEOC v Catholic Univ. of Am., 83 F3d 455 (DC Cir 1996); Combs v Central Texas Annual Conference of United Methodist Church, 173 F3d 343 (5th Cir 1999). Even if the ministerial exception remains valid, courts differ as to its scope of the exception. In one case, the Ninth Circuit ruled that the ministerial exception [*9]did not bar a claim of sexual harassment, based on unwelcome sexual advances, because no religious justification was offered for the harassment. Bollard, 196 F3d at 947, 950. However, the reasoning in Bollard appears to differ with the Fourth Circuit, which ruled that, "In quintessentially religious' matters, the free exercise clause of the First Amendment protects the act of a decision rather thana motivation behind it. In these sensitive areas, the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal content." Rayburn v General Conference of Seventh-Day Adventists, 772 F2d 1164, 1169 (4th Cir 1985) (citation omitted).[FN8]

The reported cases of the New York state courts have not addressed these issues. In Catholic Charities of Diocese of Albany v Serio (7 NY3d 510 [2006]), the New York State Court of Appeals acknowledged the ministerial exception, but provided little guidance. It stated, "[t]he existence of a limited exemption for ministers from antidiscrimination laws does not translate into an absolute right for a religiously-affiliated employer to structure all aspects of its relationship with its employees in conformity with church teachings." 7 NY3d at 524.

"[A] court should not decide a case on constitutional grounds where it can be resolved on nonconstitutional grounds; a constitutional issue should only be decided where it is unavoidable." Nussenzweig v diCorcia, 38 AD3d 339, 340 (1st Dept 2007); but see O'Connor v Church of St. Ignatius Loyola, 8 AD3d 125 (1st Dept 2004)(applying ministerial exception and declining to address remaining contentions). This is especially true given that the Christian Brothers defendants' 3argument for a ministerial exception to CEPA places the court of one state (New York) in the awkward position of having to consider whether an exception derived from the United States Constitution should be applied to the statute of another state (New Jersey). Given that the Christian Brothers defendants advanced other arguments in support of dismissing plaintiff's claim of retaliation, the issue is whether the Court must address the ministerial exception before all other arguments.

At first blush, it appears that the ministerial exception must be addressed first, because some courts view the ministerial exception as a bar to subject matter jurisdiction. Hollins v Methodist Healthcare, Inc., 474 F3d 223, 225 (6th Cir 2007); Cooper-Igwebuike v United Methodist Church, 160 Fed Appx 549, 2005 WL 3526785, 1(8th Cir 2005); Alicea-Hernandez v Catholic Bishop of Chicago, 320 F3d 698, 702-03 (7th Cir 2003). Questions of subject matter jurisdiction must be addressed before other arguments addressed to the merits. " The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it.'" Ballard v HSBC Bank USA, 6 NY3d 658, 663 (2006), quoting Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 (1997). However, other courts view the ministerial exception as a challenge to the legal sufficiency of the cause of action. Petruska, 462 F3d at 302; Elvig v Calvin Presbyterian Church, 375 F3d 951, 955 (9th Cir 2004). [*10]

In this Court's view, the ministerial exception is not a limit on the state court's subject matter jurisdiction. The ministerial exception does not exclude this Court (or any court) from adjudicating an entire category of cases (e.g., all cases involving clergy or religious institutions), which would more closely resemble other limitations on subject matter jurisdiction of the state courts, such as copyright cases or bankruptcy cases. The applicability of the ministerial exception appears to vary, depending on the factual circumstances of the case.

Moreover, in its origin, the ministerial exception is a creature of statutory interpretation. "[C]ourts have uniformly concluded that the Free Exercise and Establishment Clauses of the First Amendment require a narrowing construction of Title VII in order to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government." Bollard, 196 F3d at 945; see also Petruska, 462 F3d at 305 n 8 ("a narrow exception to prevent the unconstitutional enforcement of Title VII is the proper remedy"), citing Ayotte v Planned Parenthood of Northern New England, 546 US 320 (2006). In McClure, which created the ministerial exception, the Fifth Circuit stated, "if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." 460 F2d at 560, citing Ashwander v Tennessee Valley Auth., 297 US 288, 348 (1936). An argument that a statute does not apply to the case at hand is not an argument of subject matter jurisdiction, where the statute at issue is not one prescribing or withdrawing the court's jurisdiction.

The Court's ruling that the ministerial exception is not a question of subject matter jurisdiction should not be construed to mean that the Free Exercise Clause and Establishment Clause of the Constitution do not restrict the court's role in the resolution of civil disputes involving religious parties or institutions. For example, "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes," "because of a substantial danger that the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs," Serbian Eastern Orthodox Diocese for the United States of Am. and Canada v Milivojevich, 426 US 696, 709-710; see e.g Committee to Save St. Brigid's Inc. v Egan, 45 AD3d 375 (1st Dept 2007).

"The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs. Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution."

Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 286 (2007). Unlike Congregation Yetev Lev D'Satmar, Inc., this action is not a religious controversy, in the sense that the Court is not asked to resolve a disagreement between parties about differing religious doctrines or beliefs. Plaintiff's theories of recovery are based on secular principles of law, not religious doctrinal matters.

Therefore, the Court will consider the other arguments of the Christian Brothers defendants before entertaining the argument of the ministerial exception, which raises unsettled constitutional issues.

In the first cause of action, Hoatson claims that the defendants violated CEPA. As a threshold issue, the Christian Brothers defendants argue that New Jersey law, particularly CEPA, [*11]does not apply here because plaintiff's assignments with Christian Brothers were in New York and Massachusetts, not New Jersey. The complaint alleges that, at the end of August 1976, plaintiff moved into Blessed Sacrament High School (Complaint 31), which is in New Rochelle, New York. Hoatson Aff. at 13. The complaint alleges that he was transferred out purportedly as punishment over protesting the principal's behavior with teenage boys at the school. Complaint 31. While assigned to Catholic Memorial in Boston, plaintiff allegedly protested the actions of the chaplain of the school to the school administration, but "this was ignored and used against the plaintiff." Id. 42. "The plaintiff believes he was denied promotions and retaliated against because he would not participate in the homosexual relationships so rampant in the various schools, churches, and with brothers, priests, and supervisors." Id. 46.

Plaintiff does not address the argument that New Jersey law does not apply. Rather, plaintiff argues in his opposition papers that he has pled a prima facie case of employment discrimination (without specifying the applicable law) and that he has stated a claim for hostile work environment under the New York Human Rights Law. Plaintiff's Opp. Mem. at 19-21.

Because neither the complaint nor the plaintiff's affidavit in opposition specifically alleges that any retaliatory action took place in New Jersey, or that the decisions to retaliate against plaintiff were made in New Jersey, plaintiff fails to state a cause of action under CEPA against the Christian Brothers defendants. Compare D'Agostino v Johnson & Johnson, Inc., 133 NJ 516 (1993)(New Jersey law applied to allegations that a parent corporation in New Jersey orchestrated the bribing of a foreign official) with Norris v Harte-Hanks, Inc., 122 Fed Appx 566 (3d Cir 2004)(Pennsylvania law, not CEPA, applied to allegations of wrongful discharge, because employee worked in Pennsylvania, employer did not own, operate or maintain any facilities in New Jersey or employ anyone there during relevant time period, and termination decision was made by personnel in Pennsylvania).

Even assuming that CEPA applies to plaintiff's allegations of retaliation by the Christian Brothers defendants, CEPA has a statute of limitations of one year. NJ Stat Ann 34:19-5. As discussed previously, plaintiff left Christian Brothers in 1994. Any alleged retaliation occurred more than 12 years ago.

Plaintiff argues for the application of the doctrine of equitable estoppel. However, for the reasons already set forth in granting Brother Boschetto's motion to dismiss, equitable estoppel does not apply to the allegations against the Christian Brothers defendants. Thus, assuming that CEPA applies, so much of the first cause of action that seeks recovery under CEPA should be dismissed as time-barred.

In addition to the alleged violation of CEPA, the first cause of action also alleges a violation statutory and common law in New Jersey and New York. However, CEPA provides, in pertinent part, that "the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." NJ Stat Ann 34:19-8. "[O]nce a CEPA claim is instituted,' any rights or claims for retaliatory discharge based on a contract of employment; collective bargaining agreement; State law, whether its origin is the Legislature, the courts, the common law or rules of court; or regulations or decisions based on statutory authority, are all waived." Young v Schering Corp., 141 NJ 16, 29 (1995).

Thus, by asserting a claim under CEPA, plaintiff has waived all causes of action, whether [*12]under statutory or common law, relating to the allegations of retaliation. See Beasley v Passaic County, 377 NJ Super 585 (App Div 2005). " The waiver provision of CEPA applies to claims upon the institution of a CEPA claim, therefore a claim will not be saved merely because a court dismisses the underlying CEPA claim.'" Smith v Township of East Greenwich, 519 F Supp 2d 493, 510 (D NJ 2007)(citation omitted). Therefore, so much of the first cause of action that alleges violations of statutory and common law in New Jersey and New York, other than the CEPA, are dismissed.

Because the statute of limitations bars plaintiff's claims under CEPA, and because plaintiff has waived all other rights and remedies by asserting a claim under CEPA, the Court does not reach the issue of whether plaintiff's retaliation claim in the first cause of action should be dismissed on First Amendment grounds. Nussenzweig, 38 AD3d at 340 (court did not reach issue of whether defendant's use of plaintiff's photograph was entitled to First Amendment protection where statute of limitations barred action under Civil Rights Law 50).

Third Cause of Action

The third cause of action alleges tortious interference with plaintiff's employment. Plaintiff's employment relationship with the Archdiocese of Newark is presumed to be at will. Witkowski v Thomas J. Lipton, Inc., 136 NJ 385, 397 (1994); Murphy v American Home Prods. Corp., 58 NY2d 293, 303 (1983). For tortious interference, a contract terminable at will is considered a prospective contractual relation. Miller v Mount Sinai Med. Ctr., 288 AD2d 72, 72 (1st Dept 2001). "[W]here a suit is based on interference with a nonbinding relationship, the plaintiff must show that defendant's conduct was not lawful' but more culpable.' The implication is that, as a general rule, the defendant's conduct must amount to a crime or an independent tort." Carvel Corp. v Noonan, 3 NY3d 182, 190 (2004); see E Z Sockets, Inc. v Brighton-Best Socket Screw Mfg. Inc., 307 NJ Super 546, 559 (Chancery Div 1996), affd 307 NJ Super 438 (App Div 1997).

Here, the allegations that the Christian Brothers defendants used wrongful means to interfere with plaintiff's at will employment are vague and conclusory. The allegations that defendants engaged in a criminal conspiracy are identical to plaintiff's allegations for RICO liability in the federal action,[FN9] which Judge Crotty ruled were legally insufficient for RICO liability. His decision states, in pertinent part, "Plaintiff makes a laundry list of allegations in the amended complaint. Only three of them, however, could possible constitute predicate acts under RICO . . . . Pleading requires more than a recitation of the statute purportedly violated; and Plaintiff has failed to sufficiently allege any racketeering activity." See Costello Affirm., Ex A, at 7-8. Therefore, the third cause of action is dismissed as against the Christian Brothers defendants.

Fourth Cause of Action

Plaintiff's fourth cause of action, for breach of fiduciary duty, is time-barred as against the Christian Brothers defendants. As discussed previously, plaintiff left Christian Brothers in 1994, at least twelve years before plaintiff commenced this action, which is longer than any applicable [*13]limitations period.[FN10] Therefore, the fourth cause of action is dismissed as against the Christian Brothers defendants.

Seventh Cause of Action

The complaint alleges that Brother John Francis O'Brien crawled into the plaintiff's bed in the summer of 1979 and sexually assaulted him. Complaint 177. According to plaintiff, the abuse continued from 1979 to 1982. Id. Because the allegations of sexual assault occurred more than 25 years before plaintiff commenced this action, the one-year statute of limitations has run. For the reasons already discussed above in the context of Brother Boschetto's motion to dismiss, the doctrine of equitable estoppel does not apply here. Thus, the seventh cause of action is dismissed as time-barred as against the Christian Brothers defendants.

Sanctions

In addition to summary judgment, Boschetto and the Christian Brothers defendants seek sanctions against plaintiff. Boschetto argues that the claims brought by plaintiff are frivolous because they are time-barred, that plaintiff has repeatedly harassed and injured Boschetto through frivolous litigation, and despite warning, plaintiff brought this litigation containing the "same time-barred and baseless allegations against Mr. Boschetto." The Christian Brothers defendants also contend that the complaint is frivolous.

Given the nature of the disturbing claims, and the complexity of the procedural issues, and the uniqueness of the constitutional issues, the Court does not find that the complaint "could not be supported by a reasonable argument for an extension, modification or reversal of existing law." 22 NYCRR 130-1.1 (c) (1). Neither can it be said that the action was commenced or continued primarily to harass or maliciously injure defendants. See Brown v Metropolitan Transp. Auth., 256 AD2d 17, 18 (1st Dept 1998).

The Christian Brothers defendants also seek reasonable attorneys' fees and costs under Section 6 of New York's whistleblower law, Labor Law 740. However, it is not reasonable to infer the complaint alleged a violation of Labor Law 740. The complaint alleged a violation of CEPA (New Jersey's whistleblower statute) but made did not cite Labor Law 740.

New York Archdiocese Defendants' Motion To Dismiss [*14]

Plaintiff includes the New York Archdiocese defendants in the first cause of action, and the third and fourth causes of action for tortious interference and breach of fiduciary duty.

First Cause of Action

Plaintiff maintains that the New York Archdiocese defendants contributed to, and became involved in, the alleged retaliation by the Newark Archdiocese defendants and the alleged hostile work environment. Complaint 64. Like the Christian Brothers defendants, the New York Archdiocese defendants argue that the First Amendment to the United States Constitution precludes this Court from exercising subject matter jurisdiction over plaintiff's claims. For the reasons discussed above, this Court will consider the other arguments of the New York Archdiocese defendants before addressing this constitutional argument.

CEPA applies to an "employer," which the statute defines as "any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent." NJ Stat Ann 34:19-2. Because plaintiff does not allege that the New York Archdiocese defendants employed him, or acted, directly or indirectly, on behalf of the Archdiocese of Newark with its consent, his claim under CEPA against the New York Archdiocese defendants is legally insufficient.

Because plaintiff asserted a claim under CEPA, plaintiff waived all other claims in the first cause of action based on a violation of statutes and common law. In any event, plaintiff could not maintain a cause of action for retaliation against the New York Archdiocese defendants under the New York State Human Rights Law. See Executive Law 296 (7). Plaintiff neither alleges that they were his employer (Executive Law 292 [5]), nor alleges that the activity or activities which the New York Archdiocese defendants engaged in are prohibited under New York State's Human Rights Law. See Edwards v Board of Trustees of Colgate Rochester Divinity School/Bexter Hall/Crozer Theol. Seminary, 254 AD2d 709, 710 (4th Dept 1998). Therefore, the first cause of action is dismissed as against the New York Archdiocese defendants.

Third and Fourth Causes of Action

Plaintiff alleges that Cardinal Egan and the New York Archdiocese contacted Archbishop John Myers and the Archdiocese of Newark to get plaintiff fired. Complaint 117. According to plaintiff, "the defendants also engaged in a criminal conspiracy to institute false charges against the plaintiff, and did, in fact, act to further falsify charges in order to harm and dissuade this and other victims of clergy abuse and their supporters." Id. 121.

As discussed above, plaintiff waived his right to assert claims under other theories that requires him to prove the same elements that he would have to prove his CEPA claim. Because the only involvement of the New York Archdiocese defendants arises from the alleged contact between the New York Archdiocese and the Archdiocese of Newark, plaintiff therefore waived his claims for intentional infliction of emotional distress and breach of fiduciary duty as against the New York Archdiocese defendants. Beasley, 377 NJ Super 585.

Even in the absence of waiver, plaintiff fails to state a cause of action against the New York Archdiocese defendants for breach of fiduciary duty. Plaintiff argues that, "As a member of upper management' of the Catholic Church, Edward Cardinal Egan had a fiduciary duty to protect the interests of plaintiff." Aretakis Suppl. Affirm. 29.

Doe v Holy See (State of Vatican City) (17 AD3d 793, 795 [3d Dept 2005]) is instructive.

"Where . . . a parishioner plaintiff seeks to establish the existence of a fiduciary [*15]relationship with an institutional church defendant, the plaintiff may not merely rely on the church's status in general, but must come forward with facts demonstrating that his or her relationship with the institution was somehow unique or distinct from the institution's relationship with other parishioners generally."

Doe v Holy See, 17 AD3d at 795. The complaint alleges that plaintiff is member of the Archdiocese of Newark, not the New York Archdiocese. The complaint does not set forth any allegations regarding a relationship of trust and confidence with the New York Archdiocese defendants. The complaint does not allege that Egan had any direct contact with plaintiff at all. Plaintiff's affidavit discusses the alleged fiduciary relationships with Christian Brothers and the Archdiocese of Newark. Plaintiff's argument that Egan's "upper management" position in the Catholic Church relies upon the Catholic Church's status in general.

Plaintiff's reliance upon Doe v Roman Catholic Diocese of Rochester (51 AD3d 1392 [4th Dept 2008]) is misplaced. There, the Appellate Division, Fourth Department reversed the lower court's dismissal of a breach of fiduciary duty claim against a priest, based on an alleged adulterous relationship between plaintiff and the priest, who was providing plaintiff with marriage counseling. Unlike Doe, plaintiff's relationship, if any, with the New York Archdiocese defendants, is not alleged to be a formal counseling relationship. Moreover, Doe v Roman Catholic Diocese of Rochester was reversed on appeal to the Court of Appeals, which held, "to demonstrate the existence of a fiduciary duty between a cleric and a congregant involved in a formal counseling relationship, a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.'" Doe v Roman Catholic Diocese of Rochester, 12 NY3d 764, 766 (2009). The complaint in Doe v Roman Catholic Diocese of Rochester fell short of that standard. Id.

Therefore, the third and fourth causes of action are dismissed as against these defendants.

Seventh Cause of Action

Turning to the seventh cause of action, the complaint states that this cause of action is against "all of the Defendants, jointly and severally" (Complaint 159), but the complaint is devoid of allegations that anyone from the New York Archdiocese, including Egan, sexually assaulted plaintiff. Therefore, the seventh cause of action is dismissed as against the New York Archdiocese defendants.

Albany Archdiocese Defendants' Motion To Dismiss

The first, third, fourth and seventh causes of action of the complaint are asserted against the Albany Archdiocese defendants.

First Cause of Action

The Albany Archdiocese defendants argue that the first cause of action should be dismissed as against them because they had neither a civil nor canonical relationship or role with plaintiff.

As previously discussed in more detail in the context of the New York Archdiocese defendants' motion to dismiss, the allegations are insufficient to infer that CEPA applies to the Albany Archdiocese defendants, which is not an employer defined under CEPA. Plaintiff does not allege either that the Albany Archdiocese defendants employed him, or that they acted, directly or indirectly, on behalf of the Archdiocese of Newark with its consent. Because plaintiff asserted a claim under CEPA, plaintiff waived all other claims in the first cause of action based a violation of statutory and common law. Therefore, the first cause of action is dismissed as against the Albany [*16]Archdiocese defendants.

Second Cause of Action

The Albany Archdiocese defendants contend that the second cause of action, for intentional infliction of emotional distress, fails to allege the specific conduct of these defendants that was extreme and outrageous.

Although some of the allegations of the second cause of action refer only to "defendants, " paragraph 102 of the complaint alleges that "defendant NEWARK ARCHIODECESE and defendant MYERS are jointly and severally liable to the plaintiff for this cause of action of intentional infliction of emotional distress." Complaint 102. Because this cause of action specifically refers only to these two defendants, and because the complaint is explicit when a cause of action is asserted "all of the Defendants, jointly and severally" (Complaint 159), the Court reads this cause of action as having been asserted only against the Newark Archdiocese and Myers, and not against the Albany Archdiocese defendants.

Third Cause of Action

As to third cause of action, the Albany Archdiocese defendants advocate that it should be dismissed because the complaint does not allege that plaintiff had a contract of employment, that plaintiff should not be allowed to evade the employment at will rule by recasting a cause of action as tortious interference with employment, and that Court does not have subject matter jurisdiction over plaintiff's employment relationship, which they contend is ecclesiastical in nature.

The argument that the Court lacks subject matter jurisdiction over this cause of action is based on a constitutional argument that this cause of action "involve[s] the specter of excessive entanglement with religion" (Albany Archdiocese Defendants' Mem. at 10). The question of whether a lawsuit will result in the court's excessive entanglement with religion is, like the ministerial exception, a complex analysis. It suffices here to say that the cases which the Albany Archdiocese defendants cite do not support their "specter test." To the extent that these defendants are arguing in favor of a ministerial exception to the cause of action of tortious interference, the Court has ruled that the ministerial exception does not raise a question of subject matter jurisdiction.

As discussed previously, plaintiff's employment relationship, even if ecclesiastical, is presumed to be at will, thus requiring, as a general rule, that the allegations of the conduct constituting tortious interference "amount to a crime or an independent tort." Carvel, 3 NY3d at 190. Here, the allegations that the Albany Archdiocese defendants used wrongful means to interfere with plaintiff's at will employment are vague and conclusory. The allegations that defendants engaged in a criminal conspiracy are identical to plaintiff's allegations for RICO liability in the federal court action, which Judge Crotty ruled were legally insufficient for RICO liability. Therefore, the third cause of action is dismissed as against the Albany Archdiocese defendants.

Fourth Cause of Action

The allegations regarding a relationship of trust and confidence with the Albany Archdiocese defendants are vague and conclusory. The complaint does not allege that the Albany Archdiocese plaintiffs had any direct contact with plaintiff at all. Plaintiff's affidavit discusses the alleged fiduciary relationships with Christian Brothers and the Archdiocese of Newark. Therefore, the fourth cause of action is dismissed as against the Albany Archdiocese defendants.

Seventh Cause of Action

The complaint states that the seventh cause of action is against "all of the Defendants, jointly [*17]and severally" (Complaint 159), but the complaint is devoid of allegations that anyone from the Albany Archdiocese, including Myers, sexually assaulted plaintiff. Therefore, the seventh cause of action is dismissed as against the Albany Archdiocese defendants.

Newark Archdiocese Defendants' Motion To Dismiss

The Newark Archdiocese defendants raise lack of personal jurisdiction as a ground for dismissal. Like the other defendants, they argue that the First Amendment prevents the Court from exercising jurisdiction over the first, second, fourth, fifth, and sixth causes of action, in that a determination of these claims could lead to consideration of religious doctrine. The Newark Archdiocese defendants also argue that the causes of action are legally insufficient, or were waived as a result of plaintiff's claim under CEPA.

"[O]nce jurisdiction and service of process are questioned, [plaintiff has] the burden of proving satisfaction of statutory and due process prerequisites." Stewart v Volkswagen of America, Inc., 81 NY2d 203, 207 (1993]. Here, the complaint alleges that the Archdiocese of Newark is doing business in the State of New Jersey. Complaint 4. The complaint is devoid of any allegations to suggest that the Archdiocese of Newark is doing business in New York.

As for whether long-arm jurisdiction may be exercised over the Archdiocese of Newark, the complaint does not allege any acts that specifically occurred in New York. The complaint alleges that, after he was ordained a priest on May 24, 1997, he was assigned to a parish in Bayonne, New Jersey, later transferred to Hackensack, had a position in Newark, New Jersey, and was allegedly forced to live with pedophiles in West Orange, New Jersey. Complaint 50, 51, 60, 63.

Plaintiff's opposition does not address the Newark Archdiocese defendants' arguments as to personal jurisdiction. Moreover, as the Newark Archdiocese defendants indicate, plaintiff did not perfect service of process by filing proof of service. Thus, Court grants their motion to dismiss the complaint as against them for lack of personal jurisdiction. In light of the dismissal of the complaint as against the New Archdiocese defendants for lack of personal jurisdiction, the Court does not address any other arguments in favor of dismissal.

Plaintiff's Cross Motion For Leave To Amend The Complaint

Plaintiff cross-moves to amend the complaint and to have defendants accept plaintiff's August 14, 2007 complaint. Not only does the August 14, 2007 complaint contain many more allegations than the complaint, but the proposed pleading also adds an eighth cause of action for prima facie tort. See Hoatson Aff., Ex A.

Except for Boschetto, all defendants object to plaintiff's cross motion as untimely served.[FN11] As discussed in the background section of this decision, plaintiff's cross motion was originally served on the day before the original return date of several motions to dismiss. However, the untimely service of plaintiff's cross motion is an academic issue because the Court permitted defendants additional time to respond to plaintiff's cross motion.

"Leave to amend a pleading should be freely given as a matter of discretion in the absence of prejudice or surprise, although to conserve judicial resources, examination of the underlying merit [*18]of the proposed amendment is mandated." Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 355 (1st Dept 2005) (internal citations and quotation marks omitted).

The Christian Brothers defendants point out a possible discrepancy between the verification of the complaint and plaintiff's affidavit in support of leave to amend. Plaintiff avers that, "Because of my own family medical emergencies with my father . . . , I was unable to get the eighty four page amended complaint finalized until August 14, 2007." Hoatson Aff. 5. The verification of the proposed complaint purportedly occurred on August 13, 2007, according to the jurat. Hoatson Aff., Ex A. However, this argument does not bear on whether the proposed pleading plainly lacks merit. If the complaint was verified the day before the drafting of the complaint was finished, then the complaint would be treated as an unverified complaint for the purposes of granting leave to amend.

Nothing in the proposed August 14, 2007 complaint cures the legal flaws set forth in the defendants' respective motions to dismiss. The additional allegations do not cure the elements of the causes of action that were found lacking in the complaint, and many of those causes are also time-barred.

As to the proposed cause of action for prima facie tort, the August 14, 2007 complaint does not indicate which allegations are relevant to this proposed cause of action. Because many of the alleged events occurred years ago, a proposed cause of action for prima facie tort, if based on these events, would be time-barred. Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 370 (1st Dept 2007) ("The statute of limitations for prima facie tort is one year"); but see Stacom v Wunsch, 173 AD2d 401 (1st Dept 1991)(applying three year statute of limitations). Plaintiff's testimony before the New York State Senate in Albany was in May 2003 (Complaint 56), more than two and half years before plaintiff commenced the federal action, and more than four years before this action was commenced.

To the extent that plaintiff's prima facie tort claim is based on his alleged retaliatory discharge, plaintiff waived his prima facie tort claim by asserting a cause of action under CEPA. Mehlman v Mobil Oil Corp., 291 NJ Super 98 (App Div 1996), affd 153 NJ 163 (1998).

Finally, a vital element of this proposed cause of action is special damages. See Engel v CBS, 93 NY2d 195, 203 (1999) (dismissal required where there is no pleading of special injury); Broadway & 67th St. Corp. v City of New York, 100 AD2d 478, 486 (1st Dept 1984) (special damages must be "fully and accurately stated with sufficient particularity as to identify and causally relate the actual losses to the allegedly tortious acts. Failure to do so lays the cause of action open to summary dismissal"). Plaintiff has not set forth any special damages with particularity.

CONCLUSION

Accordingly, it is hereby

ORDERED that the motions to dismiss by defendant Laurence Boschetto (Motion Seq. No. 001) and defendants Congregation of Christian Brothers and Fr. John O'Brien (Motion Seq. No. 003) are granted to the extent that the complaint is dismissed as against these defendants, and their motions are otherwise denied; and it is further

ORDERED that the motions to dismiss by defendants New York Archdiocese and Cardinal Egan to dismiss the complaint (Motion Seq. No. 002) and the defendants Roman Catholic Diocese and Bishop Howard J. Hubbard (Motion Seq. No. 004) are granted, and the complaint is dismissed as against these defendants; and it is further [*19]

ORDERED that the motion to dismiss by defendants Archdiocese of Newark and Archbishop John J. Myers (Motion Seq. No. 005) is granted, and the action is dismissed as against these defendants for lack of personal jurisdiction; and it is further

ORDEREDthat plaintiff's cross motion for leave to amend the complaint is denied; and it is further

ORDERED that the Clerk is directed to enter judgment in defendants' favor accordingly,

with costs and disbursements to defendants as taxed by the Clerk of Court.

Dated: October 26, 2009E N T E R

New York, New York

_______________/s/__________________

J.S.C.

Footnotes

Footnote 1:Complaint 31.

Footnote 2: Complaint 35, 42.

Footnote 3: In his opposition papers, plaintiff states that he left Christian Brothers in 1994. Hoatson Aff. 25 (a).

Footnote 4: The complaint also alleges that Boschetto left religious life, but does not state when this occurred. Complaint 28.

Footnote 5: In Rweyemamu, the Second Circuit reasoned that the Constitution requires a ministerial exception to Title VII because, presumptively, the appropriate remedy for the violation is reinstatement. 520 F3d at 205 ("but it would surely be unconstitutional under the First Amendment to order the Catholic Church to reinstate, for example, a priest whose employment the Church had terminated on account of his excommunication based on a violation of core Catholic doctrine").

Moreover, "in an ADEA or Title VII case, a plaintiff may be able to put into question the genuineness of the employer's putative non-discriminatory purpose by arguing that the stated purpose is implausible, absurd or unwise," an inquiry which the Second Circuit recognized "could give rise to constitutional problems where, as in the case at bar, a defendant proffers a religious purpose for a challenged employment action." DeMarco v Holy Cross High School, 4 F3d 166, 171 (2d Cir 1993).

Footnote 6: "The purpose of the statute [CEPA] is to provide protection for workers who may be subjected to retaliatory actions by their employers if they reveal corrupt, illegal, fraudulent, or harmful activity' by their employers. Williams v Pemberton Twp. Public Schools, 323 NJ Super 490, 504 (App Div 1999)(citation omitted). The statute defines "retaliatory action" as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." NJ Stat Ann 34:19-2.

Footnote 7: Congress enacted RFRA in direct response to Smith, which Congress found "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion."42 USC 2000bb (a).

RFRA prohibits "government" from "substantially burdening" a person's exercise of religion even if the burden results from a rule of general applicability, unless the government can demonstrate that the burden "(1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest." 42 USC 2000bb-1.

Footnote 8: The Second Circuit stated that it "will not subject to examination the genuineness of a proffered religious reason for an employment action." Rweyemamu, 520 F3d at 207.

Footnote 9: Compare complaint 121-125, with Costello Affirm., Ex A [federal complaint] 144-148; compare complaint 126-127 with federal complaint 155-156; compare complaint 129-131 with federal complaint 162-166.

Footnote 10:"New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging "injury to property" within the meaning of CPLR 214(4), which has a three-year limitations period. Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies. Moreover, where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)."

IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 (2009)(citations omitted).

Footnote 11: Boschetto's motion to dismiss was originally submitted before the return date of plaintiff's cross motion.

 
 

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