Franco V Roman Catholic Diocese of Las Vegas

By Lee A. Mayersohn
June 23, 2009

It is orderedthat defendant PETEKIEWICZ's motion and PHILIP FRANCO and TARA FRANCO's cross motion are decided as follows:

Defendant PETEKIEWICZ moves to renew and reargue the prior decision of the court only in regards to the court's determination that he had failed properly to file and calendar his previous cross motion to dismiss with the court. Plaintiffs cross-move to reargue the decision of the court dismissing its claims against defendant THE ROMAN CATHOLIC DIOCESE OF LAS VEGAS (hereinafter "DIOCESE OF LAS VEGAS").

While the court reiterates its clerical finding that PETEKIEWICZ had failed to comply with the court's filing and calendaring requirements, it will directly address the merits of PETEKIEWICZ's motion which seeks dismissal based on the affirmative defense of statute of limitations. In this regard, the court relies on the rationale enunciated in its prior decision and further detailed below. Accordingly, all plaintiffs' claims against PETEKIEWICZ are dismissed.

Plaintiffs PHILIP FRANCO and TARA FRANCO's cross motion seeks to renew and reargue the prior decision of this court. Such decision found all plaintiffs' claims to be time-barred. Plaintiffs reargue that equitable estoppel preserves some claims from dismissal and, further, that accrual of some claims occurred [*2]only when FRANCO's repressed emotions were released, making such claims timely.

Once a movant in a motion to dismiss establishes prima facie evidence that an action is time-barred, the burden then shifts to the plaintiff to "aver evidentiary facts that the case falls within an exception to the Statute of Limitations." See Savarese v Shatz, 273 AD2d 219 [App Div 2d Dept 2000]. In consideration of a pre-answer motion for dismissal, all allegations contained in the plaintiff's complaint are given every favorable inference and assumed to be true. See Leon v Martinez, 84 NY2d 83 [Ct Appeals 1994]; Morone v Morone, 50 NY2d 481 [Ct Appeals 1981].

Plaintiffs argue they presented sufficient proof of equitable estoppel to preclude dismissal. Equitable estoppel bars the assertion of the affirmative defense of statute of limitations where a defendant's affirmative wrongdoing produces the long delay between accrual of the cause of action and the institution of the legal proceeding. See General Stencils v Chiappa, 18 NY2d 125 [Ct Appeals 1966]. Such doctrine will apply where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action. See Simcuski v Saeli, 44 NY2d 442 [Ct Appeals 1978]. Further, to assert equitable estoppel, the plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations. See Simcuski v Saeli.

"To rely on this doctrine and defeat those branches of the defendant's motion which were to dismiss the complaint as time-barred, the plaintiffs assumed the burden to adequately plead facts which, if proven, would establish the existence of an equitable estoppel..." See Doe v North Shore University Hosp., 28 AD3d 603 [App Div 2d Dept 2006]; Vighotti v North Shore University Hosp., 24 AD3d 752 [App Div 2d Dept 2005]. Application of equitable estoppel is an "extraordinary remedy..." See East Midtown Plaza Housing Co. v City of New York, 218 AD2d 268 [App Div 2d Dept 1995]. Both the plaintiff's complaint and the affidavits submitted in support of plaintiff's position fail to allege any facts of either the DIOCESE OF LAS VEGAS or PETEKIEWICZ that could be construed as affirmative acts that would warrant the consideration of equitable estoppel. The plaintiffs plead that the DIOCESE OF LAS VEGAS' engaged in "intentional concealment, misrepresentation...and/or reckless failure to prevent or discover defendant PETEKIEWICZ's continuing acts..." but such assertions, without a single supporting allegation in the complaint or affidavits, are insufficient to support a theory of equitable estoppel.

While plaintiff alleges the DIOCESE OF LAS VEGAS was derelict in failing to expose or intervene in such abuse,"[t]he application [*3]of the doctrine of equitable estoppel is triggered by some conduct on the part of the defendant after the initial wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient..." See Zoe G v Frederick F.G., 208 AD2d 675 [App Div 2d Dept 1994]. "Plaintiffs do not allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information. No new separate and subsequent acts of wrongdoing beyond the sexually abusive acts themselves are alleged, and equitable estoppel is therefore inapplicable to these cases." See Zumpano v Quinn, 6 NY3d 666 [Ct Appeals 2006].

Further, such doctrine must also include some allegation of reasonable reliance on the misrepresentation (see Zumpano v Quinn, 6 NY3d 666), an element altogether absent in plaintiffs' complaint. Given all these omissions, even by the permissive standards of a pre-answer motion to dismiss, the contents of plaintiff's complaint and supporting documents cannot sustain the defense of equitable estoppel.

Plaintiffs also argue an alternative theory of equitable estoppel, based on a claimed fiduciary duty. "Where concealment without actual misrepresentation is claimed to have prevented a plaintiff from commencing a timely action, the plaintiff must demonstrate a fiduciary relationship...which gave the defendant an obligation to inform him or her of facts underlying the claim..." See Gleason v Spota, 194 AD2d 764 [App Div 2d Dept 1993]. Whether such a fiduciary duty applies to a congregant and clergy remains a contested issue among the courts; however, in these facts, aside from the "sacred trust" shared between clergy and congregant, PHILIP FRANCO alleges PETEKIEWICZ was intimately involved in his personal finances, investing his finances after graduation from high school as well as paying for school tuition while FRANCO was growing up. However, to sustain a theory of equitable estoppel, such pleading must include some facts that such breach of fiduciary duty prevented commencement of a timely action. This element is unsupported by any allegation in either the complaint or the supporting affidavits of the plaintiff. As the Court of Appeals held in similar facts, "There is also no basis for a claim that any fiduciary duty continued after plaintiffs were adults...Even assuming that a breach of fiduciary duty continued until then, and was sufficient to support a finding of equitable estoppel, plaintiffs were required to proceed with their lawsuit, or at least with an inquiry into the facts, within the statutory limitations period computed from the time the conduct relied on [as a basis [*4]for equitable estoppel] ceases to be operational'..." See Simcuski at Saeli. In these facts, the applicable statute of limitations have long lapsed since the claimed fiduciary duty ceased.

Finally, plaintiffs argue that the date of accrual for the emotional distress claims should be measured from the date when the previously repressed emotions of PHILIP FRANCO were finally released through therapy in June 2008. While acknowledging no delayed discovery rule applies to the other torts claimed by plaintiffs (see Mars v Diocese of Rochester, 6 AD3d 1120 [App Div 2d Dept 2004]; Bassile v Covenant House, 191 AD3d 188 [App Div 1st Dept 1993]), plaintiffs argue that the claims of intentional and negligent infliction of emotional distress did not accrue until the element of damages, in the form of FRANCO's released emotions, occurred in June 2008. "Where damages are an essential element of the tort, the claim is not enforceable until damages are sustained'..." See Dana v Reinhardt, 230 AD2d 204 [App Div 4th Dept], citing Kronos, Inc. v AVX Corp., 81 NY2d 90 [Ct Appeals [Ct Appeals 1993]. Thus, claims of emotional distress do not accrue until the severe emotional distress occurs: when a woman first learns she has been videotaped while undressing (see Dana v Reinhardt,) or when a family first learns a loved one has been improperly buried (see Augeri v Roman Catholic Diocese, 225 AD2d 1105 [App Div 4th Dept 1996]) or when a person first learns she has contracted herpes from earlier contact with another (see Mo v Chan, 17 AD3d 356 [App Div 2d Dept 2005]).

In these facts, again, the contentions of the plaintiff are insufficient to sustain such an argument. The affidavit of plaintiff's treating psychologist acknowledges that the plaintiff "was aware, on an intellectual level, that he had been sexually abused by Father Petekewiecz..." though emotions had been suppressed. Plaintiff's affidavit also details dates and significant events of the alleged abuse over the course of the years, never alleging that he was not intellectually aware, but stating, "In June 2008, through the psychotherapy treatment, the painful emotional aspects of Defendant Petekiewicz's abuse, which I had initially blocked out, started to become unblocked." It is important to distinguish that emotional distress claims accrue upon the emotional impact at the revelation of a disturbing event previously unknown to the plaintiff. In these facts, plaintiff has been aware of such events "at an intellectual level" for a period of time beyond the applicable statute of limitations. An argument that "unblocked" emotions have only recently surfaced — a much different contention than first awareness of a tortious event is insufficient to make these claims otherwise timely. While [*5]plaintiff argues a separation of "intellectual" awareness and emotional impact in assessing accrual of the instant action, the case law regarding emotional distress claims supports no such distinction and uniformly locates accrual upon both awareness and the simultaneous emotional distress resulting thereof.

There is no question that heinous acts in violation of intimate trust are alleged by plaintiff. However, even such acts have been legislated to be time-barred after the lapse of certain periods of time; the court's role in consideration of these motions is to determine whether the lapse of time now bars such claims under the law. Absent amendment or other change by legislative action, the court reiterates its prior holding that all plaintiffs' claims are time-barred.

Accordingly, defendant PETEKEWIECZ's motion is granted to the extent that all plaintiffs' actions asserted against PETEKEWIECZ are dismissed. Further, the prior decision of the court is upheld in its entirety and, thus, plaintiff's cross motion is denied.


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