N.Y. High Court Confronts Implications of Liability for Old Abuse Cases

By John Caher
New York Law Journal, carried in
January 4, 2006

The emotion-laden issue of clergy sexual abuse faced the cold calculation of the law Tuesday when New York's Court of Appeals heard pivotal arguments on whether the statute of limitations should be equitably tolled to give dozens, and perhaps hundreds, of victims their day in court.

Zumpano v. Quinn, 1, and Estate of Boyle v. Smith, 2, could expose Roman Catholic dioceses to liability for acts that occurred decades ago. But the cases could also significantly weaken the statute of limitations in myriad other tort actions if the court were to find that an allegation of coverup, especially when related to harm done to children, automatically triggers the equitable estoppel exception to the time bar.

Both cases involve plaintiffs who claim they were abused by priests as far back as 1960. A key question is whether the dioceses involved, Brooklyn and Syracuse, were complicit in perpetuating the sexual abuse of minors and effectively concealed their complicity from the victims, and whether concealment alone is enough to implicate a rule that says a wrongdoer should not be permitted "to take refuge behind the shield of his own wrong" (see General Stencils v. Chiappa, 18 NY2d 125, 1966).

But the judges Tuesday, while clearly sympathetic to the documented abuses in other clergy cases and to the raw allegations in Zumpano and Boyle, appeared concerned over the Pandora's box they could open by reversing lower trial and appellate courts and permitting the cases to proceed despite the fact that the statute of limitations expired long ago.

"You make a compelling argument on the merits, on the underlying merits," Chief Judge Judith S. Kaye said to the plaintiff's counsel in Boyle, Michael G. Dowd of Manhattan. "What is the rule of law that would emerge should you prevail in this case?"

That theme -- how the court could formulate a principle of law and the ramifications of ruling in favor of the plaintiffs here -- was revisited time and again in an argument the court permitted to go on 15 minutes beyond the generous one hour of oral argument it had granted.

The judges pondered just how they would craft a rule that would give the plaintiffs the remedy they seek, but without eviscerating the statute of limitations. They questioned whether a surgeon who lies about leaving an instrument in a patient forgoes a statute of limitations defense. And they asked about teachers, school bus drivers and others who hold positions of trust, and whether they and their employers should suffer under perpetual exposure to litigation.

Much of the discussion centered on whether subsequent actions, beyond merely keeping mum about known wrongdoing, are required to equitably toll the statute of limitations. Several times judges asked what the respective dioceses in these cases did to prevent the plaintiffs from earlier commencing litigation.

"So much of the argument focuses on the duty of care and the breach of the duty of care," Chief Judge Kaye said to Frank Policelli of Utica, N.Y., the plaintiffs attorney in Zumpano. "Our concern is the statute of limitations. What acts did the defendant commit that prevented your client from bringing suit?"

Policelli responded: "There is an ongoing concealment when the diocese had notice that this boy was suffering from nervous breakdowns and instead of investigating and finding out what was going on they shipped him off [to another school]. I don't see ... where equitable estoppel is limited to separate and subsequent acts."

Mark Shulte of Hancock & Estabrook in Syracuse, counsel for the Syracuse diocese, a defendant in Zumpano, stressed repeatedly that there are no concrete allegations that his client knew of the abuses purportedly perpetrated by one of its priests.

"It is alleged...that the diocese knew or should have known, which I believe is pleading code for, 'We have no idea what the diocese knew,'" Shulte said.

Judge Robert S. Smith offered a hypothetical to the defendants' lawyer in Boyle, Joseph H. Farrell of Conway Farrell Curtin & Kelly in Manhattan, in which diocesan officials aware of clergy abuses plot to conceal the acts at least until the statute of limitations expires. But Farrell, counsel for the Brooklyn diocese, said he could not imagine such a scenario. Dowd said the hypothetical described by Smith mirrors what actually transpired in the Brooklyn cases.

The cases have generated interest among clergy abuse victims and their advocates, and considerable concern by those representing the church, especially since in Zumpano the court initially denied leave and then reconsidered, something that almost never happens.

John Zumpano, who alleges he was abused by a priest in Utica between 1963 and 1970, filed suit in 2003, but the action was dismissed in a decision upheld by the Appellate Division, 4th Department. Shortly after granting leave in Boyle, a case that involves 42 plaintiffs and 13 priests in the Diocese of Brooklyn, the Court of Appeals reconsidered Zumpano and agreed to hear that case as well.

Tuesday, about a dozen activists picketed outside the Court of Appeals prior to the Zumpano/Boyle arguments, attempting to draw attention to the issue in general as well as their allegations against the Diocese of Albany.

"I am hoping that the rest of the country will perk up and say, 'In the great state of New York, the courts are fed up with the way the church has responded,'" said the Reverend Robert Hoatson, a Catholic priest who claims he was abused and then retaliated against for blowing the whistle on his abuser. Hoatson has filed a $5 million action in Manhattan against dioceses in New York, Newark and Albany. He was with the picketers Tuesday, as was the attorney for many of them, John A. Aretakis of Manhattan and the Albany area.

Aretakis shared the court's concern over what a ruling for the plaintiffs might do to the statute of limitations.

"My instinct would be that extending the statute of limitations is primarily a legislative matter," he said. "However, we do greatly appreciate the Court of Appeals taking a second or third look at these cases. Just the fact that we are getting this bite at the apple is seen by me and my clients as a huge, huge victory."

Also appearing Tuesday for the Zumpano plaintiff was Paul DerOhannesian II of Albany.

Tuesday's arguments were presented to a six-judge panel. Judge Susan Phillips Read had badly broken her ankle and was slated for surgery Tuesday, according to court spokesman Gary Spencer.


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