Case of Rabbi Tzvi Flaum
Breach of Confidentiality
Far Rockaway, NY
Congregation Kneseth Israel - New York City, NY
Mashgiach Ruchani and Professor of Judaic Studies , Touro College - NYC, NY
Sterns College
Yeshiva University - Washington Heights, NY
Chairman of the Vaad Harabonim of Far Rockaway and Lawrence, NY
Board of Governors of the Association of Orthodox Jewish
Scientists
November 27, 1998 -- Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger. "No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case".
Flaum and Weinberger were said to have provided written statements to the husband's lawyers that his wife had stopped monthly visits to the mikvah for ritual purification.
Rabbi Tzvi Flaum is a
former professor of Judaic Studies at Stern College, Rabbi Flaum has
smicha from RIETS and an MA in Jewish History from the Bernard Revel
Graduate School. A member of the OU Board of Governors, Rabbi Flaum is
Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member
of the Board of Governors of the Association of Orthodox Jewish
Scientists.
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Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves if the resources meet their own personal needs.
Table of Contents:
1998
- N.Y. woman sues rabbis over confidentiality breach (11/27/1998)
- Ruling on rabbinic confidentiality may have legal fallout - Rabbis in Valley say conversations must stay private (12/11/1998)
- Rare Lawsuits Complain Reputations as Jews Were Damaged (12/19/1998)
1999
- Rabbi Tzvi Flaum of Far Rockaway To Be Honored For Unique Contribution to Jewish Life (02/04/1999)
- Chani Lightman, Plaintiff, v. Tzvi Flaum et al., Defendants. (03/04/1999)
2001
- Chani Lightman Vs. Rabbi Tzvi Flaum and Rabbi David Weinberger
- Chani Lightman, Appellant, v. Tzvi Flaum, &c., et al., Respondents (11/27/2001)
2006
- New Facility And New Leadership For Lander College For Women (02/21/2006)
Also See:
- Case of Rabbi David Weinberger
- Confidentiality and Rabbinic Counseling - An Overview of Halakhic and Legal Issues
- Rabbis, Confidentiality and Other Ethical Issues
- Professional Confidentiality in Jewish Law
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N.Y. woman sues rabbis over confidentiality breach
Jewish Weekly News (Northern California) - Friday November 27, 1998
NEW YORK (JPS) -- Two New York rabbis may have violated clergy-congregant confidentiality, an outraged state court judge announc
At the same time, the judge made a precedent-setting ruling to allow an Orthodox woman to sue the rabbis whom she claims betraye
After she filed for a civil divorce in February 1996 and sought custody of her four children, the rabbis revealed her secrets to her husband's lawyers, according to her lawsuit.
Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.
"No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case," the judge wrote in a ruling released Thursday of last week.
"Moreover, to do so under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous."
Flaum and Weinberger were said to have provided written statements to the husband's lawyers that Chani Lightman had stopped monthly visits to the mikvah for ritual purification.
She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow contends that the rabbis had a religious obligation to share the information with the divorce court, because it dealt with Chani Lightman's ability to raise the children in accordance with Orthodox law and customs.
While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.
Her husband has refused to give her a get, a religious divorce required under Jewish law.
Chani Lightman, a 38-year-old nurse, told the New York Post that she had been betrayed by the rabbis and estranged from the Orthodox community.
"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."
Jewish Weekly News (Northern California) - Friday November 27, 1998
NEW YORK (JPS) -- Two New York rabbis may have violated clergy-congregant confidentiality, an outraged state court judge announc
At the same time, the judge made a precedent-setting ruling to allow an Orthodox woman to sue the rabbis whom she claims betraye
After she filed for a civil divorce in February 1996 and sought custody of her four children, the rabbis revealed her secrets to her husband's lawyers, according to her lawsuit.
Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.
"No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case," the judge wrote in a ruling released Thursday of last week.
"Moreover, to do so under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous."
Flaum and Weinberger were said to have provided written statements to the husband's lawyers that Chani Lightman had stopped monthly visits to the mikvah for ritual purification.
She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow contends that the rabbis had a religious obligation to share the information with the divorce court, because it dealt with Chani Lightman's ability to raise the children in accordance with Orthodox law and customs.
While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.
Her husband has refused to give her a get, a religious divorce required under Jewish law.
Chani Lightman, a 38-year-old nurse, told the New York Post that she had been betrayed by the rabbis and estranged from the Orthodox community.
"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."
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Ruling on rabbinic confidentiality may have legal fallout - Rabbis in Valley say conversations must stay private
DEBRA N. COHEN and MICHELLE ACKERMAN
Jewish Telegraphic Agency - December 11, 1998/ 22 Kislev 5759, Vol. 51, No. 12
Ethically and Jewishly speaking, Valley rabbis say it shouldn't have turned into such a big issue. But other observers say a recent New York court ruling on the question of rabbinic confidentiality could have broad ramifications for the Jewish community - in both legal and congregational settings.
A New York State Supreme Court judge recently ruled that Rabbi David Weinberger was wrong to disclose a congregant's confidences by revealing them to her estranged husband and testifying before the court that oversaw their divorce.
Commenting on the New York case, Rabbi Bonnie Koppell, of Conservative Temple Beth Sholom in Mesa, said she thinks it is good that the court chose to enforce the idea of confidentiality between a rabbi and congregants who disclose personal information.
"Still, it's sad that it would take a law to enforce that (assumed confidentiality)," Koppell said. "I think it's fairly intuitive that if a congregant comes in to talk with me, the assumption is that it is confidential."
"Congregants generally develop a relationship with their rabbi and know when they can trust their rabbi," added Rabbi Maynard Bell of Reform Temple Solel in Paradise Valley.
In general, religious leaders contacted by Jewish News agreed that all conversations with individual congregants are confidential, and that the only domestic matter a rabbi would ever be compelled to report is child abuse - and in that case, in the person's presence.
As Rabbi Mark Bisman of Conservative Har Zion Congregation in Scottsdale pointed out, the Jewish law of lashon hara instructs people that harmful language is to be refrained from. And breach of confidentiality, said Bisman, constitutes harmful language.
"Whenever you deal with people, you need to preserve confidentiality," Bisman asserted. "People doing therapeutic work, whether as a rabbi or counselor, need to understand the sophisticated rules of ethics."
Rabbi David Rebibo of Orthodox Beth Joseph Congregation in Phoenix agreed that there is implied confidentiality. But he said he also believes that "in order for material to fall within the context of confidentiality, the person has to really alert the clergy to this effect."
Several Jewish groups - including Agudath Israel of America and the Orthodox Union - are closely following the case and may file briefs in upcoming rounds of the legal battle. The New York Board of Rabbis said it is considering running a symposium to examine the implications of the case.
In the New York case, Chani Lightman, a 38-year-old Orthodox woman, nurse and mother of four daughters, has been trying to obtain a divorce from her husband since 1995. She says her husband, Hylton Lightman, a prominent pediatrician in the Five Towns region of Long Island, has so far refused to give her a get, the Jewish divorce that only a man can issue according to halachah, or Jewish law. He is said to have filed a get with Rabbi Motti Wolmark of Monsey, N.Y., who said, through his secretary at Yeshiva Shaarey Torah, that he had no comment on the matter.
Chani Lightman has been given no opportunity to accept the get if there is one, said her attorney, Daniel Schwartz, and "if her husband believes that she has been unchaste, he is obligated to give her one forthwith."
The Lightmans are in the middle of civil divorce proceedings as well, and the court has awarded Hylton temporary full custody of their children. Chani Lightman said she went to Weinberger, who was her pulpit rabbi, and another rabbi in the community, Tzvi Flaum, in 1995 to discuss her troubled marriage because she was aware that her husband had also spoken with them.
During her separate meetings with one of the rabbis, she revealed that she had stopped going to the mikveh, the ritual bath into which observant women immerse themselves after menstruating and before resuming sexual relations with their husbands, because she wanted no further intimacy with her husband. She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis submitted affidavits on Hylton Lightman's behalf as part of the divorce proceedings, saying that she was not living as an Orthodox woman should. Chani Lightman took the unusual step of suing the two rabbis because they disclosed private information to her husband and to the court without ever getting her permission to do so.
On Nov. 18, Justice David Goldstein ruled that Weinberger owes Chani Lightman damages for causing her harm. In his decision, Goldstein called Weinberger's disclosures not only "improper" but "outrageous and most offensive."
No date has yet been set for either his ruling on the amount the rabbi owes his former congregant, or for Flaum's hearing. The attorney representing them both, Franklyn Snitow, said that he intends to appeal the ruling in the Weinberger case.
Lightman's cases poses several thorny questions, among them, "How private is the information a congregant shares with his or her rabbi?" and "Does a person run the risk of making public the most intimate details of his or her life when they turn to a rabbi for guidance?" The New York court ruling has also raised questions about how involved civil courts should be in deciding whether a rabbi's judgment is correct.
David Zwiebel, director of government affairs for Agudath Israel of America, a group representing fervently Orthodox interests, said he has received a large number of phone calls from concerned rabbis since the ruling was handed down. It is likely that the Agudah will file a friend-of-the-court brief on behalf of the defendants after they appeal, he said.
"The general rule in secular law and halachah is that things said in confidence must be kept in confidence," Zwiebel said, adding, "There are times, though, when the general rule must be breached."
The rabbis in this case were "concerned over the mental and spiritual well-being of the children. The rabbis are entitled to make these sorts of judgments," Zwiebel said.
"If a civil court is saying that they are not, it comes awfully close to the kind of entanglement that the First Amendment is designed to prevent," he said.
Zwiebel said the decision is already having a chilling effect on the ability of rabbis to counsel their congregants because they fear that if they learn anything they feel compelled to report, they might be sued.
If people declare their intention to physically harm themselves or others, the rabbi is obligated to do whatever it takes to stop them, said several experts.
Snitow, the defendants' attorney, maintains that "there was never any expectation of privacy" when Chani Lightman went to talk to them.
"It was never intended as pastoral counseling or a penitent's confession," he said in an interview with JTA. That, said Lightman's attorney, is simply untrue.
The impact of what the rabbis did, said Chani Lightman, has been "like a nightmare."
"I've lost custody of my children, and I've been obliterated (in the community)," she said.
"Other women should not be bamboozled by the rabbis and turned into a pariah."
DEBRA N. COHEN and MICHELLE ACKERMAN
Jewish Telegraphic Agency - December 11, 1998/ 22 Kislev 5759, Vol. 51, No. 12
Ethically and Jewishly speaking, Valley rabbis say it shouldn't have turned into such a big issue. But other observers say a recent New York court ruling on the question of rabbinic confidentiality could have broad ramifications for the Jewish community - in both legal and congregational settings.
A New York State Supreme Court judge recently ruled that Rabbi David Weinberger was wrong to disclose a congregant's confidences by revealing them to her estranged husband and testifying before the court that oversaw their divorce.
Commenting on the New York case, Rabbi Bonnie Koppell, of Conservative Temple Beth Sholom in Mesa, said she thinks it is good that the court chose to enforce the idea of confidentiality between a rabbi and congregants who disclose personal information.
"Still, it's sad that it would take a law to enforce that (assumed confidentiality)," Koppell said. "I think it's fairly intuitive that if a congregant comes in to talk with me, the assumption is that it is confidential."
"Congregants generally develop a relationship with their rabbi and know when they can trust their rabbi," added Rabbi Maynard Bell of Reform Temple Solel in Paradise Valley.
In general, religious leaders contacted by Jewish News agreed that all conversations with individual congregants are confidential, and that the only domestic matter a rabbi would ever be compelled to report is child abuse - and in that case, in the person's presence.
As Rabbi Mark Bisman of Conservative Har Zion Congregation in Scottsdale pointed out, the Jewish law of lashon hara instructs people that harmful language is to be refrained from. And breach of confidentiality, said Bisman, constitutes harmful language.
"Whenever you deal with people, you need to preserve confidentiality," Bisman asserted. "People doing therapeutic work, whether as a rabbi or counselor, need to understand the sophisticated rules of ethics."
Rabbi David Rebibo of Orthodox Beth Joseph Congregation in Phoenix agreed that there is implied confidentiality. But he said he also believes that "in order for material to fall within the context of confidentiality, the person has to really alert the clergy to this effect."
Several Jewish groups - including Agudath Israel of America and the Orthodox Union - are closely following the case and may file briefs in upcoming rounds of the legal battle. The New York Board of Rabbis said it is considering running a symposium to examine the implications of the case.
In the New York case, Chani Lightman, a 38-year-old Orthodox woman, nurse and mother of four daughters, has been trying to obtain a divorce from her husband since 1995. She says her husband, Hylton Lightman, a prominent pediatrician in the Five Towns region of Long Island, has so far refused to give her a get, the Jewish divorce that only a man can issue according to halachah, or Jewish law. He is said to have filed a get with Rabbi Motti Wolmark of Monsey, N.Y., who said, through his secretary at Yeshiva Shaarey Torah, that he had no comment on the matter.
Chani Lightman has been given no opportunity to accept the get if there is one, said her attorney, Daniel Schwartz, and "if her husband believes that she has been unchaste, he is obligated to give her one forthwith."
The Lightmans are in the middle of civil divorce proceedings as well, and the court has awarded Hylton temporary full custody of their children. Chani Lightman said she went to Weinberger, who was her pulpit rabbi, and another rabbi in the community, Tzvi Flaum, in 1995 to discuss her troubled marriage because she was aware that her husband had also spoken with them.
During her separate meetings with one of the rabbis, she revealed that she had stopped going to the mikveh, the ritual bath into which observant women immerse themselves after menstruating and before resuming sexual relations with their husbands, because she wanted no further intimacy with her husband. She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis submitted affidavits on Hylton Lightman's behalf as part of the divorce proceedings, saying that she was not living as an Orthodox woman should. Chani Lightman took the unusual step of suing the two rabbis because they disclosed private information to her husband and to the court without ever getting her permission to do so.
On Nov. 18, Justice David Goldstein ruled that Weinberger owes Chani Lightman damages for causing her harm. In his decision, Goldstein called Weinberger's disclosures not only "improper" but "outrageous and most offensive."
No date has yet been set for either his ruling on the amount the rabbi owes his former congregant, or for Flaum's hearing. The attorney representing them both, Franklyn Snitow, said that he intends to appeal the ruling in the Weinberger case.
Lightman's cases poses several thorny questions, among them, "How private is the information a congregant shares with his or her rabbi?" and "Does a person run the risk of making public the most intimate details of his or her life when they turn to a rabbi for guidance?" The New York court ruling has also raised questions about how involved civil courts should be in deciding whether a rabbi's judgment is correct.
David Zwiebel, director of government affairs for Agudath Israel of America, a group representing fervently Orthodox interests, said he has received a large number of phone calls from concerned rabbis since the ruling was handed down. It is likely that the Agudah will file a friend-of-the-court brief on behalf of the defendants after they appeal, he said.
"The general rule in secular law and halachah is that things said in confidence must be kept in confidence," Zwiebel said, adding, "There are times, though, when the general rule must be breached."
The rabbis in this case were "concerned over the mental and spiritual well-being of the children. The rabbis are entitled to make these sorts of judgments," Zwiebel said.
"If a civil court is saying that they are not, it comes awfully close to the kind of entanglement that the First Amendment is designed to prevent," he said.
Zwiebel said the decision is already having a chilling effect on the ability of rabbis to counsel their congregants because they fear that if they learn anything they feel compelled to report, they might be sued.
If people declare their intention to physically harm themselves or others, the rabbi is obligated to do whatever it takes to stop them, said several experts.
Snitow, the defendants' attorney, maintains that "there was never any expectation of privacy" when Chani Lightman went to talk to them.
"It was never intended as pastoral counseling or a penitent's confession," he said in an interview with JTA. That, said Lightman's attorney, is simply untrue.
The impact of what the rabbis did, said Chani Lightman, has been "like a nightmare."
"I've lost custody of my children, and I've been obliterated (in the community)," she said.
"Other women should not be bamboozled by the rabbis and turned into a pariah."
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Rabbi Tzvi Flaum of Far Rockaway To Be Honored For Unique Contribution to Jewish Life
Orthodox Union - February 4, 1999
February 4, 1998, New York, NY: Rabbi Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, will be honored at the Orthodox Union's (OU) Rabbinic Centennial Medallion Awards Dinner on Wednesday, February 24, 1998, at the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.
In celebration of its Centennial, the OU will honor Rabbi Flaum as well as six other outstanding rabbis and their congregations who have made unique contributions to Orthodox Jewish life in America. Rabbi Dr. Bernard Lander, President of Touro College, who will also be honored, will be the keynote speaker.
"Rabbi Flaum is an impressive community and spiritual leader whose has made an enormous contribution to Jewish life, " said Mandell I. Ganchrow, M.D., President of the OU.
Serving as the social and religious nerve center of the Far Rockaway community, Congregation Kneseth Israel (the "White Shul") provides outstanding outreach programs for immigrants and the newly observant. A dynamic, vibrant congregation offering special minyanim for recent Russian immigrants, the White Shul is a model of inclusiveness and outreach.
A former professor of Judaic Studies at Stern College, Rabbi Flaum has smicha from RIETS and an MA in Jewish History from the Bernard Revel Graduate School. A member of the OU Board of Governors, Rabbi Flaum is Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member of the Board of Governors of the Association of Orthodox Jewish Scientists.
"As we celebrate our 100th year, we cannot overemphasize the importance of rabbis, synagogues and communal institutions working in tandem to insure a thriving Orthodoxy," said Rabbi Raphael B. Butler, Executive Vice President of the OU. "The Orthodox Union acknowledges the synagogue as the focus of Jewish communal life. Each community is built around a vibrant synagogue led by a dynamic rabbi. It is that leadership that we are proud to honor," continued Rabbi Butler.
The honorees include: Rabbi Dr. Bernard Lander (Touro College); Rabbi Steven Dworken (Congregation Anshe Chesed, NJ); Rabbi Tzvi Flaum (Congregation Kneseth Israel, NY); Rabbi Barry Freundel (Kesher Israel Congregation, Washington, D.C.); Rabbi Steven Pruzansky (Congregation Bnai Yeshurun, NJ); Rabbi Dr. Sol Roth (Fifth Avenue Synagogue, NY); Rabbi Dr. Moshe Tendler (Community Synagogue of Monsey, NY) and Rabbi Dr. Chaim Wakslak (Young Israel of Long Beach, NY).
Orthodox Union - February 4, 1999
February 4, 1998, New York, NY: Rabbi Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, will be honored at the Orthodox Union's (OU) Rabbinic Centennial Medallion Awards Dinner on Wednesday, February 24, 1998, at the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.
In celebration of its Centennial, the OU will honor Rabbi Flaum as well as six other outstanding rabbis and their congregations who have made unique contributions to Orthodox Jewish life in America. Rabbi Dr. Bernard Lander, President of Touro College, who will also be honored, will be the keynote speaker.
"Rabbi Flaum is an impressive community and spiritual leader whose has made an enormous contribution to Jewish life, " said Mandell I. Ganchrow, M.D., President of the OU.
Serving as the social and religious nerve center of the Far Rockaway community, Congregation Kneseth Israel (the "White Shul") provides outstanding outreach programs for immigrants and the newly observant. A dynamic, vibrant congregation offering special minyanim for recent Russian immigrants, the White Shul is a model of inclusiveness and outreach.
A former professor of Judaic Studies at Stern College, Rabbi Flaum has smicha from RIETS and an MA in Jewish History from the Bernard Revel Graduate School. A member of the OU Board of Governors, Rabbi Flaum is Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member of the Board of Governors of the Association of Orthodox Jewish Scientists.
"As we celebrate our 100th year, we cannot overemphasize the importance of rabbis, synagogues and communal institutions working in tandem to insure a thriving Orthodoxy," said Rabbi Raphael B. Butler, Executive Vice President of the OU. "The Orthodox Union acknowledges the synagogue as the focus of Jewish communal life. Each community is built around a vibrant synagogue led by a dynamic rabbi. It is that leadership that we are proud to honor," continued Rabbi Butler.
The honorees include: Rabbi Dr. Bernard Lander (Touro College); Rabbi Steven Dworken (Congregation Anshe Chesed, NJ); Rabbi Tzvi Flaum (Congregation Kneseth Israel, NY); Rabbi Barry Freundel (Kesher Israel Congregation, Washington, D.C.); Rabbi Steven Pruzansky (Congregation Bnai Yeshurun, NJ); Rabbi Dr. Sol Roth (Fifth Avenue Synagogue, NY); Rabbi Dr. Moshe Tendler (Community Synagogue of Monsey, NY) and Rabbi Dr. Chaim Wakslak (Young Israel of Long Beach, NY).
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Rare Lawsuits Complain Reputations as Jews Were Damaged
By Nadine Brozan
New York Times - Dec 14, 1998
For (Name Removed), the sense of powerlessness came when she learned that 100 Orthodox rabbis she had never met had granted her husband of 26 years a Jewish divorce without her knowledge.
For (Name Removed), the sense of shock came when she confided in two rabbis about marital problems and then discovered that they had revealed those secrets to her husband and others in their tight-knit religious community.
Stunned by what they saw as betrayals and seeking to restore reputations they say were virtually destroyed, the two women have taken an unheard-of step: they are suing rabbis in American courts of law, their complaints based on the way they were treated by religious courts.
What makes these cases remarkable is that (NAME REMOVED), 45, from Borough Park, Brooklyn, and (NAME REMOVED), 38, from Cedarhurst, on Long Island, remain devoted to their religion, even as the communities around them openly question their bold and, some say, heretical challenges.
''I am religious and feel very strongly about Judaism,'' (NAME REMOVED) said. ''But I don't feel this is a representation of what Judaism or religion is. This is simply an abuse of power by some men.''
While Orthodox Jews who want a divorce in civil law still have to observe the same procedures as any other Americans, obtaining a Jewish get, or divorce, is necessary to remarry within Orthodoxy.
Women have long complained that Jewish courts, which act like binding arbitration panels, have favored men, particularly on matrimonial issues. In many instances, men have refused to grant their wives a get, leaving the women unable to remarry. Men, conversely, face no such consequences.
But as both Mrs. Sieger and Mrs. Lightman learned, men sometimes obtain a get without their wives' consent or knowledge.
The two women seem unlikely candidates to challenge rabbis in court. Both were born into strictly observant Orthodox families, Mrs. Lightman in the modern Orthodox wing of Jewry, Mrs. Sieger in the Bobover Hasidic sect, where, in many ways, women are subject to the command of men.
Mrs. Lightman, a nurse and the mother of four daughters, won a first-round victory on Nov. 18 when Justice David Goldstein of State Supreme Court in Queens handed down a summary judgment against a Long Island rabbi, David Weinberger of Temple Shaaray Tefila in Lawrence.
Mrs. Lightman had gone to Rabbi Weinberger for marital counseling, and complains in her suit that he violated clerical confidentiality by revealing secrets to her husband, Dr. Hylton Lightman, and his lawyer, information that then showed up in papers filed in a custody dispute.
As a result, she said, unfounded rumors began to circulate, including a rumor that she was failing to live by Jewish law and ''seeing a man in a social situation,'' stories that shook her community. Now, she said, she is largely ostracized there and attributes the loss of temporary custody of her daughters, ages 6 to 12, to the suspicions planted about her.
''I am portrayed as an irreligious woman not eligible to be the custodial parent to my children,'' she said.
Mrs. Lightman would not say how much she was seeking in monetary damages, only that it was ''in the millions.''
Justice Goldstein sharply condemned Rabbi Weinberger's revelations, which included the fact that Mrs. Lightman had stopped going to the mikvah, or ritual purification bath, so that her husband would refrain from having sex with her.
''In my view, this was not only improper, it was outrageous and offensive, especially considering the status and stature of these defendants within the community,'' he wrote in his opinion.
A second rabbi in whom Mrs. Lightman confided, Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, Queens, may face the same claim, depending on the results of a hearing on Jan. 6.
Franklin H. Snitow, the lawyer for Rabbi Weinberger and Rabbi Flaum as well as for Dr. Lightman in the couple's civil divorce case, said he planned to appeal the judgment.
''Rabbi Weinberger was basically providing information to both sides, and there was no expectation of confidentiality.'' Mr. Snitow said. As for government jurisdiction over religious matters, he said: ''The clergy is not licensed by the state, and the law does not deal with their activities within the community; therefore, we believe there is interference with their discharging their religious obligations.''
The Sieger case involves different legal and religious issues.
Mrs. Sieger, who is a nursing home administrator, filed suit last month in Supreme Court in Manhattan against the Union of Orthodox Rabbis of the United States and Canada; the Bet Din Zedek of America, a rabbinical court, and five individual rabbis for libel and slander. She is seeking $13 million in damages.
Her lawsuit revolves around an unusual instrument of Jewish divorce, called a Heter Meah Rabonim, that the defendants got for her husband, Chaim Sieger, on the grounds that she had repeatedly refused to accept a routine get.
But Mrs. Sieger insists she was the one who first requested a divorce. She said she left Mr. Sieger in 1995 when their two children were grown and married with their own families, hoping to quickly dissolve the 26-year marriage. She said that she consented three times to appear before a rabbinical court, but that she was never called and was rebuffed when she inquired about the status of the case.
''I kept responding that I would go and nothing happened,'' she said. ''Then I got a letter from Chaim's attorney, Abe Konstam, stating, 'As you are aware, a rabbinical divorce has already been granted.' ''
Without informing her, the rabbis had used the Heter Meah Rabonim, which was introduced centuries ago to give men whose wives are mentally incapacitated, unconscious or unwilling to accept a get the right to take a second wife. It is not technically a Jewish divorce but is a way of releasing a man in an untenable situation from the bonds of marriage. It requires the signatures of 100 rabbis in three countries attesting to the woman's inability to accept the get.
Nathan Lewin, a Washington lawyer who specializes in Federal litigation on religious liberty issues and who is representing several of the defendants in the Sieger case, maintains that Mrs. Sieger refused to appear before the Bet din.
''The courts have repeatedly refused to get involved in second-guessing rabbinical courts,'' he said. ''If the rabbis follow procedure, you can't say the result is defamation.''
Moreover, he continued, ''There was no obligation to tell her about the Heter.''
Christopher Sullivan, a lawyer with the New York firm of Herrick, Feinstein, who represents Mrs. Sieger, said his client was treated unfairly.
''One hundred rabbis who never met her and knew nothing about her signed a Heter accusing her of two specific crimes under Jewish law,'' he said. ''One is that she failed to go to the mikvah or ritual bath while living with her husband. If she engages in sex while in a state of uncleanliness she places him in a state of mortal sin, and a woman who does that cannot serve or prepare food and is not to be trusted in the raising of children.''
The second crime, he said, was the alleged disregard for the summonses to appear before the Bet din.
''The Heter was really devastating,'' Mrs. Sieger said. ''I am strangled by stigma. The choice was, do I remain branded for the rest of my life or do I try to clear my name?''
Denying that he had ever stood in the way of a divorce, Mr. Sieger said he found the defamation suit to be a profound embarrassment.
''Why didn't she take them to a higher Bet din and let them be sanctioned by their peers?'' he asked. ''Every organization has a policing mechanism.''
But Rabbi Moshe David Tendler, professor of Talmudic law at the Rabbi Isaac Elchanon Theological School, affiliated with Yeshiva University, said: ''There is no such thing as a higher Bet din. In addition, it is virtually impossible to convince one Bet din to sit in judgment of another.''
Whatever the outcome of the suits, the anguish and hostility in both cases are palpable.
Mrs. Lightman says she believes a severe beating she received in her bedroom when she was asleep in September 1997 is somehow connected to the divorce. The Nassau County police say the case is still under active investigation.
She also said her husband had obtained a get without giving it to her or telling her about it.
''I learned about it,'' she said, ''when my sister-in-law called to tell me that her divorced sister was introduced to Hylton as being 'the cream of the crop' as a potential date. I was shocked because I had been asking him for a get for three years and he always refused.''
Dr. Lightman, a pediatrician from South Africa, said he was taken aback by the judge's ruling and described the resulting publicity as ''a total desecration of Jewish Torah values.'' Asked if he had, in fact, obtained a get, he said: ''That is so complex a question that it goes beyond explanation. I cannot answer.''
Despite the sting of rejection they say they feel from friends, neighbors and, in Mrs. Sieger's case, business contacts, neither woman intends to abandon Orthodoxy.
Both were raised in insular communities and both married men they met through matchmakers.
Mrs. Sieger, who grew up and still lives in the Hasidic world of Borough Park, says that in fact, she supports the very mechanisms that have hurt her.
''The provision for the Heter is very important,'' she said. ''I am happy it is in the system, as opposed to other religions that have nothing like it. My only problem is that it was used to abuse me.''
Whether other women will take up the cudgels remains to be seen.
''I don't think this will open the floodgates,'' said Susan Aronoff, co-director of Agunah Inc., which helps women whose husbands refuse to grant them a get and is organizing a fund to help Mrs. Lightman pay her legal expenses. ''But maybe it will make rabbis more careful of their conduct.''[Photograph]
CHANI LIGHTMAN -- She says a rabbi told secrets to her husband and his lawyer after she sought marital counseling. (Angel Franco/The New York Times);
By Nadine Brozan
New York Times - Dec 14, 1998
For (Name Removed), the sense of powerlessness came when she learned that 100 Orthodox rabbis she had never met had granted her husband of 26 years a Jewish divorce without her knowledge.
For (Name Removed), the sense of shock came when she confided in two rabbis about marital problems and then discovered that they had revealed those secrets to her husband and others in their tight-knit religious community.
Stunned by what they saw as betrayals and seeking to restore reputations they say were virtually destroyed, the two women have taken an unheard-of step: they are suing rabbis in American courts of law, their complaints based on the way they were treated by religious courts.
What makes these cases remarkable is that (NAME REMOVED), 45, from Borough Park, Brooklyn, and (NAME REMOVED), 38, from Cedarhurst, on Long Island, remain devoted to their religion, even as the communities around them openly question their bold and, some say, heretical challenges.
''I am religious and feel very strongly about Judaism,'' (NAME REMOVED) said. ''But I don't feel this is a representation of what Judaism or religion is. This is simply an abuse of power by some men.''
While Orthodox Jews who want a divorce in civil law still have to observe the same procedures as any other Americans, obtaining a Jewish get, or divorce, is necessary to remarry within Orthodoxy.
Women have long complained that Jewish courts, which act like binding arbitration panels, have favored men, particularly on matrimonial issues. In many instances, men have refused to grant their wives a get, leaving the women unable to remarry. Men, conversely, face no such consequences.
But as both Mrs. Sieger and Mrs. Lightman learned, men sometimes obtain a get without their wives' consent or knowledge.
The two women seem unlikely candidates to challenge rabbis in court. Both were born into strictly observant Orthodox families, Mrs. Lightman in the modern Orthodox wing of Jewry, Mrs. Sieger in the Bobover Hasidic sect, where, in many ways, women are subject to the command of men.
Mrs. Lightman, a nurse and the mother of four daughters, won a first-round victory on Nov. 18 when Justice David Goldstein of State Supreme Court in Queens handed down a summary judgment against a Long Island rabbi, David Weinberger of Temple Shaaray Tefila in Lawrence.
Mrs. Lightman had gone to Rabbi Weinberger for marital counseling, and complains in her suit that he violated clerical confidentiality by revealing secrets to her husband, Dr. Hylton Lightman, and his lawyer, information that then showed up in papers filed in a custody dispute.
As a result, she said, unfounded rumors began to circulate, including a rumor that she was failing to live by Jewish law and ''seeing a man in a social situation,'' stories that shook her community. Now, she said, she is largely ostracized there and attributes the loss of temporary custody of her daughters, ages 6 to 12, to the suspicions planted about her.
''I am portrayed as an irreligious woman not eligible to be the custodial parent to my children,'' she said.
Mrs. Lightman would not say how much she was seeking in monetary damages, only that it was ''in the millions.''
Justice Goldstein sharply condemned Rabbi Weinberger's revelations, which included the fact that Mrs. Lightman had stopped going to the mikvah, or ritual purification bath, so that her husband would refrain from having sex with her.
''In my view, this was not only improper, it was outrageous and offensive, especially considering the status and stature of these defendants within the community,'' he wrote in his opinion.
A second rabbi in whom Mrs. Lightman confided, Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, Queens, may face the same claim, depending on the results of a hearing on Jan. 6.
Franklin H. Snitow, the lawyer for Rabbi Weinberger and Rabbi Flaum as well as for Dr. Lightman in the couple's civil divorce case, said he planned to appeal the judgment.
''Rabbi Weinberger was basically providing information to both sides, and there was no expectation of confidentiality.'' Mr. Snitow said. As for government jurisdiction over religious matters, he said: ''The clergy is not licensed by the state, and the law does not deal with their activities within the community; therefore, we believe there is interference with their discharging their religious obligations.''
The Sieger case involves different legal and religious issues.
Mrs. Sieger, who is a nursing home administrator, filed suit last month in Supreme Court in Manhattan against the Union of Orthodox Rabbis of the United States and Canada; the Bet Din Zedek of America, a rabbinical court, and five individual rabbis for libel and slander. She is seeking $13 million in damages.
Her lawsuit revolves around an unusual instrument of Jewish divorce, called a Heter Meah Rabonim, that the defendants got for her husband, Chaim Sieger, on the grounds that she had repeatedly refused to accept a routine get.
But Mrs. Sieger insists she was the one who first requested a divorce. She said she left Mr. Sieger in 1995 when their two children were grown and married with their own families, hoping to quickly dissolve the 26-year marriage. She said that she consented three times to appear before a rabbinical court, but that she was never called and was rebuffed when she inquired about the status of the case.
''I kept responding that I would go and nothing happened,'' she said. ''Then I got a letter from Chaim's attorney, Abe Konstam, stating, 'As you are aware, a rabbinical divorce has already been granted.' ''
Without informing her, the rabbis had used the Heter Meah Rabonim, which was introduced centuries ago to give men whose wives are mentally incapacitated, unconscious or unwilling to accept a get the right to take a second wife. It is not technically a Jewish divorce but is a way of releasing a man in an untenable situation from the bonds of marriage. It requires the signatures of 100 rabbis in three countries attesting to the woman's inability to accept the get.
Nathan Lewin, a Washington lawyer who specializes in Federal litigation on religious liberty issues and who is representing several of the defendants in the Sieger case, maintains that Mrs. Sieger refused to appear before the Bet din.
''The courts have repeatedly refused to get involved in second-guessing rabbinical courts,'' he said. ''If the rabbis follow procedure, you can't say the result is defamation.''
Moreover, he continued, ''There was no obligation to tell her about the Heter.''
Christopher Sullivan, a lawyer with the New York firm of Herrick, Feinstein, who represents Mrs. Sieger, said his client was treated unfairly.
''One hundred rabbis who never met her and knew nothing about her signed a Heter accusing her of two specific crimes under Jewish law,'' he said. ''One is that she failed to go to the mikvah or ritual bath while living with her husband. If she engages in sex while in a state of uncleanliness she places him in a state of mortal sin, and a woman who does that cannot serve or prepare food and is not to be trusted in the raising of children.''
The second crime, he said, was the alleged disregard for the summonses to appear before the Bet din.
''The Heter was really devastating,'' Mrs. Sieger said. ''I am strangled by stigma. The choice was, do I remain branded for the rest of my life or do I try to clear my name?''
Denying that he had ever stood in the way of a divorce, Mr. Sieger said he found the defamation suit to be a profound embarrassment.
''Why didn't she take them to a higher Bet din and let them be sanctioned by their peers?'' he asked. ''Every organization has a policing mechanism.''
But Rabbi Moshe David Tendler, professor of Talmudic law at the Rabbi Isaac Elchanon Theological School, affiliated with Yeshiva University, said: ''There is no such thing as a higher Bet din. In addition, it is virtually impossible to convince one Bet din to sit in judgment of another.''
Whatever the outcome of the suits, the anguish and hostility in both cases are palpable.
Mrs. Lightman says she believes a severe beating she received in her bedroom when she was asleep in September 1997 is somehow connected to the divorce. The Nassau County police say the case is still under active investigation.
She also said her husband had obtained a get without giving it to her or telling her about it.
''I learned about it,'' she said, ''when my sister-in-law called to tell me that her divorced sister was introduced to Hylton as being 'the cream of the crop' as a potential date. I was shocked because I had been asking him for a get for three years and he always refused.''
Dr. Lightman, a pediatrician from South Africa, said he was taken aback by the judge's ruling and described the resulting publicity as ''a total desecration of Jewish Torah values.'' Asked if he had, in fact, obtained a get, he said: ''That is so complex a question that it goes beyond explanation. I cannot answer.''
Despite the sting of rejection they say they feel from friends, neighbors and, in Mrs. Sieger's case, business contacts, neither woman intends to abandon Orthodoxy.
Both were raised in insular communities and both married men they met through matchmakers.
Mrs. Sieger, who grew up and still lives in the Hasidic world of Borough Park, says that in fact, she supports the very mechanisms that have hurt her.
''The provision for the Heter is very important,'' she said. ''I am happy it is in the system, as opposed to other religions that have nothing like it. My only problem is that it was used to abuse me.''
Whether other women will take up the cudgels remains to be seen.
''I don't think this will open the floodgates,'' said Susan Aronoff, co-director of Agunah Inc., which helps women whose husbands refuse to grant them a get and is organizing a fund to help Mrs. Lightman pay her legal expenses. ''But maybe it will make rabbis more careful of their conduct.''[Photograph]
CHANI LIGHTMAN -- She says a rabbi told secrets to her husband and his lawyer after she sought marital counseling. (Angel Franco/The New York Times);
CHAYIE SIEGER -- ''The choice was, do I remain branded for the rest of my life or do I try to clear my name?'' (Andrea Mohin/The New York Times)
___________________________________________________________________________________
Rabbi Tzvi Flaum of Far Rockaway To Be Honored For Unique Contribution to Jewish Life
Orthodox Union - February 4, 1999
http://www.ou.org/oupr/1999/rabbis2.htm
February 4, 1998, New York, NY: Rabbi Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, will be honored at the Orthodox Union's (OU) Rabbinic Centennial Medallion Awards Dinner on Wednesday, February 24, 1998, at the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.
In celebration of its Centennial, the OU will honor Rabbi Flaum as well as six other outstanding rabbis and their congregations who have made unique contributions to Orthodox Jewish life in America. Rabbi Dr. Bernard Lander, President of Touro College, who will also be honored, will be the keynote speaker.
"Rabbi Flaum is an impressive community and spiritual leader whose has made an enormous contribution to Jewish life, " said Mandell I. Ganchrow, M.D., President of the OU.
Serving as the social and religious nerve center of the Far Rockaway community, Congregation Kneseth Israel (the "White Shul") provides outstanding outreach programs for immigrants and the newly observant. A dynamic, vibrant congregation offering special minyanim for recent Russian immigrants, the White Shul is a model of inclusiveness and outreach.
A former professor of Judaic Studies at Stern College, Rabbi Flaum has smicha from RIETS and an MA in Jewish History from the Bernard Revel Graduate School. A member of the OU Board of Governors, Rabbi Flaum is Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member of the Board of Governors of the Association of Orthodox Jewish Scientists.
"As we celebrate our 100th year, we cannot overemphasize the importance of rabbis, synagogues and communal institutions working in tandem to insure a thriving Orthodoxy," said Rabbi Raphael B. Butler, Executive Vice President of the OU. "The Orthodox Union acknowledges the synagogue as the focus of Jewish communal life. Each community is built around a vibrant synagogue led by a dynamic rabbi. It is that leadership that we are proud to honor," continued Rabbi Butler.
The honorees include: Rabbi Dr. Bernard Lander (Touro College); Rabbi Steven Dworken (Congregation Anshe Chesed, NJ); Rabbi Tzvi Flaum (Congregation Kneseth Israel, NY); Rabbi Barry Freundel (Kesher Israel Congregation, Washington, D.C.); Rabbi Steven Pruzansky (Congregation Bnai Yeshurun, NJ); Rabbi Dr. Sol Roth (Fifth Avenue Synagogue, NY); Rabbi Dr. Moshe Tendler (Community Synagogue of Monsey, NY) and Rabbi Dr. Chaim Wakslak (Young Israel of Long Beach, NY).
Orthodox Union - February 4, 1999
http://www.ou.org/oupr/1999/rabbis2.htm
February 4, 1998, New York, NY: Rabbi Tzvi Flaum of Congregation Kneseth Israel in Far Rockaway, will be honored at the Orthodox Union's (OU) Rabbinic Centennial Medallion Awards Dinner on Wednesday, February 24, 1998, at the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.
In celebration of its Centennial, the OU will honor Rabbi Flaum as well as six other outstanding rabbis and their congregations who have made unique contributions to Orthodox Jewish life in America. Rabbi Dr. Bernard Lander, President of Touro College, who will also be honored, will be the keynote speaker.
"Rabbi Flaum is an impressive community and spiritual leader whose has made an enormous contribution to Jewish life, " said Mandell I. Ganchrow, M.D., President of the OU.
Serving as the social and religious nerve center of the Far Rockaway community, Congregation Kneseth Israel (the "White Shul") provides outstanding outreach programs for immigrants and the newly observant. A dynamic, vibrant congregation offering special minyanim for recent Russian immigrants, the White Shul is a model of inclusiveness and outreach.
A former professor of Judaic Studies at Stern College, Rabbi Flaum has smicha from RIETS and an MA in Jewish History from the Bernard Revel Graduate School. A member of the OU Board of Governors, Rabbi Flaum is Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member of the Board of Governors of the Association of Orthodox Jewish Scientists.
"As we celebrate our 100th year, we cannot overemphasize the importance of rabbis, synagogues and communal institutions working in tandem to insure a thriving Orthodoxy," said Rabbi Raphael B. Butler, Executive Vice President of the OU. "The Orthodox Union acknowledges the synagogue as the focus of Jewish communal life. Each community is built around a vibrant synagogue led by a dynamic rabbi. It is that leadership that we are proud to honor," continued Rabbi Butler.
The honorees include: Rabbi Dr. Bernard Lander (Touro College); Rabbi Steven Dworken (Congregation Anshe Chesed, NJ); Rabbi Tzvi Flaum (Congregation Kneseth Israel, NY); Rabbi Barry Freundel (Kesher Israel Congregation, Washington, D.C.); Rabbi Steven Pruzansky (Congregation Bnai Yeshurun, NJ); Rabbi Dr. Sol Roth (Fifth Avenue Synagogue, NY); Rabbi Dr. Moshe Tendler (Community Synagogue of Monsey, NY) and Rabbi Dr. Chaim Wakslak (Young Israel of Long Beach, NY).
___________________________________________________________________________________
Case Name: Lightman v. Flaum
Chani Lightman, Plaintiff, v. Tzvi Flaum et al., Defendants.
179 Misc. 2d 1007 *
687 N.Y.S.2d 562 **
1999 N.Y. Misc. LEXIS 85 ***
INDEX NO. 2169/97
SUPREME COURT OF NEW YORK, QUEENS COUNTY
March 4, 1999, Decided
Judges: DAVID GOLDSTEIN, J.S.C.
Opinion by: DAVID GOLDSTEIN
Opinion: [*1008] [**565] David Goldstein, J.
ISSUE
This case presents an issue of first impression in this State, namely, whether the unauthorized disclosure of confidential communications, in violation of the clergy-penitent privilege provided by CPLR 4505, is actionable. The court concludes, as a matter of law, that breach of the fiduciary duty of confidentiality does state a cognizable claim for relief.
Defendants, Rabbi Tzvi Flaum and Rabbi David Weinberger, have moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action. In accordance with CPLR 3211 (c), this court notified the parties of its election to convert the motion to one for summary judgment and [*1009] all parties were [***2] afforded an opportunity to and did make additional submissions.
FACTS
Plaintiff alleges that, in 1995, she sought religious counseling from each of the defendants, during which she revealed certain matters of an extremely personal and confidential nature. Rabbi Flaum is employed as Rabbi of Congregation Kneseth Israel, 728 Empire Avenue, Far Rockaway, New York. He is also Chairman of the Vaad Harabonim, the Rabbinical Council of Far Rockaway and Lawrence and Co-Chairman of the Vaad Harabonim of Queens. Rabbi Weinberger is employed as Rabbi of Temple Shaaray Tefila, 25 Central Avenue, Lawrence, New York. He was formerly Assistant Rabbi of Congregation Kneseth Israel and teaches at the Prospect Park High School and Seminary for Girls. Both plaintiff and her husband were members of Kneseth Israel and had also participated in services at Temple of Shaaray Tefila. According to plaintiff, she met with each Rabbi for advice and spiritual guidance and, in confidence, disclosed matters of a personal and intimate nature.
Subsequently, in February 1996, Mrs. Lightman commenced an action for divorce and moved for pendente lite relief, including temporary custody of the four children. [***3] In response, defendants submitted affirmations in support of the husband's position as to custody, which set forth the confidential matters that plaintiff had previously communicated and imparted to them. Specifically, the affirmation of Rabbi Flaum contained the following:
"2. Mrs. Lightman admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision.
"3. Mrs. Lightman admitted to me that she was seeing a man in a social setting and admitted, 'I am doing the wrong things.' I spoke to her and counseled her against this in December, 1995."
The affirmation of Rabbi Weinberger set forth the following:
"2. Mrs. Lightman admitted to me that she freely stopped her religious bathing so that ... she did not have to engage in any sexual relations with Dr. Lightman.
"3. She told me she was not getting fulfillment when I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by Dr. Lightman.
[*1010]
"4. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is [***4] an Orthodox Jew and her children are being raised Orthodox as well. She has engaged in bizarre behavior.
"5. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observation[s] from a religious point of view. "
Based upon the foregoing allegations, plaintiff commenced this action for violation of the clergy-penitent privilege and for intentional infliction of emotional distress. In addition, the complaint asserts a cause of action against Rabbi Weinberger for defamation.
Upon a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is required to construe the complaint liberally, accepting all of the facts alleged as true and affording plaintiff the benefit of any possible inference. [**566] ( See, Leon v Martinez, 84 NY2d 83.) "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one". ( Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Foley v D'Agostino, 21 AD2d 60, 65.) Upon a motion for summary judgment, it is incumbent upon the court to draw all reasonable inferences in favor of [***5] the nonmoving party and it may not pass upon issues of credibility. (See, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; 175 Check Cashing Corp. v Chubb Pac. Indem. Group, 95 AD2d 701.)
Upon the conversion of this motion to one for summary judgment, the parties submitted further affirmations. Essentially, plaintiff has reiterated the claims made in the complaint, alleging that it was both improper and actionable for defendants to divulge privileged and sensitive communications which they had received from her.
In opposition, defendants contend that they were compelled by Jewish law to reveal the confidences to plaintiff's husband, his attorney and the court for the protection of both the husband and the children. Additionally, they argue that plaintiff was not seeking spiritual counseling or advice in what Rabbi Flaum describes as their "encounter" and both claim that a third person was present at the time: as to Flaum, plaintiff's mother and, as to Weinberger, plaintiff's friend, Yael Hirsh. According to Rabbi Weinberger, plaintiff described "the most intimate details of her marriage" in the presence of her friend, which surprised him. [***6] According to Rabbi Flaum, Dr. Lightman advised him that he and his wife were having marital problems--that she was deviating from Orthodox tradition [*1011] and, he believed, was in "adulterous relationships". Weeks later, plaintiff and her mother appeared at his office and berated him for speaking to Dr. Lightman. In the course of the heated exchange, plaintiff admitted "she had stopped engaging in religious purification laws" and was "seeing men in social settings even though she was still married to Dr. Lightman." Both defendants admit notifying the husband and claim that, in doing so, they were acting in accordance with their obligation as Rabbi and spiritual advisor and, further, that this was to protect the four "innocent" children of the marriage.
Defendants argue that the causes of action for violation of the clergy- penitent privilege must be dismissed since no private cause of action exists. They claim that breach of the privilege is merely a violation of an evidentiary rule, and that the sole remedy is the exclusion of the communication from evidence.
DISCUSSION
(a) Fiduciary Duty of Confidentiality--Clergy-Penitent Privilege
While it is true that a cause [***7] of action does not automatically exist for breach of an evidentiary rule, our courts have repeatedly recognized that violation of certain privileges does give rise to a common-law cause of action for breach of the fiduciary duty of confidentiality. (See, Oringer v Rotkin, 162 AD2d 113; cf., Madden v Creative Servs., 84 NY2d 738, 744.) Thus, a cause of action has been recognized for violation of the physician-patient privilege (see, Doe v Roe, 190 AD2d 463; Tighe v Ginsberg, 146 AD2d 268; see also, Anker v Brodnitz, 98 Misc 2d 148, 152-153, affd 73 AD2d 589, lv dismissed 51 NY2d 703); the psychologist-patient privilege ( Oringer v Rotkin, supra); the psychiatrist-patient privilege ( MacDonald v Clinger, 84 AD2d 482); the social worker-client privilege ( Harley v Druzba, 169 AD2d 1001; [as to scope of privilege in terms of confidentiality, generally, see also, People v Tissois, 72 NY2d 75; Community Serv. Socy. v Welfare Inspector Gen., 91 Misc 2d 383, affd 65 AD2d 734]); [***8] and the attorney-client privilege ( Krouner v Koplovitz, 175 AD2d 531). Cognizable claims have [**567] been premised upon the breach of a fiduciary or contractual relationship.
Plaintiff acknowledges that an action for violation of the clergy-penitent privilege has not as yet been upheld and that the issue is one of first impression in this State and, as far as appears, in this country. However, by way of analogy to the [*1012] foregoing privileges, she argues that the clergy has a similar fiduciary duty vis--vis the penitent and should be held to the same stringent standard of care as has been imposed upon other professionals, namely, to hold such disclosures sacred and not to reveal confidential communications.
Plaintiff points to the care and diligence by most responsible members of the clergy in safeguarding confidences, as the reason the issue in this case has never arisen. In fact, this court is aware of only one reported decision which squarely addressed the issue. In Snyder v Evangelical Orthodox Church (216 Cal App 3d 297, 264 Cal Rptr 640) plaintiffs had confessed their adulterous relationship to certain members of the clergy. [***9] Although made in confidence, the confession was disclosed to others, including the assembled congregation, the Church Board of Elders and a gathering of priests, ministers, pastors and guests. Plaintiffs asserted claims, inter alia, for breach of fiduciary duty and infliction of emotional distress. In moving to dismiss, defendants argued that the court lacked jurisdiction over conduct which was "ecclesiastical in nature".
The California Court of Appeal for the Sixth District held that, under certain circumstances, tort liability could be imposed upon a member of the clergy for revealing confidences. In doing so, it recognized that whether to allow such a claim involved substantial constitutional considerations relating to the First Amendment to the United States Constitution, and held that various factors needed to be taken into account, including whether the acts complained of were taken pursuant to church doctrine and whether the State interest outweighed any concomitant burden on religion.
In Snyder (supra), a four-pronged balancing standard was set forth to determine whether there is a justifiable burden on expression of religious belief in relation [***10] to the effect upon significant societal interests. To do so, the government must be in furtherance of some compelling State interest; the burden on expression must be essential to further this interest; the type and level of the burden must be the minimum necessary to achieve the State interest; and the burden must apply to everyone, not merely to those who have a religious belief. In reversing the dismissal for lack of subject matter jurisdiction, the California appellate court remanded the matter for further proceedings, including a determination whether there actually was a religious purpose for the disclosure and, if it was concluded that the conduct qualified as religious expression, "the trial court must balance the importance to the state of the [*1013] interest invaded against the burden which would result from imposing tort liability for such a claim." ( Snyder v Evangelical Orthodox Church, supra, 216 Cal App 3d, at 310, 264 Cal Rptr, at 647.)
Previously, in Wollersheim v Church of Scientology (212 Cal App 3d 872, 66 Cal Rptr 2d 1) the California Court of Appeal for the Second District applied the same balancing standard to uphold [***11] an action for intentional infliction of emotional distress, concluding in that case that there was a compelling State interest which far outweighed the values to be served by the alleged religious expression. In doing so, however, it observed that "not every religious expression is worthy of constitutional protection." (Supra, 212 Cal App 3d, at 888, 66 Cal Rptr 2d, at 10.)
In Alexander v Culp (124 Ohio App 3d 13, 705 NE2d 378) plaintiff had met with defendant minister for marital counseling, whereupon he disclosed in confidence that he had several affairs during his marriage and was currently having an affair. Thereafter, Culp disclosed these confessions to plaintiff's wife and, after opining that plaintiff was a liar and not to be trusted, suggested that the wife obtain a restraining order, change the locks on the doors and retain counsel to secure a divorce. Since plaintiff also stated he intended to take the children to another State, the minister suggested that she keep them away from their [**568] father. The Ohio appellate court found the factual allegations sufficient to state a viable claim for common-law negligence, observing: "Public [***12] policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential ... Whether a particular case interferes with First Amendment freedoms can be determined on a case-by-case basis." (Supra, 124 Ohio App 3d, at 19, 705 NE2d, at 382.) Although Ohio had a statute which prohibited the clergy from testifying as to confidences communicated during religious counseling, the provision had no application to any disclosure outside any legal proceeding. In holding that the facts set forth a cognizable claim for ordinary negligence, not malpractice, the Ohio court observed: "Although the duty not to disclose arose from the clergy/parishioner relationship, the breach of the duty to preserve appellant's confidences neither involved nor compromised any religious tenets." (Supra, 124 Ohio App 3d, at 19, 705 NE2d, at 382.)
In our case, defendants claim that to sustain a cause of actionwould impinge upon the free exercise of their religious [*1014] rights, preserved by the First Amendment. Generally, [***13] cases have held that the imposition of liability in tort or otherwise, for conduct or activities of a religious society or its members, infurtherance of religious beliefs, is barred where the imposition of liability would result in the abridgement of the free exercise of religion, in violation of the First Amendment. (See, Wisconsin v Yoder, 406 US 205; see also, Serbian Orthodox Diocese v Milivojevich, 426 US 696; Paul v Watchtower Bible & Tract Socy., 819 F2d 875; Kenneth R. v Roman Catholic Diocese, 229 AD2d 159; Madsen v Erwin, 395 Mass 715, 481 NE2d 1160.) The same hold true where the court would be required to become excessively entangled with religious doctrine and its standards. (See, Schmidt v Bishop, 779 F Supp 321; see also, Langford v Roman Catholic Diocese, 177 Misc 2d 897.) In such instances, it has been recognized that a court must refrain from determining ecclesiastical questions. (See, Presbyterian Church v Hull Church, 393 US 440.)
However, it is also well recognized that disputes involving religious entities may be adjudicated [***14] if this may be done by applying "neutral principles of law" and without resolving or impinging upon underlying controversies over religious doctrine. ( Presbyterian Church v Hull Church, supra; Park Slope Jewish Ctr. v Congregation B'Nai Jacob, 90 NY2d 517; First Presbyt. Church v United Presbyt. Church, 62 NY2d 110, 119-120; see also, Jones v Wolf, 443 US 595.) These and other cases hold that civil disputes involving religious institutions or persons may be addressed without offending constitutional restrictions, as long as neutral laws of general applicability are employed in the resolution or adjudication.
At the outset, it must be stressed that, while the First Amendment does prohibit the intrusion upon the exercise of religious beliefs, the conduct of a religious entity remains subject to regulation for the protection of society. (See, Employment Div., Ore. Dept. of Human Resources v Smith, 494 US 872; see also, Cantwell v Connecticut, 310 US 296, 304; Kenneth R. v Roman Catholic Diocese, supra.) This is especially so where the imposition of liability or sanctions [***15] for the conduct complained of is secular in nature, namely, where liability is imposed equally, for religious institutions and parties, as well as for others, and where the basis for such liability may be determined without examination into religious law or policies. (See, Employment Div., Ore. Dept. of Human Resources v Smith, supra; Jones v Trane, 153 Misc 2d 822; Moses v Diocese of Colorado, 863 P2d 310 [Colo].) Thus, the free exercise clause is not [*1015] an absolute [**569] defense where, as here, liability for tortious conduct is sought to be imposed upon members of the clergy. It may only serve as a defense where the alleged tortious conduct was undertaken pursuant to religious principles or doctrine. (See, Kenneth R. v Roman Catholic Diocese, supra; Meroni v Holy Spirit Assn. for Unification of World Christianity, 119 AD2d 200; Jones v Trane, supra; Snyder v Evangelical Orthodox Church, supra; Madsen v Irwin, supra.)
Even where the conduct is predicated upon religious beliefs, it may nevertheless form the basis for liability where significant societal [***16] interests are involved. (See, Cantwell v Connecticut, supra; Meroni v Holy Spirit Assn. for Unification of World Christianity, supra.) Thus, it has been held that the intentional torts of the clergy may be actionable, notwithstanding the allegation that they are incidents of religious beliefs. (See, Meroni v Holy Spirit Assn. for Unification of World Christianity, supra; Hester v Barnett, 723 SW2d 544 [Mo]; Bear v Reformed Mennonite Church, 462 Pa 330, 341 A2d 105.) Other courts have sustained causes of action against religious organizations for negligent supervision and retention, upon the ground that a liability determination would not require examination of any religious doctrine, nor would it inhibit any religious practice. ( See, Kenneth R. v Roman Catholic Diocese, supra; Jones v Trane, supra.) In such instances, the First Amendment will not serve as a defense because it is not implicated.
Based upon the foregoing legal principles, in determining whether the First Amendment is a viable defense, the threshold inquiry must be whether the complained of conduct is actually [***17] motivated by or involves religious practices or beliefs. (See, Wisconsin v Yoder, supra.) If it is not, liability may be imposed without raising any constitutional inhibition or restriction. In such case, plainly, there is no entanglement with religion.
Under the circumstances of this case, it is concluded that a valid cause of action does exist under CPLR 4505, for breach of the fiduciary duty of confidentiality, which arises from the violation of the clergy-penitent privilege. Absent any religious or First Amendment implication, there is no compelling reason here to shield these Rabbis from liability in tort for revealing such sensitive, personal communications, when other similarly situated professionals are subject to potential liability under statutory provisions analogous in scope and purpose to that at issue here.
It is beyond peradventure that, when one seeks the solace and spiritual advice and guidance of a member of the clergy, [*1016] whether it be a priest, rabbi or minister, on such sensitive, personal matters as those involved in our case, this is not done as a prelude to an announcement from the pulpit. On this record, [***18] it is equally clear that these protectors of the faith, under the guise of religious necessity, the protection of the children and the sanctity of the marital institution, have taken upon themselves the disclosure to others of what, from its very nature and subject, was imparted in confidence, unless the privilege was waived by the presence of some third party or, from the nature of the meeting, the disclosure and communication was not made to the Rabbis in their spiritual capacity. (See, People v Drelich, 123 AD2d 441, 443.) And, not only were disclosures made to Dr. Lightman, both defendants readily acceded to his request that they be repeated to counsel and to the court in the matrimonial action, so as to influence the issue of temporary custody and/or visitation.
In my view, this was not only improper, it was outrageous and most offensive, especially considering the stature of these defendants within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of apparent first impression--no member of the clergy, with the possible exception of Reverend Culp in Ohio ( Alexander v Culp, 124 Ohio App 3d 13, 705 NE2d 378, [***19] supra), would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case. And, while both profess that religious law "compelled" disclosure, to the contrary, both were bound [**570] by civil law, which mandated strict confidentiality. After all, the privilege belongs to the penitent, not the clergy, and must be honored.
Moreover, to violate such basic rights under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous. Under the factual scenario admitted by these defendants, disclosure was not required to prevent Dr. Lightman from violating Jewish law or tradition. Both defendants knew that the couple was experiencing marital difficulties when they were told that plaintiff was no longer going to the Mikvah, the ritual bathing to purify the woman during her menstrual period. Clearly, this is a peculiarly sensitive matter, not readily discussed with others, nor in open, public exchanges. Notwithstanding that future marital relations would cause Dr. Lightman to violate Jewish law, neither defendant had a "religious obligation as a Rabbi" to make [***20] public what had been imparted to them. In lieu of such, all that [*1017] they had to do was ask the husband whether, notwithstanding their marital difficulties, the parties were still having normal relations. If so or, in the alternative, without such an inquiry, defendants could have emphasized to the husband the importance of ensuring that his wife was still going to the Mikvah. This, however, was not done. Moreover, as is apparent from Rabbi Flaum's affirmation of December 22, 1997, the disclosure was palpably unrelated to any religious doctrine, since what had been told to defendant was that "plaintiff admitted that she had stopped engaging in religious purification laws (which resulted in the cessation of all sexual activity with her husband)" (emphasis added). Thus, since he had been told there was no sexual relationship, there was no need for disclosure, especially under the pretext of preventing any violation of religious doctrine, unless this was to serve some other male, Orthodox, but equally irrelevant role.
Notwithstanding the foregoing, disclosure in this case hardly equates with the overwhelming public and societal interest in preserving the sanctity of [***21] such confidential communications. Plainly, there is no justification, religious or otherwise, for disclosing that plaintiff had been seeing men outside the marriage. The alleged negative impact upon the four children, in terms of "their level of religious observance as well as their general well being" (affirmation, Rabbi Flaum, dated Dec. 22, 1997), is so general that, in terms of importance, it cannot possibly measure against the overriding State and public interest in preserving confidentiality. The same holds true with respect to the alleged "religious obligation" to prevent the husband from having relations with a woman "who admittedly socialized with other men" or, in terms of the children, "to shield them from their mother's improper conduct. " To acknowledge such would improperly and unwisely create a standard for these defendants, as Orthodox Rabbis, different from that followed by the rest of society.
Thus, it is readily apparent here that the disclosure, under the circumstances of this case, is actionable and would entitle plaintiff to prevail on liability, unless the privilege had been waived by the presence of a third person, or the nature of the meeting was such that [***22] the communication was not made to the Rabbis in their spiritual capacity or to obtain spiritual guidance. ( People v Drelich, 123 AD2d 441, supra; see also, People v Carmona, 82 NY2d 603.) Plainly, these are factual issues, which must await the trier of the facts and are inappropriate for final resolution upon motion for summary judgment. As [*1018] noted, inasmuch as neither defendant has identified any justifiable religious obligation or basis for revealing these communications, as a matter of law, the First Amendment is not a defense.
Equally without merit is the contention that, since the communications were revealed in the context of a judicial proceeding, they are entitled to protection. No authority or legal basis is offered to accord any degree of immunity for breach of fiduciary duty simply because it occurred in a judicial proceeding. While there is a valid basis for not permitting defamation claims to proceed and for immunity to be accorded defamatory statements made in the context of a judicial [**571] proceeding, those reasons are inapplicable here. If the privilege applies, plaintiff is entitled to confidentiality, whether [***23] it be in a sealed matrimonial proceeding or in a public or private forum. The privilege belongs to and may only be waived by her.
Accordingly, upon the foregoing, the motion to dismiss or for summary judgment as to the first and second causes of action for breach of the fiduciary duty of confidentiality is granted in terms of liability only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the Rabbis in their spiritual capacity or to obtain spiritual guidance, and is otherwise denied.
(b) Intentional Infliction of Emotional Distress
The third and fourth causes of action sound in intentional infliction of emotional distress, and are alleged against both Flaum and Weinberger, respectively. To state a cause of action for intentional infliction of emotional distress, the conduct complained of must be " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [***24] community' ". ( Fischer v Maloney, 43 NY2d 553, 557, quoting Restatement [Second] of Torts ß 46 [1], comment d; see also, Freihofer v Hearst Corp., 65 NY2d 135, 143.) The conduct must be of such a nature that it "so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society". ( Freihofer v Hearst Corp., supra, at 143; see also, Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Fischer v Maloney, supra, at 557.) More must be involved than hurt feelings; mere insults, indignities, [*1019] threats or annoyances are insufficient. (See, Owen v Leventritt, 174 AD2d 471, lv denied 79 NY2d 751; Lincoln First Bank v Barstro & Assocs. Contr., 49 AD2d 1025.) Intent or recklessness is an essential element of the cause of action.
In our case, plaintiff contends that the disclosure of privileged communications made to a Rabbi by a penitent, done with malicious intent, meets this stringent standard. This court agrees. Bearing in mind the sanctity to be accorded such communications between clergy and [***25] penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious, within the standard expressed in Freihofer v Hearst Corp. (supra).
Thus, the motion to dismiss the third and fourth causes of action for infliction of emotional distress is denied. Although cognizable claims are stated, factual issues do preclude summary resolution, including, inter alia, intent or recklessness, a critical element of the cause of action and one which cannot be resolved on this record. Moreover, although the cause of action is one governed by a one-year Statute of Limitations (CPLR 215 [3]; Gallagher v Directors Guild, 144 AD2d 261, lv denied 73 NY2d 708; Goldner v Sullivan, Gough, Skipworth, Summers & Smith, 105 AD2d 1149, 1151), the limitations [***26] issue has not been raised or addressed on this record.
(c) Defamation
The fifth cause of action against defendant Weinberger for defamation must be dismissed. The alleged defamatory statements were set forth in the affirmation of defendant, which was submitted in the context of the marital proceeding to determine temporary child custody. " A written statement ... in the course of a judicial proceeding is absolutely privileged if, by any [**572] view or under any circumstances, it may be considered pertinent to the litigation". ( Joseph v Larry Dorman, P. C., 177 AD2d 618; see also, Martirano v Frost, 25 NY2d 505.) Clearly, the statements were pertinent to the litigation in that they were intended to reflect upon plaintiff's fitness to be a good mother. Plaintiff claims that the statements fall without the scope of the privilege, since they must have been discussed and, therefore, published to her husband and/or his attorney [*1020] prior to their having been reduced to writing for submission on the motion. She contends that this publication is not subject to any privilege.
However, it is patently clear from the complaint that [***27] the statements, whenever published, were made "in connection with the above action for divorce. " (Complaint P 66.) The absolute privilege is not limited to statements made or documents used in open court. (See, Klein v McGauley, 29 AD2d 418.) Thus, the statements are absolutely privileged since made for the purpose of litigation and may not be the subject of a claim for defamation. Accordingly, the fifth cause of action for defamation as against defendant Weinberger is dismissed.
CONCLUSION
Accordingly, upon the foregoing the motion to dismiss and for summary judgment is granted (1) as to the first and second causes of action, in terms of liability, only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the Rabbis in their spiritual capacity or to obtain spiritual guidance, and (2) dismissing the fifth cause of action for defamation as against defendant Weinberger, and is otherwise denied.
[Portions of opinion omitted for purposes of publication.] [***28]
Chani Lightman, Plaintiff, v. Tzvi Flaum et al., Defendants.
179 Misc. 2d 1007 *
687 N.Y.S.2d 562 **
1999 N.Y. Misc. LEXIS 85 ***
INDEX NO. 2169/97
SUPREME COURT OF NEW YORK, QUEENS COUNTY
March 4, 1999, Decided
Judges: DAVID GOLDSTEIN, J.S.C.
Opinion by: DAVID GOLDSTEIN
Opinion: [*1008] [**565] David Goldstein, J.
ISSUE
This case presents an issue of first impression in this State, namely, whether the unauthorized disclosure of confidential communications, in violation of the clergy-penitent privilege provided by CPLR 4505, is actionable. The court concludes, as a matter of law, that breach of the fiduciary duty of confidentiality does state a cognizable claim for relief.
Defendants, Rabbi Tzvi Flaum and Rabbi David Weinberger, have moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action. In accordance with CPLR 3211 (c), this court notified the parties of its election to convert the motion to one for summary judgment and [*1009] all parties were [***2] afforded an opportunity to and did make additional submissions.
FACTS
Plaintiff alleges that, in 1995, she sought religious counseling from each of the defendants, during which she revealed certain matters of an extremely personal and confidential nature. Rabbi Flaum is employed as Rabbi of Congregation Kneseth Israel, 728 Empire Avenue, Far Rockaway, New York. He is also Chairman of the Vaad Harabonim, the Rabbinical Council of Far Rockaway and Lawrence and Co-Chairman of the Vaad Harabonim of Queens. Rabbi Weinberger is employed as Rabbi of Temple Shaaray Tefila, 25 Central Avenue, Lawrence, New York. He was formerly Assistant Rabbi of Congregation Kneseth Israel and teaches at the Prospect Park High School and Seminary for Girls. Both plaintiff and her husband were members of Kneseth Israel and had also participated in services at Temple of Shaaray Tefila. According to plaintiff, she met with each Rabbi for advice and spiritual guidance and, in confidence, disclosed matters of a personal and intimate nature.
Subsequently, in February 1996, Mrs. Lightman commenced an action for divorce and moved for pendente lite relief, including temporary custody of the four children. [***3] In response, defendants submitted affirmations in support of the husband's position as to custody, which set forth the confidential matters that plaintiff had previously communicated and imparted to them. Specifically, the affirmation of Rabbi Flaum contained the following:
"2. Mrs. Lightman admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision.
"3. Mrs. Lightman admitted to me that she was seeing a man in a social setting and admitted, 'I am doing the wrong things.' I spoke to her and counseled her against this in December, 1995."
The affirmation of Rabbi Weinberger set forth the following:
"2. Mrs. Lightman admitted to me that she freely stopped her religious bathing so that ... she did not have to engage in any sexual relations with Dr. Lightman.
"3. She told me she was not getting fulfillment when I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by Dr. Lightman.
[*1010]
"4. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is [***4] an Orthodox Jew and her children are being raised Orthodox as well. She has engaged in bizarre behavior.
"5. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observation[s] from a religious point of view. "
Based upon the foregoing allegations, plaintiff commenced this action for violation of the clergy-penitent privilege and for intentional infliction of emotional distress. In addition, the complaint asserts a cause of action against Rabbi Weinberger for defamation.
Upon a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is required to construe the complaint liberally, accepting all of the facts alleged as true and affording plaintiff the benefit of any possible inference. [**566] ( See, Leon v Martinez, 84 NY2d 83.) "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one". ( Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Foley v D'Agostino, 21 AD2d 60, 65.) Upon a motion for summary judgment, it is incumbent upon the court to draw all reasonable inferences in favor of [***5] the nonmoving party and it may not pass upon issues of credibility. (See, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; 175 Check Cashing Corp. v Chubb Pac. Indem. Group, 95 AD2d 701.)
Upon the conversion of this motion to one for summary judgment, the parties submitted further affirmations. Essentially, plaintiff has reiterated the claims made in the complaint, alleging that it was both improper and actionable for defendants to divulge privileged and sensitive communications which they had received from her.
In opposition, defendants contend that they were compelled by Jewish law to reveal the confidences to plaintiff's husband, his attorney and the court for the protection of both the husband and the children. Additionally, they argue that plaintiff was not seeking spiritual counseling or advice in what Rabbi Flaum describes as their "encounter" and both claim that a third person was present at the time: as to Flaum, plaintiff's mother and, as to Weinberger, plaintiff's friend, Yael Hirsh. According to Rabbi Weinberger, plaintiff described "the most intimate details of her marriage" in the presence of her friend, which surprised him. [***6] According to Rabbi Flaum, Dr. Lightman advised him that he and his wife were having marital problems--that she was deviating from Orthodox tradition [*1011] and, he believed, was in "adulterous relationships". Weeks later, plaintiff and her mother appeared at his office and berated him for speaking to Dr. Lightman. In the course of the heated exchange, plaintiff admitted "she had stopped engaging in religious purification laws" and was "seeing men in social settings even though she was still married to Dr. Lightman." Both defendants admit notifying the husband and claim that, in doing so, they were acting in accordance with their obligation as Rabbi and spiritual advisor and, further, that this was to protect the four "innocent" children of the marriage.
Defendants argue that the causes of action for violation of the clergy- penitent privilege must be dismissed since no private cause of action exists. They claim that breach of the privilege is merely a violation of an evidentiary rule, and that the sole remedy is the exclusion of the communication from evidence.
DISCUSSION
(a) Fiduciary Duty of Confidentiality--Clergy-Penitent Privilege
While it is true that a cause [***7] of action does not automatically exist for breach of an evidentiary rule, our courts have repeatedly recognized that violation of certain privileges does give rise to a common-law cause of action for breach of the fiduciary duty of confidentiality. (See, Oringer v Rotkin, 162 AD2d 113; cf., Madden v Creative Servs., 84 NY2d 738, 744.) Thus, a cause of action has been recognized for violation of the physician-patient privilege (see, Doe v Roe, 190 AD2d 463; Tighe v Ginsberg, 146 AD2d 268; see also, Anker v Brodnitz, 98 Misc 2d 148, 152-153, affd 73 AD2d 589, lv dismissed 51 NY2d 703); the psychologist-patient privilege ( Oringer v Rotkin, supra); the psychiatrist-patient privilege ( MacDonald v Clinger, 84 AD2d 482); the social worker-client privilege ( Harley v Druzba, 169 AD2d 1001; [as to scope of privilege in terms of confidentiality, generally, see also, People v Tissois, 72 NY2d 75; Community Serv. Socy. v Welfare Inspector Gen., 91 Misc 2d 383, affd 65 AD2d 734]); [***8] and the attorney-client privilege ( Krouner v Koplovitz, 175 AD2d 531). Cognizable claims have [**567] been premised upon the breach of a fiduciary or contractual relationship.
Plaintiff acknowledges that an action for violation of the clergy-penitent privilege has not as yet been upheld and that the issue is one of first impression in this State and, as far as appears, in this country. However, by way of analogy to the [*1012] foregoing privileges, she argues that the clergy has a similar fiduciary duty vis--vis the penitent and should be held to the same stringent standard of care as has been imposed upon other professionals, namely, to hold such disclosures sacred and not to reveal confidential communications.
Plaintiff points to the care and diligence by most responsible members of the clergy in safeguarding confidences, as the reason the issue in this case has never arisen. In fact, this court is aware of only one reported decision which squarely addressed the issue. In Snyder v Evangelical Orthodox Church (216 Cal App 3d 297, 264 Cal Rptr 640) plaintiffs had confessed their adulterous relationship to certain members of the clergy. [***9] Although made in confidence, the confession was disclosed to others, including the assembled congregation, the Church Board of Elders and a gathering of priests, ministers, pastors and guests. Plaintiffs asserted claims, inter alia, for breach of fiduciary duty and infliction of emotional distress. In moving to dismiss, defendants argued that the court lacked jurisdiction over conduct which was "ecclesiastical in nature".
The California Court of Appeal for the Sixth District held that, under certain circumstances, tort liability could be imposed upon a member of the clergy for revealing confidences. In doing so, it recognized that whether to allow such a claim involved substantial constitutional considerations relating to the First Amendment to the United States Constitution, and held that various factors needed to be taken into account, including whether the acts complained of were taken pursuant to church doctrine and whether the State interest outweighed any concomitant burden on religion.
In Snyder (supra), a four-pronged balancing standard was set forth to determine whether there is a justifiable burden on expression of religious belief in relation [***10] to the effect upon significant societal interests. To do so, the government must be in furtherance of some compelling State interest; the burden on expression must be essential to further this interest; the type and level of the burden must be the minimum necessary to achieve the State interest; and the burden must apply to everyone, not merely to those who have a religious belief. In reversing the dismissal for lack of subject matter jurisdiction, the California appellate court remanded the matter for further proceedings, including a determination whether there actually was a religious purpose for the disclosure and, if it was concluded that the conduct qualified as religious expression, "the trial court must balance the importance to the state of the [*1013] interest invaded against the burden which would result from imposing tort liability for such a claim." ( Snyder v Evangelical Orthodox Church, supra, 216 Cal App 3d, at 310, 264 Cal Rptr, at 647.)
Previously, in Wollersheim v Church of Scientology (212 Cal App 3d 872, 66 Cal Rptr 2d 1) the California Court of Appeal for the Second District applied the same balancing standard to uphold [***11] an action for intentional infliction of emotional distress, concluding in that case that there was a compelling State interest which far outweighed the values to be served by the alleged religious expression. In doing so, however, it observed that "not every religious expression is worthy of constitutional protection." (Supra, 212 Cal App 3d, at 888, 66 Cal Rptr 2d, at 10.)
In Alexander v Culp (124 Ohio App 3d 13, 705 NE2d 378) plaintiff had met with defendant minister for marital counseling, whereupon he disclosed in confidence that he had several affairs during his marriage and was currently having an affair. Thereafter, Culp disclosed these confessions to plaintiff's wife and, after opining that plaintiff was a liar and not to be trusted, suggested that the wife obtain a restraining order, change the locks on the doors and retain counsel to secure a divorce. Since plaintiff also stated he intended to take the children to another State, the minister suggested that she keep them away from their [**568] father. The Ohio appellate court found the factual allegations sufficient to state a viable claim for common-law negligence, observing: "Public [***12] policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential ... Whether a particular case interferes with First Amendment freedoms can be determined on a case-by-case basis." (Supra, 124 Ohio App 3d, at 19, 705 NE2d, at 382.) Although Ohio had a statute which prohibited the clergy from testifying as to confidences communicated during religious counseling, the provision had no application to any disclosure outside any legal proceeding. In holding that the facts set forth a cognizable claim for ordinary negligence, not malpractice, the Ohio court observed: "Although the duty not to disclose arose from the clergy/parishioner relationship, the breach of the duty to preserve appellant's confidences neither involved nor compromised any religious tenets." (Supra, 124 Ohio App 3d, at 19, 705 NE2d, at 382.)
In our case, defendants claim that to sustain a cause of actionwould impinge upon the free exercise of their religious [*1014] rights, preserved by the First Amendment. Generally, [***13] cases have held that the imposition of liability in tort or otherwise, for conduct or activities of a religious society or its members, infurtherance of religious beliefs, is barred where the imposition of liability would result in the abridgement of the free exercise of religion, in violation of the First Amendment. (See, Wisconsin v Yoder, 406 US 205; see also, Serbian Orthodox Diocese v Milivojevich, 426 US 696; Paul v Watchtower Bible & Tract Socy., 819 F2d 875; Kenneth R. v Roman Catholic Diocese, 229 AD2d 159; Madsen v Erwin, 395 Mass 715, 481 NE2d 1160.) The same hold true where the court would be required to become excessively entangled with religious doctrine and its standards. (See, Schmidt v Bishop, 779 F Supp 321; see also, Langford v Roman Catholic Diocese, 177 Misc 2d 897.) In such instances, it has been recognized that a court must refrain from determining ecclesiastical questions. (See, Presbyterian Church v Hull Church, 393 US 440.)
However, it is also well recognized that disputes involving religious entities may be adjudicated [***14] if this may be done by applying "neutral principles of law" and without resolving or impinging upon underlying controversies over religious doctrine. ( Presbyterian Church v Hull Church, supra; Park Slope Jewish Ctr. v Congregation B'Nai Jacob, 90 NY2d 517; First Presbyt. Church v United Presbyt. Church, 62 NY2d 110, 119-120; see also, Jones v Wolf, 443 US 595.) These and other cases hold that civil disputes involving religious institutions or persons may be addressed without offending constitutional restrictions, as long as neutral laws of general applicability are employed in the resolution or adjudication.
At the outset, it must be stressed that, while the First Amendment does prohibit the intrusion upon the exercise of religious beliefs, the conduct of a religious entity remains subject to regulation for the protection of society. (See, Employment Div., Ore. Dept. of Human Resources v Smith, 494 US 872; see also, Cantwell v Connecticut, 310 US 296, 304; Kenneth R. v Roman Catholic Diocese, supra.) This is especially so where the imposition of liability or sanctions [***15] for the conduct complained of is secular in nature, namely, where liability is imposed equally, for religious institutions and parties, as well as for others, and where the basis for such liability may be determined without examination into religious law or policies. (See, Employment Div., Ore. Dept. of Human Resources v Smith, supra; Jones v Trane, 153 Misc 2d 822; Moses v Diocese of Colorado, 863 P2d 310 [Colo].) Thus, the free exercise clause is not [*1015] an absolute [**569] defense where, as here, liability for tortious conduct is sought to be imposed upon members of the clergy. It may only serve as a defense where the alleged tortious conduct was undertaken pursuant to religious principles or doctrine. (See, Kenneth R. v Roman Catholic Diocese, supra; Meroni v Holy Spirit Assn. for Unification of World Christianity, 119 AD2d 200; Jones v Trane, supra; Snyder v Evangelical Orthodox Church, supra; Madsen v Irwin, supra.)
Even where the conduct is predicated upon religious beliefs, it may nevertheless form the basis for liability where significant societal [***16] interests are involved. (See, Cantwell v Connecticut, supra; Meroni v Holy Spirit Assn. for Unification of World Christianity, supra.) Thus, it has been held that the intentional torts of the clergy may be actionable, notwithstanding the allegation that they are incidents of religious beliefs. (See, Meroni v Holy Spirit Assn. for Unification of World Christianity, supra; Hester v Barnett, 723 SW2d 544 [Mo]; Bear v Reformed Mennonite Church, 462 Pa 330, 341 A2d 105.) Other courts have sustained causes of action against religious organizations for negligent supervision and retention, upon the ground that a liability determination would not require examination of any religious doctrine, nor would it inhibit any religious practice. ( See, Kenneth R. v Roman Catholic Diocese, supra; Jones v Trane, supra.) In such instances, the First Amendment will not serve as a defense because it is not implicated.
Based upon the foregoing legal principles, in determining whether the First Amendment is a viable defense, the threshold inquiry must be whether the complained of conduct is actually [***17] motivated by or involves religious practices or beliefs. (See, Wisconsin v Yoder, supra.) If it is not, liability may be imposed without raising any constitutional inhibition or restriction. In such case, plainly, there is no entanglement with religion.
Under the circumstances of this case, it is concluded that a valid cause of action does exist under CPLR 4505, for breach of the fiduciary duty of confidentiality, which arises from the violation of the clergy-penitent privilege. Absent any religious or First Amendment implication, there is no compelling reason here to shield these Rabbis from liability in tort for revealing such sensitive, personal communications, when other similarly situated professionals are subject to potential liability under statutory provisions analogous in scope and purpose to that at issue here.
It is beyond peradventure that, when one seeks the solace and spiritual advice and guidance of a member of the clergy, [*1016] whether it be a priest, rabbi or minister, on such sensitive, personal matters as those involved in our case, this is not done as a prelude to an announcement from the pulpit. On this record, [***18] it is equally clear that these protectors of the faith, under the guise of religious necessity, the protection of the children and the sanctity of the marital institution, have taken upon themselves the disclosure to others of what, from its very nature and subject, was imparted in confidence, unless the privilege was waived by the presence of some third party or, from the nature of the meeting, the disclosure and communication was not made to the Rabbis in their spiritual capacity. (See, People v Drelich, 123 AD2d 441, 443.) And, not only were disclosures made to Dr. Lightman, both defendants readily acceded to his request that they be repeated to counsel and to the court in the matrimonial action, so as to influence the issue of temporary custody and/or visitation.
In my view, this was not only improper, it was outrageous and most offensive, especially considering the stature of these defendants within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of apparent first impression--no member of the clergy, with the possible exception of Reverend Culp in Ohio ( Alexander v Culp, 124 Ohio App 3d 13, 705 NE2d 378, [***19] supra), would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case. And, while both profess that religious law "compelled" disclosure, to the contrary, both were bound [**570] by civil law, which mandated strict confidentiality. After all, the privilege belongs to the penitent, not the clergy, and must be honored.
Moreover, to violate such basic rights under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous. Under the factual scenario admitted by these defendants, disclosure was not required to prevent Dr. Lightman from violating Jewish law or tradition. Both defendants knew that the couple was experiencing marital difficulties when they were told that plaintiff was no longer going to the Mikvah, the ritual bathing to purify the woman during her menstrual period. Clearly, this is a peculiarly sensitive matter, not readily discussed with others, nor in open, public exchanges. Notwithstanding that future marital relations would cause Dr. Lightman to violate Jewish law, neither defendant had a "religious obligation as a Rabbi" to make [***20] public what had been imparted to them. In lieu of such, all that [*1017] they had to do was ask the husband whether, notwithstanding their marital difficulties, the parties were still having normal relations. If so or, in the alternative, without such an inquiry, defendants could have emphasized to the husband the importance of ensuring that his wife was still going to the Mikvah. This, however, was not done. Moreover, as is apparent from Rabbi Flaum's affirmation of December 22, 1997, the disclosure was palpably unrelated to any religious doctrine, since what had been told to defendant was that "plaintiff admitted that she had stopped engaging in religious purification laws (which resulted in the cessation of all sexual activity with her husband)" (emphasis added). Thus, since he had been told there was no sexual relationship, there was no need for disclosure, especially under the pretext of preventing any violation of religious doctrine, unless this was to serve some other male, Orthodox, but equally irrelevant role.
Notwithstanding the foregoing, disclosure in this case hardly equates with the overwhelming public and societal interest in preserving the sanctity of [***21] such confidential communications. Plainly, there is no justification, religious or otherwise, for disclosing that plaintiff had been seeing men outside the marriage. The alleged negative impact upon the four children, in terms of "their level of religious observance as well as their general well being" (affirmation, Rabbi Flaum, dated Dec. 22, 1997), is so general that, in terms of importance, it cannot possibly measure against the overriding State and public interest in preserving confidentiality. The same holds true with respect to the alleged "religious obligation" to prevent the husband from having relations with a woman "who admittedly socialized with other men" or, in terms of the children, "to shield them from their mother's improper conduct. " To acknowledge such would improperly and unwisely create a standard for these defendants, as Orthodox Rabbis, different from that followed by the rest of society.
Thus, it is readily apparent here that the disclosure, under the circumstances of this case, is actionable and would entitle plaintiff to prevail on liability, unless the privilege had been waived by the presence of a third person, or the nature of the meeting was such that [***22] the communication was not made to the Rabbis in their spiritual capacity or to obtain spiritual guidance. ( People v Drelich, 123 AD2d 441, supra; see also, People v Carmona, 82 NY2d 603.) Plainly, these are factual issues, which must await the trier of the facts and are inappropriate for final resolution upon motion for summary judgment. As [*1018] noted, inasmuch as neither defendant has identified any justifiable religious obligation or basis for revealing these communications, as a matter of law, the First Amendment is not a defense.
Equally without merit is the contention that, since the communications were revealed in the context of a judicial proceeding, they are entitled to protection. No authority or legal basis is offered to accord any degree of immunity for breach of fiduciary duty simply because it occurred in a judicial proceeding. While there is a valid basis for not permitting defamation claims to proceed and for immunity to be accorded defamatory statements made in the context of a judicial [**571] proceeding, those reasons are inapplicable here. If the privilege applies, plaintiff is entitled to confidentiality, whether [***23] it be in a sealed matrimonial proceeding or in a public or private forum. The privilege belongs to and may only be waived by her.
Accordingly, upon the foregoing, the motion to dismiss or for summary judgment as to the first and second causes of action for breach of the fiduciary duty of confidentiality is granted in terms of liability only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the Rabbis in their spiritual capacity or to obtain spiritual guidance, and is otherwise denied.
(b) Intentional Infliction of Emotional Distress
The third and fourth causes of action sound in intentional infliction of emotional distress, and are alleged against both Flaum and Weinberger, respectively. To state a cause of action for intentional infliction of emotional distress, the conduct complained of must be " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [***24] community' ". ( Fischer v Maloney, 43 NY2d 553, 557, quoting Restatement [Second] of Torts ß 46 [1], comment d; see also, Freihofer v Hearst Corp., 65 NY2d 135, 143.) The conduct must be of such a nature that it "so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society". ( Freihofer v Hearst Corp., supra, at 143; see also, Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Fischer v Maloney, supra, at 557.) More must be involved than hurt feelings; mere insults, indignities, [*1019] threats or annoyances are insufficient. (See, Owen v Leventritt, 174 AD2d 471, lv denied 79 NY2d 751; Lincoln First Bank v Barstro & Assocs. Contr., 49 AD2d 1025.) Intent or recklessness is an essential element of the cause of action.
In our case, plaintiff contends that the disclosure of privileged communications made to a Rabbi by a penitent, done with malicious intent, meets this stringent standard. This court agrees. Bearing in mind the sanctity to be accorded such communications between clergy and [***25] penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious, within the standard expressed in Freihofer v Hearst Corp. (supra).
Thus, the motion to dismiss the third and fourth causes of action for infliction of emotional distress is denied. Although cognizable claims are stated, factual issues do preclude summary resolution, including, inter alia, intent or recklessness, a critical element of the cause of action and one which cannot be resolved on this record. Moreover, although the cause of action is one governed by a one-year Statute of Limitations (CPLR 215 [3]; Gallagher v Directors Guild, 144 AD2d 261, lv denied 73 NY2d 708; Goldner v Sullivan, Gough, Skipworth, Summers & Smith, 105 AD2d 1149, 1151), the limitations [***26] issue has not been raised or addressed on this record.
(c) Defamation
The fifth cause of action against defendant Weinberger for defamation must be dismissed. The alleged defamatory statements were set forth in the affirmation of defendant, which was submitted in the context of the marital proceeding to determine temporary child custody. " A written statement ... in the course of a judicial proceeding is absolutely privileged if, by any [**572] view or under any circumstances, it may be considered pertinent to the litigation". ( Joseph v Larry Dorman, P. C., 177 AD2d 618; see also, Martirano v Frost, 25 NY2d 505.) Clearly, the statements were pertinent to the litigation in that they were intended to reflect upon plaintiff's fitness to be a good mother. Plaintiff claims that the statements fall without the scope of the privilege, since they must have been discussed and, therefore, published to her husband and/or his attorney [*1020] prior to their having been reduced to writing for submission on the motion. She contends that this publication is not subject to any privilege.
However, it is patently clear from the complaint that [***27] the statements, whenever published, were made "in connection with the above action for divorce. " (Complaint P 66.) The absolute privilege is not limited to statements made or documents used in open court. (See, Klein v McGauley, 29 AD2d 418.) Thus, the statements are absolutely privileged since made for the purpose of litigation and may not be the subject of a claim for defamation. Accordingly, the fifth cause of action for defamation as against defendant Weinberger is dismissed.
CONCLUSION
Accordingly, upon the foregoing the motion to dismiss and for summary judgment is granted (1) as to the first and second causes of action, in terms of liability, only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the Rabbis in their spiritual capacity or to obtain spiritual guidance, and (2) dismissing the fifth cause of action for defamation as against defendant Weinberger, and is otherwise denied.
[Portions of opinion omitted for purposes of publication.] [***28]
___________________________________________________________________________________
Case Name: Lightman v. Flaum
Chani Lightman, Respondent, v. Tzvi Flaum et al., Appellants.
278 A.D.2d 373 *717 N.Y.S.2d 617 **
2000 N.Y. App. Div. LEXIS 13283 ***
1999-06048
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 22, 2000, Argued
December 18, 2000, Decided
Judges:Santucci, J. P., Florio, and McGinity, JJ., concur.
Keywords:
affirmation, rabbis, confidence, causes of action, religious, summary judgment, waived, rabbi, clergy-penitent, disclosure, clergy, third person, confidentiality, fiduciary, breach of fiduciary duty, motion to dismiss, matter of law, First Amendment, intentional infliction of emotional distress, spiritual, marital, free exercise, third parties, accompanied, entitled to summary judgment, purification, actionable, cognizable, matrimonial action, confidential
Opinion:
[*373] [**617] Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion [***2] which were for summary judgment dismissing the first, second, third, and fourth causes of action are granted, and the complaint is dismissed.
The plaintiff, an Orthodox Jewish woman, was experiencing marital difficulties and turned to the defendant rabbis. During her talks with the defendants, she disclosed certain private information to them. However, either the plaintiff's [**618] mother or a friend were present during those conversations. The plaintiff subsequently commenced a divorce action against her husband. In opposition to the plaintiff's motion for pendente lite relief, her husband submitted affirmations by the defendants which contained some of the material she had disclosed to them. As a result of the disclosure, the plaintiff commenced this action against the defendants, asserting causes of action for, inter alia, breach of the fiduciary duty of confidentiality and the intentional infliction of emotional distress. Upon converting the defendants' motion to dismiss pursuant to CPLR 3211 (a) (7) to one for summary judgment, the Supreme Court, in effect, denied the defendants summary judgment on the causes of action [*374] for [***3] breach of fiduciary duty, subject to a determination, inter alia, of whether the plaintiff's privilege had been waived by the presence of a third person. The Supreme Court also found that the defendants were not entitled to summary judgment on the third and fourth causes of action for intentional infliction of emotional distress. We reverse.
After the defendants made a prima facie showing that they were entitled to summary judgment as a matter of law, the plaintiff failed to demonstrate the existence of a triable issue of fact. Specifically, the plaintiff failed to show that the clergy-penitent privilege was not waived by the presence of a third person during her conversations with each of the defendants (see, Zuckerman v City of New York, 49 NY2d 557, 562). In view of this determination, we do not determine whether the plaintiff stated a cognizable claim for breach of fiduciary duty.
Likewise, the defendants are entitled to summary judgment dismissing the third and fourth causes of action alleging intentional infliction of emotional distress. The facts alleged [***4] regarding the defendants' conduct did not rise to a level which would satisfy the "extreme and outrageous conduct" element of such a cause of action and, therefore, summary judgment was warranted (Freihofer v Hearst Corp., 65 NY2d 135).
Santucci, J. P., Florio, and McGinity, JJ., concur.
Concur by: S. MILLER (In Part)
Concur:
S. Miller, J., Concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof denying that branch of the defendants' motion which was, in effect, for summary judgment dismissing the third and fourth causes of action to recover damages for the intentional infliction of emotional distress and substituting therefor a provision granting that branch of the motion, and otherwise affirming the order, with the following memorandum, in which Friedmann, J., concurs: I agree with my colleagues in the majority that the Supreme Court erred insofar as it failed to dismiss the plaintiff's causes of action to recover damages for intentional infliction of emotional distress. However, I most strenuously disagree [***5] insofar as my colleagues have determined, as a matter of law, that the plaintiff waived her right to seek redress for the defendants' obvious and intentional violations of their legal duty not to disclose confidences she imparted to them while seeking religious counseling. Insofar as pertinent to this appeal, CPLR 4505 provides a secular command that "thou shalt not tell." The defendants twice violated that command. Furthermore, as the Supreme Court found, the plaintiff has a private right of action for the fiduciary breach flowing from this statutory violation. Finally, the defendants have not [*375] demonstrated to my satisfaction that the First Amendment precludes the imposition of liability where, as here, they engaged in intentional acts in clear violation of a valid and neutral enactment that was not intended to regulate religious conduct and which were, in any [**619] event, gratuitous under the facts of this case. Accordingly, I would sustain the first and second causes of action seeking to recover damages for the defendants' statutory/fiduciary violations subject to factual determinations to be made at trial as to whether the plaintiff [***6] waived the privilege.
The facts underlying this appeal, with one critical exception to be discussed infra, are not in substantial dispute. The plaintiff Chani Lightman and her husband, Dr. Hylton Ivan Lightman, both Orthodox Jews, were experiencing marital difficulties that prompted the plaintiff to see her rabbis, the defendants, Tzvi Flaum and David Weinberger. In 1995, in the course of their discussions, the plaintiff revealed various personal matters concerning her dissatisfaction with the state of her marriage and that she was deviating from some of the strictures of her religion. Subsequent thereto, the defendant rabbis revealed these confidences to Dr. Lightman. Moreover, in the matrimonial action commenced by the plaintiff in 1996, the defendant rabbis gratuitously repeated their disclosures by way of affirmations submitted in opposition to the plaintiff's then-pending pendente lite application.
The plaintiff commenced this action in 1997 asserting five causes of action. Insofar as pertinent, the plaintiff's first two causes of action sought to recover damages for each of the defendant rabbis' intentional violations of the "penitent-clergy privilege" [***7] (see, CPLR 4505).
II To correctly decide the substantive issues presented on this appeal, it is necessary to understand the unusual procedural path this case followed. The defendants answered the complaint with a motion to dismiss pursuant to CPLR 3211 (a) (7). Insofar as relevant to the first two causes of action, the defendants argued that the plaintiff had no private right of action for the alleged violation of CPLR 4505 which they regarded as a mere rule of evidence. The plaintiff opposed this motion, characterizing her first two causes of action as alleging an actionable "breach of fiduciary duty arising from the breach of the clergy-penitent privilege." In the alternative, the plaintiff [*376] pointed to the numerous cases recognizing the existence of private rights of action against health care and other professionals for violating analogous confidentiality statutes, and argued that her claims against the rabbis were similarly cognizable.
By order dated November 7, 1997, the Supreme Court notified the parties that it was converting the defendants' motion to dismiss into one for summary [***8] judgment pursuant to CPLR 3211 (c). The Supreme Court directed the parties to submit affidavits or other probative evidence within 30 days, or pursuant to a schedule to be set by the parties. The parties opted to submit their affirmations according to an agreed-upon schedule. The defendant rabbis each submitted affirmations on or about December 22, 1997. Among other things, the rabbis claimed, for the very first time, that they were obligated under Jewish law to reveal to Dr. Lightman the plaintiff's confessed failure to engage in monthly purification rituals. The rabbis asserted that they were required to warn Dr. Lightman thereof to ensure his compliance with religious strictures. They also claimed that their disclosures via the affirmations they submitted in the divorce action were necessary to protect the religious upbringing of the Lightman children. They further denied having disclosed the confidences to anyone else.
When the plaintiff attempted to serve her affirmation dated December 29, 1997, the defense counsel rejected it as untimely. As his letter dated January 5, 1998, explained, the parties understood that upon the conversion of the motion [***9] from one to dismiss to one for summary judgment, "there was to be a simultaneous exchange of affidavits with no right of reply," and "the motion for summary judgment was [**620] fully submitted for decision on December 22, 1997."
The parties subsequently agreed to extend the date for full submission of papers beyond December 22, 1997. The plaintiff submitted an affirmation dated February 3, 1998, in addition to that dated December 29, 1997, and the defendant rabbis each submitted additional affirmations dated February 5, 1998. The plaintiff's affirmation of December 29, 1997, disputed the defendants' claims that they were obligated, under Jewish law, to make the disclosures to Dr. Lightman or the divorce court. Her affirmation dated February 3, 1998, disputed the rabbis' claims that they had not revealed her confidences except to Dr. Lightman and in the matrimonial action, and she named other individuals with whom she alleged the defendants had shared her confidences.
The defendants' affirmations dated February 5, 1998, were [*377] the final papers submitted on the motion. Therein, the defendants each claimed, Rabbi Weinberger for the very first time, that a third [***10] person had accompanied the plaintiff when she imparted her confidences. The defendant Flaum asserted that the plaintiff had been accompanied by her mother when she spoke to him, while the defendant Weinberger averred that a friend had accompanied the plaintiff "on more than one occasion" when she spoke to him. Thereafter, the case apparently was dormant for several months due to the plaintiff's substitution of counsel.
The Supreme Court issued an order dated November 18, 1998, in which it held that the disclosures by the defendants were actionable. The court granted partial summary judgment to the plaintiff on the issue of liability as against the defendant Weinberger for the breach of fiduciary duty of confidentiality, but denied partial summary judgment on this issue as against the defendant Flaum, holding a disposition as to him in abeyance pending an immediate trial on the factual issue of whether a third party was present at the time of the alleged confidential communication to that defendant.
However, as the Supreme Court would later reveal, it had not considered the plaintiff's affirmations of December 29, 1997, and February 3, 1998, nor had it considered the rabbis' [***11] affirmations of February 5, 1998, in rendering its decision and order of November 18, 1998. Accordingly, to resolve the confusion concerning the state of the record, the parties subsequently entered into a stipulation on January 12, 1999, pursuant to which, inter alia, the November 18, 1998, decision and order was recalled, and the parties and the Supreme Court agreed that a new order would be issued upon its consideration of all of the affirmations submitted.
Consistent with the above, on or about March 4, 1999, the Supreme Court issued an order formally recalling and vacating the November 18, 1998, order. On that same date, the Supreme Court issued the order now on appeal, which, inter alia, stated: "Accordingly, upon the foregoing, the motion to dismiss or for summary judgment as to the first and second causes of action for breach of the fiduciary duty of confidentiality is granted in terms of liability only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the [***12] Rabbis in their spiritual capacity or to obtain spiritual guidance, and isotherwise denied" (Lightman v Flaum, 179 Misc 2d 1007, 1018).
[*378]
While the Supreme Court's precise holding is less than crystal clear from the foregoing, it is apparent that it intended to sustain the plaintiff's first two causes of action alleging breaches of the defendants' respective fiduciary duties of confidentiality, subject to the defendants sustaining their burden of proving their defenses. [**621] Thus, in effect, the Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the first and second causes of action inasmuch as it referred several factual issues for an immediate trial that still has not taken place. In any event, the Supreme Court found that the defendants' respective violations of the clergy-penitent privilege provided by CPLR 4505 afforded the plaintiff cognizable causes of action for breach of the fiduciary duty of confidentiality and that, since no First Amendment violation resulted from the enforcement of the clergy-penitent privilege, the rabbis would not be shielded from liability [***13] in tort.
III In my view, the majority has deprived the plaintiff of her entitlement to a determination of the substantial issues vigorously contested both before the Supreme Court and on appeal. The majority's reasoning that the plaintiff failed to demonstrate a triable issue of fact with respect to whether she waived her clergy-penitent privilege is simply not supportable for several reasons.
First, and perhaps most significantly, the majority's conclusion that the plaintiff waived her clergy-penitent privilege by failing to controvert the defendants' claims regarding the presence of third parties, is based upon a theory that was never advanced at any stage of the litigation by any of the parties. It is entirely unpreserved. It was not advanced by the defendants before Justice Goldstein in the Supreme Court, nor raised in their appellate briefs, nor mentioned in oral argument. Indeed, in contrast to the majority's finding that no issues of fact survived the parties' affirmations, the defendants' counsel expressly acknowledged to Justice Goldstein during the parties' on-the-record stipulation discussions that "your decision is going to be, in essence, a denial of [***14] our motion to dismiss, and whatever happens with regard to summary judgment, you will treat that there is going to be a fact issue." Clearly, the majority's conclusion that the plaintiff failed to demonstrate the existence of issues of fact to withstand the defendants' summary judgment motion is based upon a theory completely unanticipated by the parties. Nor is there any rationale to [*379] justify the majority reaching this in its interest of justice jurisdiction. On the contrary, justice requires that the plaintiff be afforded her day in court.
Second, the majority's reasoning is flawed in that it fails to recognize that under the unusual procedural circumstances of this case, where there was to be a simultaneous exchange of affirmations. The plaintiff was precluded from responding to the defendants' last submissions. As noted, the allegations of the defendants identifying the third parties allegedly present were advanced by the rabbis in the very last papers submitted on the motion. As per the stipulation of the parties, there was to be "no right of reply." Against this procedural backdrop, it is blatantly improper for this Court to find that the defendants [***15] are entitled to summary judgment. It is simply not permissible for the defendants "to shift to [the] plaintiff ... the burden to demonstrate a material issue of fact at a time when [the] plaintiff has neither the obligation nor opportunity to respond absent express leave of court" (Lumbermen's Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625). Thus, for this reason as well, it is improper to award summary judgment to the defendants on the issue of waiver.
Third, the majority ignores the assertion in the plaintiff's December 29, 1997, affirmation that she "saw Rabbi Flaum privately," and the assertions in her December 19, 1997, affirmation that she expected her communications with both rabbis to remain confidential.
Fourth, the defendants failed to establish that third parties were present at all pertinent times that disclosures were made. Rabbi Weinberger conclusorily asserted that "[o]n more than one occasion, Mrs. Lightman appeared for her meeting [**622] with her friend ... who was a member of my congregation." Notably, Rabbi Weinberger did not allege that the friend was present on every occasion that the plaintiff spoke with him, nor did [***16] he allege that all confidential disclosures were made in the presence of the friend. Because this was a non-issue to the parties, and because of the simultaneous exchange of affidavits, the plaintiff had no opportunity to provide more specific details. Nevertheless, the majority has explicitly concluded that the plaintiff's friend was present at all pertinent times when confidential matters were discussed and that such third-party presence, as a matter of law, resulted in a waiver of the privilege. Clearly no such conclusion is borne out by the record. At a minimum, these conflicting factual assertions clearly give rise to the existence of issues of fact precluding any award of summary judgment (see, Walker v Mount Vernon Hosp., 272 AD2d 468; [*380] Gleeson-Casey v Otis El. Co., 268 AD2d 406; Boyd v Trent, 262 AD2d 260; M. Sobol, Inc. v Goldman, 259 AD2d 526; Sayers v Albicocco, 256 AD2d 323).
Fifth, and of critical importance, even assuming that the plaintiff did bring her mother or her friend to all of the meetings with the defendants and that these third parties were present when the [***17] relevant confidences were revealed, it still would not be dispositive on the issue of waiver. Although the general rule is that the presence of a third party when an otherwise confidential communication is made results in a waiver of the privilege, exceptions exist; if the communication was intended to be confidential, the fact that a third person was present does not necessarily destroy the privilege.
Generally, the Court of Appeals has recognized: "The true test [of determining whether a waiver has occurred] appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute." (People v Decina, 2 NY2d 133, 145; see also, People v Osorio, 75 NY2d 80). The Appellate Division, First Department, had an opportunity to apply this rule in a case that is materially analogous to the instant case.
In Stroh v General Motors Corp. (213 AD2d 267), a Mrs. Maycheck lost control of her car in Washington Square Park and injured numerous pedestrians. She was sued [***18] by at least 12 parties, along with General Motors, the manufacturer of the car. The attorneys for General Motors sought to elicit details about Mrs. Maycheck's discussions with her attorneys, arguing that the presence of Mrs. Maycheck's daughter during the attorney- client discussions resulted in a waiver of the privilege that would otherwise attach to these communications. The Appellate Division, First Department, rejected this waiver argument, acknowledging that the 76-year-old driver was entitled to the moral support of her daughter, concerning this most traumatic event, without having waived the privilege. The Court analogized this situation to the many cases holding that the presence of a party's agent during attorney-client discussions will generally not be held to have destroyed the privilege. The Court noted: "Generally, the circumstances of each case will determine whether a communication by a client to an attorney should be afforded the cloak of privilege (Matter of Jacqueline F., 47 NY2d 215, 222)" (Stroh v General Motors Corp., supra, at 268).
In the instant case, the plaintiff was involved in a contentious [*381] and emotionally [***19] draining marital break-up. She allegedly sought counseling from her rabbis. Even [**623] assuming that the defendants conclusively established that the plaintiff was accompanied by her mother or her friend on some of these occasions, as in Stroh, certainly her choice to have a close relative or friend to accompany her for emotional support in this time of marital discord did not, de facto, constitute a waiver of the clergy-penitent privilege. Therefore, even if the plaintiff had failed to refute the specific allegations made by the defendant rabbis in their February 5, 1998, affirmations, a factual issue still remains as to whether she was in fact accompanied by a third person at all relevant times, and if so, whether under the circumstances she intended that the communications still would remain confidential. Accordingly, on this record, the disputed factual issue of whether the plaintiff waived the privilege cannot be determined as a matter of law. Simply stated, under no reasonable view of the record can it be concluded that the defendants established, as a matter of law, that the plaintiff intentionally waived the confidentiality privilege by bringing third parties [***20] to her meetings with the defendant rabbis.
IV Although the majority's conclusion that the plaintiff waived her privilege as a matter of law requires them to go no further, my disagreement with their conclusion as to that issue necessitates a discussion of two other significant issues to reach what I consider to be the appropriate disposition of this appeal.
The defendants have seriously argued, from the start, that CPLR 4505 is a mere rule of evidence, and that a violation thereof is not actionable. While apparently no court in this State has sanctioned an action for a breach of this statute, it is clear that the law of New York does permit redress for breaches of confidence such as occurred herein.
In pertinent part, CPLR 4505 provides that "[u]nless the person confessing or confiding waives the privilege, a clergy[member] or other minister of any religion ... shall not be allowed [to] disclose a confession or confidence made to him [or her] in his [or her] professional character as a spiritual advisor." While this statute had its origins in the Roman Catholic sacrament of Penance, it is nevertheless applicable [***21] to all clergy members as it "recognizes the societal value of encouraging communications" with the clergy for spiritual advice (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4505, at 683). It should be liberally construed to carry out the policy behind it (see, People v Sinski, 88 NY2d 487 [liberally construing physician-patient privilege]).
[*382]
The clergy-penitent privilege is purely a creation of statute; it was unknown at common-law (see, Matter of Keenan v Gigante, 47 NY2d 160, cert denied 444 US 887). The CPLR also contains other analogous privileges that protect communications between, inter alia, attorneys and clients (see, CPLR 4503), physicians and patients ( see, CPLR 4504), psychologists and clients (see, CPLR 4507), and social workers and clients (see, CPLR 4508). The physician-patient privilege, among others, was also unknown at common-law (see, Dillenbeck v Hess, 73 NY2d 278). While courts from time to time have disagreed as to the reasoning, [***22] it is nevertheless well settled that the law recognizes the existence of a private right of action for damages for the benefit of a client or patient whose confidences have been betrayed by a health care professional (see, Doe v Community Health Plan- Kaiser Corp., 268 AD2d 183; Harley v Druzba, 169 AD2d 1001; Oringer v Rotkin, 162 AD2d 113; Tighe v Ginsberg, 146 AD2d 268; MacDonald v Clinger, 84 AD2d 482). Such claims are generally sustained [**624] on a theory that the violation of the confidence constitutes a breach of a fiduciary or contractual duty (see, Madden v Creative Servs., 84 NY2d 738).
I need not repeat the reasoning expressed in my dissent in Langford v Roman Catholic Diocese (271 AD2d 494) concerning the availability of a cause of action for breach of fiduciary duty against a member of the clergy. In any event, the holding of Langford is not dispositive of the issues raised in the matter at bar. The instant plaintiff alleges discreet, intentional acts, absolutely prohibited by a clearly-worded statute. In Langford, the plaintiff asserted [***23] common-law fiduciary claims predicated upon her priest's violations of his duties of trust and confidence and his abuse of power, by seducing her as she came to him for counsel and solace. Characterizing Ms. Langford's causes of action as alleging clergy malpractice, the majority therein affirmed the dismissal of the complaint finding that inquiry into the parties' relationship would require the Court to " 'venture into forbidden ecclesiastical terrain' " ( Langford v Roman Catholic Diocese, supra, at 495). In the instant matter, certainly a determination of whether the defendant rabbis violated CPLR 4505 raises no similar concerns. Moreover, the defendant rabbis' alleged violations were admittedly intentional. The Langford majority did not dismiss the plaintiff's intentional tort claims on constitutional grounds, but solely on grounds of untimeliness. Thus, since Langford does not immunize the clergy from liability for intentional torts, it has no bearing on the defendant rabbis' alleged intentional acts in this case.
The other contention seriously advanced by the defendants [*383] is that they may not be held liable [***24] for fiduciary breaches flowing from their violation of the clergy-penitent privilege because they made their disclosures pursuant to Jewish law. As explained by the defendant Flaum in his affirmation of December 22, 1997, insofar as the plaintiff allegedly admitted "seeing men socially outside the marriage" and "that she had stopped engaging in religious purification laws," he was affirmatively obligated, as a rabbi, to apprise Dr. Lightman thereof "to prevent [Dr. Lightman] from violating Torah Law." In essence, the defendants contend that notwithstanding the secular command of CPLR 4505 that "thou shalt not tell," in light of the nature of the confidences allegedly revealed by the plaintiff, Jewish law issued a contrary and overriding command that "thou shalt tell" (cf., Kruglikov v Kruglikov, 29 Misc 2d 17 [wherein the New YorkBoard of Rabbis opined that " 'any confidence reposed in [a rabbi] by [a]husband or wife ... who has come to him for counseling [may] not be divulged' "]).
Courts have long struggled with issues of religious freedom and State regulation thereof. Prior to any discussion of that weighty issue, it is apparent [***25] that, as a matter of indisputable fact, the defendant rabbis' claimed justifications for revealing the plaintiff's confidences to her husband are no more than transparent contrivances and red herrings.
Both of the defendants asserted in their affirmations in the matrimonial action that the plaintiff admitted that she had abstained from religious purification (mikva), so she did not have to engage in sexual relations with her husband, and they needed to warn Dr. Lightman to protect him. However, in his December 22, 1997, affirmation in support of the motion to dismiss, Rabbi Flaum averred "[m]ore than two years ago, Dr. Lightman told me that he and his wife were experiencing marital difficulties. He said that his wife was deviating from the laws and traditions of Orthodox Judaism and that he thought she was engaging in adulterous relationships." Furthermore, Rabbi Flaum averred that the plaintiff had told him that she had [**625] stopped engaging in religious purification "which resulted in the cessation of all sexual activity with her husband." Thus, by Rabbi Flaum's own admissions, Dr. Lightman knew that his wife was eschewing Orthodox rituals, he believed that she [***26] was having an affair, and all sexual relations had ceased. This set of facts clearly negates Rabbi Flaum's avowed need to reveal these matters to Dr. Lightman "to prevent him from violating Torah Law": Dr. Lightman already knew what was going on. From this perspective, Rabbi Flaum's intentionally destructive [*384] and arguably malicious revelations to Dr. Lightman were purely gratuitous and wholly unjustified under any circumstances (see, Miller, Silence is Golden: Clergy Confidence and the Interaction Between Statutes and Caselaw, 22 Am J Trial Advocacy 31, 66 quoting Leviticus 19:16: "Thou Shalt not go up and down as a talebearer among thy people"). The defendant Rabbi Weinberger made identical assertions in his affirmation of December 22, 1997, which are similarly unjustified.
In criminal cases we have held that police testimony in suppression hearings should not be credited where it has obviously been fabricated and tailored to overcome legitimate constitutional objections (see, People v Lewis, 195 AD2d 523; People v Lebron, 184 AD2d 784; People v Miret-Gonzalez, 159 AD2d 647; see also, Matter of Bernice J., 248 AD2d 538; [***27] Matter of Carl W., 174 AD2d 678 [the latter two cases applying the above stated rule in juvenile delinquency proceedings]). In this case, the defendant rabbis havepresented the converse of that argument. They have affirmatively tailored their affirmations so as to create constitutional objections to shield them from liability. However, their objections are transparent and unpersuasive on the facts of this case, and thus provide them no protection under the First Amendment.
The defendants' revelations via their affirmations in the matrimonial action were gratuitous and unwarranted for the same reasons. Even assuming that the plaintiff's eschewal of the mikva or other alleged transgressions from Orthodoxy posed any genuine threat to the well-being of the children, such that it would be relevant on the issue of temporary custody, Dr. Lightman was certainly able to oppose the plaintiff's pendente lite application by raising these very same assertions from his personal knowledge. Whether or not the defendants' superfluous, derogatory affirmations had been "bought" by Dr. Lightman's "largess" and generous financial contributions as a transparent effort to embarrass [***28] the plaintiff as she alleged, it is nonetheless clear that they were duplicative, cumulative, and obviously unnecessary for the court's determination of the temporary custody issue. Once again, on the facts of this case, the defendants' "free exercise" justification defense is conclusory, illusory, and unconvincing.
Furthermore, insofar as the plaintiff is seeking to recover damages for the fiduciary breach that resulted from the defendants' intentional violations of CPLR 4505, I am persuaded that this statute does not place undue burdens on their free exercise rights. The concept of the separation of church and state is deeply imbedded in our law. The First Amendment [*385] to the United States Constitution commands, in relevant part: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The concept of "free exercise" is made up of two component parts; "freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject
Chani Lightman, Respondent, v. Tzvi Flaum et al., Appellants.
278 A.D.2d 373 *717 N.Y.S.2d 617 **
2000 N.Y. App. Div. LEXIS 13283 ***
1999-06048
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 22, 2000, Argued
December 18, 2000, Decided
Judges:Santucci, J. P., Florio, and McGinity, JJ., concur.
Keywords:
affirmation, rabbis, confidence, causes of action, religious, summary judgment, waived, rabbi, clergy-penitent, disclosure, clergy, third person, confidentiality, fiduciary, breach of fiduciary duty, motion to dismiss, matter of law, First Amendment, intentional infliction of emotional distress, spiritual, marital, free exercise, third parties, accompanied, entitled to summary judgment, purification, actionable, cognizable, matrimonial action, confidential
Opinion:
[*373] [**617] Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion [***2] which were for summary judgment dismissing the first, second, third, and fourth causes of action are granted, and the complaint is dismissed.
The plaintiff, an Orthodox Jewish woman, was experiencing marital difficulties and turned to the defendant rabbis. During her talks with the defendants, she disclosed certain private information to them. However, either the plaintiff's [**618] mother or a friend were present during those conversations. The plaintiff subsequently commenced a divorce action against her husband. In opposition to the plaintiff's motion for pendente lite relief, her husband submitted affirmations by the defendants which contained some of the material she had disclosed to them. As a result of the disclosure, the plaintiff commenced this action against the defendants, asserting causes of action for, inter alia, breach of the fiduciary duty of confidentiality and the intentional infliction of emotional distress. Upon converting the defendants' motion to dismiss pursuant to CPLR 3211 (a) (7) to one for summary judgment, the Supreme Court, in effect, denied the defendants summary judgment on the causes of action [*374] for [***3] breach of fiduciary duty, subject to a determination, inter alia, of whether the plaintiff's privilege had been waived by the presence of a third person. The Supreme Court also found that the defendants were not entitled to summary judgment on the third and fourth causes of action for intentional infliction of emotional distress. We reverse.
After the defendants made a prima facie showing that they were entitled to summary judgment as a matter of law, the plaintiff failed to demonstrate the existence of a triable issue of fact. Specifically, the plaintiff failed to show that the clergy-penitent privilege was not waived by the presence of a third person during her conversations with each of the defendants (see, Zuckerman v City of New York, 49 NY2d 557, 562). In view of this determination, we do not determine whether the plaintiff stated a cognizable claim for breach of fiduciary duty.
Likewise, the defendants are entitled to summary judgment dismissing the third and fourth causes of action alleging intentional infliction of emotional distress. The facts alleged [***4] regarding the defendants' conduct did not rise to a level which would satisfy the "extreme and outrageous conduct" element of such a cause of action and, therefore, summary judgment was warranted (Freihofer v Hearst Corp., 65 NY2d 135).
Santucci, J. P., Florio, and McGinity, JJ., concur.
Concur by: S. MILLER (In Part)
Concur:
S. Miller, J., Concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof denying that branch of the defendants' motion which was, in effect, for summary judgment dismissing the third and fourth causes of action to recover damages for the intentional infliction of emotional distress and substituting therefor a provision granting that branch of the motion, and otherwise affirming the order, with the following memorandum, in which Friedmann, J., concurs: I agree with my colleagues in the majority that the Supreme Court erred insofar as it failed to dismiss the plaintiff's causes of action to recover damages for intentional infliction of emotional distress. However, I most strenuously disagree [***5] insofar as my colleagues have determined, as a matter of law, that the plaintiff waived her right to seek redress for the defendants' obvious and intentional violations of their legal duty not to disclose confidences she imparted to them while seeking religious counseling. Insofar as pertinent to this appeal, CPLR 4505 provides a secular command that "thou shalt not tell." The defendants twice violated that command. Furthermore, as the Supreme Court found, the plaintiff has a private right of action for the fiduciary breach flowing from this statutory violation. Finally, the defendants have not [*375] demonstrated to my satisfaction that the First Amendment precludes the imposition of liability where, as here, they engaged in intentional acts in clear violation of a valid and neutral enactment that was not intended to regulate religious conduct and which were, in any [**619] event, gratuitous under the facts of this case. Accordingly, I would sustain the first and second causes of action seeking to recover damages for the defendants' statutory/fiduciary violations subject to factual determinations to be made at trial as to whether the plaintiff [***6] waived the privilege.
The facts underlying this appeal, with one critical exception to be discussed infra, are not in substantial dispute. The plaintiff Chani Lightman and her husband, Dr. Hylton Ivan Lightman, both Orthodox Jews, were experiencing marital difficulties that prompted the plaintiff to see her rabbis, the defendants, Tzvi Flaum and David Weinberger. In 1995, in the course of their discussions, the plaintiff revealed various personal matters concerning her dissatisfaction with the state of her marriage and that she was deviating from some of the strictures of her religion. Subsequent thereto, the defendant rabbis revealed these confidences to Dr. Lightman. Moreover, in the matrimonial action commenced by the plaintiff in 1996, the defendant rabbis gratuitously repeated their disclosures by way of affirmations submitted in opposition to the plaintiff's then-pending pendente lite application.
The plaintiff commenced this action in 1997 asserting five causes of action. Insofar as pertinent, the plaintiff's first two causes of action sought to recover damages for each of the defendant rabbis' intentional violations of the "penitent-clergy privilege" [***7] (see, CPLR 4505).
II To correctly decide the substantive issues presented on this appeal, it is necessary to understand the unusual procedural path this case followed. The defendants answered the complaint with a motion to dismiss pursuant to CPLR 3211 (a) (7). Insofar as relevant to the first two causes of action, the defendants argued that the plaintiff had no private right of action for the alleged violation of CPLR 4505 which they regarded as a mere rule of evidence. The plaintiff opposed this motion, characterizing her first two causes of action as alleging an actionable "breach of fiduciary duty arising from the breach of the clergy-penitent privilege." In the alternative, the plaintiff [*376] pointed to the numerous cases recognizing the existence of private rights of action against health care and other professionals for violating analogous confidentiality statutes, and argued that her claims against the rabbis were similarly cognizable.
By order dated November 7, 1997, the Supreme Court notified the parties that it was converting the defendants' motion to dismiss into one for summary [***8] judgment pursuant to CPLR 3211 (c). The Supreme Court directed the parties to submit affidavits or other probative evidence within 30 days, or pursuant to a schedule to be set by the parties. The parties opted to submit their affirmations according to an agreed-upon schedule. The defendant rabbis each submitted affirmations on or about December 22, 1997. Among other things, the rabbis claimed, for the very first time, that they were obligated under Jewish law to reveal to Dr. Lightman the plaintiff's confessed failure to engage in monthly purification rituals. The rabbis asserted that they were required to warn Dr. Lightman thereof to ensure his compliance with religious strictures. They also claimed that their disclosures via the affirmations they submitted in the divorce action were necessary to protect the religious upbringing of the Lightman children. They further denied having disclosed the confidences to anyone else.
When the plaintiff attempted to serve her affirmation dated December 29, 1997, the defense counsel rejected it as untimely. As his letter dated January 5, 1998, explained, the parties understood that upon the conversion of the motion [***9] from one to dismiss to one for summary judgment, "there was to be a simultaneous exchange of affidavits with no right of reply," and "the motion for summary judgment was [**620] fully submitted for decision on December 22, 1997."
The parties subsequently agreed to extend the date for full submission of papers beyond December 22, 1997. The plaintiff submitted an affirmation dated February 3, 1998, in addition to that dated December 29, 1997, and the defendant rabbis each submitted additional affirmations dated February 5, 1998. The plaintiff's affirmation of December 29, 1997, disputed the defendants' claims that they were obligated, under Jewish law, to make the disclosures to Dr. Lightman or the divorce court. Her affirmation dated February 3, 1998, disputed the rabbis' claims that they had not revealed her confidences except to Dr. Lightman and in the matrimonial action, and she named other individuals with whom she alleged the defendants had shared her confidences.
The defendants' affirmations dated February 5, 1998, were [*377] the final papers submitted on the motion. Therein, the defendants each claimed, Rabbi Weinberger for the very first time, that a third [***10] person had accompanied the plaintiff when she imparted her confidences. The defendant Flaum asserted that the plaintiff had been accompanied by her mother when she spoke to him, while the defendant Weinberger averred that a friend had accompanied the plaintiff "on more than one occasion" when she spoke to him. Thereafter, the case apparently was dormant for several months due to the plaintiff's substitution of counsel.
The Supreme Court issued an order dated November 18, 1998, in which it held that the disclosures by the defendants were actionable. The court granted partial summary judgment to the plaintiff on the issue of liability as against the defendant Weinberger for the breach of fiduciary duty of confidentiality, but denied partial summary judgment on this issue as against the defendant Flaum, holding a disposition as to him in abeyance pending an immediate trial on the factual issue of whether a third party was present at the time of the alleged confidential communication to that defendant.
However, as the Supreme Court would later reveal, it had not considered the plaintiff's affirmations of December 29, 1997, and February 3, 1998, nor had it considered the rabbis' [***11] affirmations of February 5, 1998, in rendering its decision and order of November 18, 1998. Accordingly, to resolve the confusion concerning the state of the record, the parties subsequently entered into a stipulation on January 12, 1999, pursuant to which, inter alia, the November 18, 1998, decision and order was recalled, and the parties and the Supreme Court agreed that a new order would be issued upon its consideration of all of the affirmations submitted.
Consistent with the above, on or about March 4, 1999, the Supreme Court issued an order formally recalling and vacating the November 18, 1998, order. On that same date, the Supreme Court issued the order now on appeal, which, inter alia, stated: "Accordingly, upon the foregoing, the motion to dismiss or for summary judgment as to the first and second causes of action for breach of the fiduciary duty of confidentiality is granted in terms of liability only to the extent of limiting, clarifying and defining the factual issues for trial, namely, whether the privilege had been waived by the presence of a third person, and whether the nature of the meeting was such that the communications and disclosures were made to the [***12] Rabbis in their spiritual capacity or to obtain spiritual guidance, and isotherwise denied" (Lightman v Flaum, 179 Misc 2d 1007, 1018).
[*378]
While the Supreme Court's precise holding is less than crystal clear from the foregoing, it is apparent that it intended to sustain the plaintiff's first two causes of action alleging breaches of the defendants' respective fiduciary duties of confidentiality, subject to the defendants sustaining their burden of proving their defenses. [**621] Thus, in effect, the Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the first and second causes of action inasmuch as it referred several factual issues for an immediate trial that still has not taken place. In any event, the Supreme Court found that the defendants' respective violations of the clergy-penitent privilege provided by CPLR 4505 afforded the plaintiff cognizable causes of action for breach of the fiduciary duty of confidentiality and that, since no First Amendment violation resulted from the enforcement of the clergy-penitent privilege, the rabbis would not be shielded from liability [***13] in tort.
III In my view, the majority has deprived the plaintiff of her entitlement to a determination of the substantial issues vigorously contested both before the Supreme Court and on appeal. The majority's reasoning that the plaintiff failed to demonstrate a triable issue of fact with respect to whether she waived her clergy-penitent privilege is simply not supportable for several reasons.
First, and perhaps most significantly, the majority's conclusion that the plaintiff waived her clergy-penitent privilege by failing to controvert the defendants' claims regarding the presence of third parties, is based upon a theory that was never advanced at any stage of the litigation by any of the parties. It is entirely unpreserved. It was not advanced by the defendants before Justice Goldstein in the Supreme Court, nor raised in their appellate briefs, nor mentioned in oral argument. Indeed, in contrast to the majority's finding that no issues of fact survived the parties' affirmations, the defendants' counsel expressly acknowledged to Justice Goldstein during the parties' on-the-record stipulation discussions that "your decision is going to be, in essence, a denial of [***14] our motion to dismiss, and whatever happens with regard to summary judgment, you will treat that there is going to be a fact issue." Clearly, the majority's conclusion that the plaintiff failed to demonstrate the existence of issues of fact to withstand the defendants' summary judgment motion is based upon a theory completely unanticipated by the parties. Nor is there any rationale to [*379] justify the majority reaching this in its interest of justice jurisdiction. On the contrary, justice requires that the plaintiff be afforded her day in court.
Second, the majority's reasoning is flawed in that it fails to recognize that under the unusual procedural circumstances of this case, where there was to be a simultaneous exchange of affirmations. The plaintiff was precluded from responding to the defendants' last submissions. As noted, the allegations of the defendants identifying the third parties allegedly present were advanced by the rabbis in the very last papers submitted on the motion. As per the stipulation of the parties, there was to be "no right of reply." Against this procedural backdrop, it is blatantly improper for this Court to find that the defendants [***15] are entitled to summary judgment. It is simply not permissible for the defendants "to shift to [the] plaintiff ... the burden to demonstrate a material issue of fact at a time when [the] plaintiff has neither the obligation nor opportunity to respond absent express leave of court" (Lumbermen's Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625). Thus, for this reason as well, it is improper to award summary judgment to the defendants on the issue of waiver.
Third, the majority ignores the assertion in the plaintiff's December 29, 1997, affirmation that she "saw Rabbi Flaum privately," and the assertions in her December 19, 1997, affirmation that she expected her communications with both rabbis to remain confidential.
Fourth, the defendants failed to establish that third parties were present at all pertinent times that disclosures were made. Rabbi Weinberger conclusorily asserted that "[o]n more than one occasion, Mrs. Lightman appeared for her meeting [**622] with her friend ... who was a member of my congregation." Notably, Rabbi Weinberger did not allege that the friend was present on every occasion that the plaintiff spoke with him, nor did [***16] he allege that all confidential disclosures were made in the presence of the friend. Because this was a non-issue to the parties, and because of the simultaneous exchange of affidavits, the plaintiff had no opportunity to provide more specific details. Nevertheless, the majority has explicitly concluded that the plaintiff's friend was present at all pertinent times when confidential matters were discussed and that such third-party presence, as a matter of law, resulted in a waiver of the privilege. Clearly no such conclusion is borne out by the record. At a minimum, these conflicting factual assertions clearly give rise to the existence of issues of fact precluding any award of summary judgment (see, Walker v Mount Vernon Hosp., 272 AD2d 468; [*380] Gleeson-Casey v Otis El. Co., 268 AD2d 406; Boyd v Trent, 262 AD2d 260; M. Sobol, Inc. v Goldman, 259 AD2d 526; Sayers v Albicocco, 256 AD2d 323).
Fifth, and of critical importance, even assuming that the plaintiff did bring her mother or her friend to all of the meetings with the defendants and that these third parties were present when the [***17] relevant confidences were revealed, it still would not be dispositive on the issue of waiver. Although the general rule is that the presence of a third party when an otherwise confidential communication is made results in a waiver of the privilege, exceptions exist; if the communication was intended to be confidential, the fact that a third person was present does not necessarily destroy the privilege.
Generally, the Court of Appeals has recognized: "The true test [of determining whether a waiver has occurred] appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute." (People v Decina, 2 NY2d 133, 145; see also, People v Osorio, 75 NY2d 80). The Appellate Division, First Department, had an opportunity to apply this rule in a case that is materially analogous to the instant case.
In Stroh v General Motors Corp. (213 AD2d 267), a Mrs. Maycheck lost control of her car in Washington Square Park and injured numerous pedestrians. She was sued [***18] by at least 12 parties, along with General Motors, the manufacturer of the car. The attorneys for General Motors sought to elicit details about Mrs. Maycheck's discussions with her attorneys, arguing that the presence of Mrs. Maycheck's daughter during the attorney- client discussions resulted in a waiver of the privilege that would otherwise attach to these communications. The Appellate Division, First Department, rejected this waiver argument, acknowledging that the 76-year-old driver was entitled to the moral support of her daughter, concerning this most traumatic event, without having waived the privilege. The Court analogized this situation to the many cases holding that the presence of a party's agent during attorney-client discussions will generally not be held to have destroyed the privilege. The Court noted: "Generally, the circumstances of each case will determine whether a communication by a client to an attorney should be afforded the cloak of privilege (Matter of Jacqueline F., 47 NY2d 215, 222)" (Stroh v General Motors Corp., supra, at 268).
In the instant case, the plaintiff was involved in a contentious [*381] and emotionally [***19] draining marital break-up. She allegedly sought counseling from her rabbis. Even [**623] assuming that the defendants conclusively established that the plaintiff was accompanied by her mother or her friend on some of these occasions, as in Stroh, certainly her choice to have a close relative or friend to accompany her for emotional support in this time of marital discord did not, de facto, constitute a waiver of the clergy-penitent privilege. Therefore, even if the plaintiff had failed to refute the specific allegations made by the defendant rabbis in their February 5, 1998, affirmations, a factual issue still remains as to whether she was in fact accompanied by a third person at all relevant times, and if so, whether under the circumstances she intended that the communications still would remain confidential. Accordingly, on this record, the disputed factual issue of whether the plaintiff waived the privilege cannot be determined as a matter of law. Simply stated, under no reasonable view of the record can it be concluded that the defendants established, as a matter of law, that the plaintiff intentionally waived the confidentiality privilege by bringing third parties [***20] to her meetings with the defendant rabbis.
IV Although the majority's conclusion that the plaintiff waived her privilege as a matter of law requires them to go no further, my disagreement with their conclusion as to that issue necessitates a discussion of two other significant issues to reach what I consider to be the appropriate disposition of this appeal.
The defendants have seriously argued, from the start, that CPLR 4505 is a mere rule of evidence, and that a violation thereof is not actionable. While apparently no court in this State has sanctioned an action for a breach of this statute, it is clear that the law of New York does permit redress for breaches of confidence such as occurred herein.
In pertinent part, CPLR 4505 provides that "[u]nless the person confessing or confiding waives the privilege, a clergy[member] or other minister of any religion ... shall not be allowed [to] disclose a confession or confidence made to him [or her] in his [or her] professional character as a spiritual advisor." While this statute had its origins in the Roman Catholic sacrament of Penance, it is nevertheless applicable [***21] to all clergy members as it "recognizes the societal value of encouraging communications" with the clergy for spiritual advice (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4505, at 683). It should be liberally construed to carry out the policy behind it (see, People v Sinski, 88 NY2d 487 [liberally construing physician-patient privilege]).
[*382]
The clergy-penitent privilege is purely a creation of statute; it was unknown at common-law (see, Matter of Keenan v Gigante, 47 NY2d 160, cert denied 444 US 887). The CPLR also contains other analogous privileges that protect communications between, inter alia, attorneys and clients (see, CPLR 4503), physicians and patients ( see, CPLR 4504), psychologists and clients (see, CPLR 4507), and social workers and clients (see, CPLR 4508). The physician-patient privilege, among others, was also unknown at common-law (see, Dillenbeck v Hess, 73 NY2d 278). While courts from time to time have disagreed as to the reasoning, [***22] it is nevertheless well settled that the law recognizes the existence of a private right of action for damages for the benefit of a client or patient whose confidences have been betrayed by a health care professional (see, Doe v Community Health Plan- Kaiser Corp., 268 AD2d 183; Harley v Druzba, 169 AD2d 1001; Oringer v Rotkin, 162 AD2d 113; Tighe v Ginsberg, 146 AD2d 268; MacDonald v Clinger, 84 AD2d 482). Such claims are generally sustained [**624] on a theory that the violation of the confidence constitutes a breach of a fiduciary or contractual duty (see, Madden v Creative Servs., 84 NY2d 738).
I need not repeat the reasoning expressed in my dissent in Langford v Roman Catholic Diocese (271 AD2d 494) concerning the availability of a cause of action for breach of fiduciary duty against a member of the clergy. In any event, the holding of Langford is not dispositive of the issues raised in the matter at bar. The instant plaintiff alleges discreet, intentional acts, absolutely prohibited by a clearly-worded statute. In Langford, the plaintiff asserted [***23] common-law fiduciary claims predicated upon her priest's violations of his duties of trust and confidence and his abuse of power, by seducing her as she came to him for counsel and solace. Characterizing Ms. Langford's causes of action as alleging clergy malpractice, the majority therein affirmed the dismissal of the complaint finding that inquiry into the parties' relationship would require the Court to " 'venture into forbidden ecclesiastical terrain' " ( Langford v Roman Catholic Diocese, supra, at 495). In the instant matter, certainly a determination of whether the defendant rabbis violated CPLR 4505 raises no similar concerns. Moreover, the defendant rabbis' alleged violations were admittedly intentional. The Langford majority did not dismiss the plaintiff's intentional tort claims on constitutional grounds, but solely on grounds of untimeliness. Thus, since Langford does not immunize the clergy from liability for intentional torts, it has no bearing on the defendant rabbis' alleged intentional acts in this case.
The other contention seriously advanced by the defendants [*383] is that they may not be held liable [***24] for fiduciary breaches flowing from their violation of the clergy-penitent privilege because they made their disclosures pursuant to Jewish law. As explained by the defendant Flaum in his affirmation of December 22, 1997, insofar as the plaintiff allegedly admitted "seeing men socially outside the marriage" and "that she had stopped engaging in religious purification laws," he was affirmatively obligated, as a rabbi, to apprise Dr. Lightman thereof "to prevent [Dr. Lightman] from violating Torah Law." In essence, the defendants contend that notwithstanding the secular command of CPLR 4505 that "thou shalt not tell," in light of the nature of the confidences allegedly revealed by the plaintiff, Jewish law issued a contrary and overriding command that "thou shalt tell" (cf., Kruglikov v Kruglikov, 29 Misc 2d 17 [wherein the New YorkBoard of Rabbis opined that " 'any confidence reposed in [a rabbi] by [a]husband or wife ... who has come to him for counseling [may] not be divulged' "]).
Courts have long struggled with issues of religious freedom and State regulation thereof. Prior to any discussion of that weighty issue, it is apparent [***25] that, as a matter of indisputable fact, the defendant rabbis' claimed justifications for revealing the plaintiff's confidences to her husband are no more than transparent contrivances and red herrings.
Both of the defendants asserted in their affirmations in the matrimonial action that the plaintiff admitted that she had abstained from religious purification (mikva), so she did not have to engage in sexual relations with her husband, and they needed to warn Dr. Lightman to protect him. However, in his December 22, 1997, affirmation in support of the motion to dismiss, Rabbi Flaum averred "[m]ore than two years ago, Dr. Lightman told me that he and his wife were experiencing marital difficulties. He said that his wife was deviating from the laws and traditions of Orthodox Judaism and that he thought she was engaging in adulterous relationships." Furthermore, Rabbi Flaum averred that the plaintiff had told him that she had [**625] stopped engaging in religious purification "which resulted in the cessation of all sexual activity with her husband." Thus, by Rabbi Flaum's own admissions, Dr. Lightman knew that his wife was eschewing Orthodox rituals, he believed that she [***26] was having an affair, and all sexual relations had ceased. This set of facts clearly negates Rabbi Flaum's avowed need to reveal these matters to Dr. Lightman "to prevent him from violating Torah Law": Dr. Lightman already knew what was going on. From this perspective, Rabbi Flaum's intentionally destructive [*384] and arguably malicious revelations to Dr. Lightman were purely gratuitous and wholly unjustified under any circumstances (see, Miller, Silence is Golden: Clergy Confidence and the Interaction Between Statutes and Caselaw, 22 Am J Trial Advocacy 31, 66 quoting Leviticus 19:16: "Thou Shalt not go up and down as a talebearer among thy people"). The defendant Rabbi Weinberger made identical assertions in his affirmation of December 22, 1997, which are similarly unjustified.
In criminal cases we have held that police testimony in suppression hearings should not be credited where it has obviously been fabricated and tailored to overcome legitimate constitutional objections (see, People v Lewis, 195 AD2d 523; People v Lebron, 184 AD2d 784; People v Miret-Gonzalez, 159 AD2d 647; see also, Matter of Bernice J., 248 AD2d 538; [***27] Matter of Carl W., 174 AD2d 678 [the latter two cases applying the above stated rule in juvenile delinquency proceedings]). In this case, the defendant rabbis havepresented the converse of that argument. They have affirmatively tailored their affirmations so as to create constitutional objections to shield them from liability. However, their objections are transparent and unpersuasive on the facts of this case, and thus provide them no protection under the First Amendment.
The defendants' revelations via their affirmations in the matrimonial action were gratuitous and unwarranted for the same reasons. Even assuming that the plaintiff's eschewal of the mikva or other alleged transgressions from Orthodoxy posed any genuine threat to the well-being of the children, such that it would be relevant on the issue of temporary custody, Dr. Lightman was certainly able to oppose the plaintiff's pendente lite application by raising these very same assertions from his personal knowledge. Whether or not the defendants' superfluous, derogatory affirmations had been "bought" by Dr. Lightman's "largess" and generous financial contributions as a transparent effort to embarrass [***28] the plaintiff as she alleged, it is nonetheless clear that they were duplicative, cumulative, and obviously unnecessary for the court's determination of the temporary custody issue. Once again, on the facts of this case, the defendants' "free exercise" justification defense is conclusory, illusory, and unconvincing.
Furthermore, insofar as the plaintiff is seeking to recover damages for the fiduciary breach that resulted from the defendants' intentional violations of CPLR 4505, I am persuaded that this statute does not place undue burdens on their free exercise rights. The concept of the separation of church and state is deeply imbedded in our law. The First Amendment [*385] to the United States Constitution commands, in relevant part: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The concept of "free exercise" is made up of two component parts; "freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject
___________________________________________________________________________________
N.Y. woman sues rabbis over confidentiality breach
Jewish Bulletin of Northern California - November 27, 1998
NEW YORK (JPS) -- Two New York rabbis may have violated clergy-congregant confidentiality, an outraged state court judge announced last week.
At the same time, the judge made a precedent-setting ruling to allow an Orthodox woman to sue the rabbis whom she claims betrayed her by telling her intimate secrets to her estranged husband in a child-custody battle.
The incident began when Chani Lightman of Long Island sought religious counseling about her troubled marriage from the rabbis in 1995.
After she filed for a civil divorce in February 1996 and sought custody of her four children, the rabbis revealed her secrets to her husband's lawyers, according to her lawsuit.
Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.
"No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case," the judge wrote in a ruling released Thursday of last week.
"Moreover, to do so under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous."
Flaum and Weinberger were said to have provided written statements to the husband's lawyers that Chani Lightman had stopped monthly visits to the mikvah for ritual purification.
She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow contends that the rabbis had a religious obligation to share the information with the divorce court, because it dealt with Chani Lightman's ability to raise the children in accordance with Orthodox law and customs.
While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.
Her husband has refused to give her a get, a religious divorce required under Jewish law.
Chani Lightman, a 38-year-old nurse, told the New York Post that she had been betrayed by the rabbis and estranged from the Orthodox community.
"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."
The Jewish Telegraphic Agency contributed to this report.
Jewish Bulletin of Northern California - November 27, 1998
NEW YORK (JPS) -- Two New York rabbis may have violated clergy-congregant confidentiality, an outraged state court judge announced last week.
At the same time, the judge made a precedent-setting ruling to allow an Orthodox woman to sue the rabbis whom she claims betrayed her by telling her intimate secrets to her estranged husband in a child-custody battle.
The incident began when Chani Lightman of Long Island sought religious counseling about her troubled marriage from the rabbis in 1995.
After she filed for a civil divorce in February 1996 and sought custody of her four children, the rabbis revealed her secrets to her husband's lawyers, according to her lawsuit.
Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.
"No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case," the judge wrote in a ruling released Thursday of last week.
"Moreover, to do so under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous."
Flaum and Weinberger were said to have provided written statements to the husband's lawyers that Chani Lightman had stopped monthly visits to the mikvah for ritual purification.
She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow contends that the rabbis had a religious obligation to share the information with the divorce court, because it dealt with Chani Lightman's ability to raise the children in accordance with Orthodox law and customs.
While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.
Her husband has refused to give her a get, a religious divorce required under Jewish law.
Chani Lightman, a 38-year-old nurse, told the New York Post that she had been betrayed by the rabbis and estranged from the Orthodox community.
"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."
The Jewish Telegraphic Agency contributed to this report.
___________________________________________________________________________________
2 No. 144
Chani Lightman, Appellant, v. Tzvi Flaum, &c., et al., Respondents.
2001 NY Int. 134
November 27, 2001
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Abe H. Konstam, for appellant.
Franklyn H. Snitow, for respondents.
National Jewish Commission on Law and Public Affairs, et al., amici curiæ.
GRAFFEO, J.:
In this appeal, we must decide whether CPLR 4505 imposes a fiduciary duty of confidentiality upon members of the clergy that subjects them to civil liability for the disclosure of confidential communications. We hold that it does not.
After 15 years of marriage, plaintiff Chani Lightman initiated a divorce proceeding against her husband, Hylton Lightman, in February 1996. She also sought an order granting her temporary custody of the parties' four children. In opposition to plaintiff's application, her husband submitted, under seal, affirmations from two rabbis, apparently intending to show that his wife was jeopardizing the Orthodox Jewish upbringing of the children by not following religious law. Rabbi Tzvi Flaum, who was associated with the synagogue where the Lightmans were congregants, stated that plaintiff had advised him that she had stopped engaging in "religious purification laws" and was "seeing a man in a social setting." Similarly, Rabbi David Weinberger, an acquaintance of the Lightmans, in his affirmation indicated that plaintiff had acknowledged to him that "she freely stopped her religious bathing so [that] she did not have to engage in any sexual relations" with her husband, and he opined that plaintiff no longer wanted "to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well."
As a result of the rabbis' disclosures of those conversations, plaintiff commenced this action against them, asserting causes of action for breach of fiduciary duty in violation of the CPLR 4505 "clergy-penitent privilege," intentional infliction of emotional distress and defamation against Rabbi Weinberger. Prior to answering, defendants moved to dismiss the complaint, contending that a violation of the statutory evidentiary privilege did not give rise to a private right of action, plaintiff's allegations were insufficient to support a cause of action for intentional infliction of emotional distress and the statements of Rabbi Weinberger were protected speech in the nature of an opinion. Plaintiff opposed the motion and defendants countered that dismissal of the breach of fiduciary duty claims was compelled by the First Amendment of the United States Constitution because the disclosures were required under Jewish law.
Supreme Court converted the motion into one for summary judgment and directed the parties to provide further evidence relevant to that determination. Rabbi Flaum submitted two additional affirmations in which he expanded on the nature of his discussions with the Lightmans. He claimed that more than two years earlier Hylton Lightman first revealed marital problems to him. That conversation prompted plaintiff's mother to request that he speak with plaintiff. At the meeting, plaintiff and her mother berated him for discussing the marriage with plaintiff's husband and for giving advice without obtaining plaintiff's version of the situation. He alleged that plaintiff admitted to discontinuing her religious purification rituals and indicated she was socializing with men other than her husband. Rabbi Flaum further contended that these statements were not confidential because plaintiff never requested spiritual guidance and that, pursuant to Jewish law, he was obliged to relay this information to plaintiff's husband in order to prevent him from engaging in conjugal relations with his wife in violation of the Torah, as well as to shield the couple's children from exposure to plaintiff's improper conduct.
Rabbi Weinberger echoed this doctrinal explanation for the disclosures and alleged that he had met jointly, and separately, with the Lightmans. He claimed plaintiff was accompanied by a friend at these meetings on more than one occasion. Expressing surprise that plaintiff would have admitted her failure to follow religious laws of family purity while in the presence of a friend, Weinberger indicated that these revelations led him to believe the discussions were not confidential. Plaintiff disputed defendants' interpretation of religious law, and characterized her interactions with defendants as spiritual counseling received with the expectation that intimate information would remain confidential.
Supreme Court granted partial summary judgment by dismissing plaintiff's defamation claim but ruled that the causes of action for intentional infliction of emotional distress and breach of fiduciary duty were viable. As to the latter, the court concluded that there were issues of fact regarding whether the communications remained confidential despite the presence of third parties during the various conversations and whether the communications were made to defendants in their spiritual capacity. Supreme Court further found that a violation of CPLR 4505 was actionable as a breach of fiduciary duty of confidentiality and that there were no First Amendment implications under the facts presented.
The Appellate Division modified by dismissing the fiduciary duty and emotional distress causes of action. The court determined that plaintiff failed to demonstrate that she had not waived the clergy-penitent privilege due to the presence of third parties during her meetings with each of the defendants. Accordingly, the court declined to address whether plaintiff stated a claim for breach of fiduciary duty.
Two Justices dissented, in part, and would have sustained the causes of action for breach of fiduciary duty, leaving as an issue of fact whether plaintiff waived the clergy- penitent privilege. Finding the fiduciary duty claims actionable, the dissent reasoned that a cause of action for breach of fiduciary duty of confidentiality stems from a breach of CPLR 4505 because claims arising from violations of analogous statutory provisions had been recognized and defendants had not adequately shown they were entitled to First Amendment protection. Plaintiff appealed to this Court as a matter of right, and we now affirm for reasons different from those stated by the Appellate Division.
The common law insulated certain confidential information from disclosure at trial, such as interspousal communications made during the course of a marriage ( see, McCormick on Evidence § 78, at 323-324 [5th ed. 1999]). Eventually, special categories of confidential communications were deemed by statute to be entitled to a privilege against disclosure (see, Prince, Richardson on Evidence § 5-101, at 225 [Farrell 11th ed. 1995]). CPLR article 45 codifies rules of evidence that restrict the admissibility of information obtained in specified confidential contexts, such as that which exists between spouses (CPLR 4502 ), attorney and client (CPLR 4503 ), physician and patient (CPLR 4504 ), psychologist and client (CPLR 4507 ) and social worker and client (CPLR 4508 ). In general, these statutes protect special relationships akin to fiduciary bonds, which operate and flourish "in an atmosphere of transcendent trust and confidence" (Aufrichtig v Lowell, , 85 NY2d 540, 546).
The clergy-penitent privilege was unknown at common law (see, Matter of Keenan v Gigante, , 47 NY2d 160, 166, cert denied 444 US 897).[1] It arose from the Roman Catholic sacrament of Penance, which requires sins to be disclosed to a priest who is prohibited by ecclesiastical law from revealing the substance of those disclosures even when the refusal to disclose results in imprisonment for contempt (see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4505 , at 683). Enacted to respond "to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized" (Matter of Keenan v Gigante, 47 NY2d at 166), the privilege originally applied only to communications with members of the clergy who were enjoined from disclosing the substance of such communications under the rules or practices of their religion (see, former Civil Practice Act § 351).
Recognizing the value of extending the privilege to other religions (see, Second Prelim Report of Advisory Comm on Prac & Pro, 1958 NY Legis Doc No. 13, at 93), the Legislature adopted CPLR 4505 , which applies to confidential communications made by congregants to clerics of all religions (see, People v Carmona, 82 NY2d at 608-609). CPLR 4505 provides that unless "the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed [to] disclose a confession or confidence made to him in his professional character as spiritual advisor." A communication is not privileged merely because it is made to a cleric (see, Matter of Keenan v Gigante, 47 NY2d at 166). Rather, the statute's protection envelops only information imparted "in confidence and for the purpose of obtaining spiritual guidance" (People v Carmona, 82 NY2d at 609).
Here, plaintiff acknowledges that she cannot prevail without proving the existence of a fiduciary relationship with each defendant and the requisite expectation of confidentiality, but argues that she automatically satisfies both elements because the information protected by CPLR 4505 is confidential as a matter of law. Defendants, on the other hand, reject the notion that a rule of evidence can establish an actionable fiduciary duty of confidentiality. They contend that clerics cannot be compared to the secular professionals enumerated in article 45 because those practitioners derive their professional authority from the issuance of licenses. Defendants emphasize that these professionals must conduct themselves in accordance with the rules that regulate their interactions with clients or patients and are subject to disciplinary measures for professional misconduct. Finally, defendants claim that utilizing CPLR 4505 as the fiduciary standard would raise significant constitutional concerns because it would require courts to interpret religious principles and chill defendants' exercise of Jewish beliefs.
We find a distinction between confidential information under the rules and regulations that govern secular professionals and information cloaked by an evidentiary privilege under the CPLR. This difference demonstrates that statutory privileges are not themselves the sources of fiduciary duties but are merely reflections of the public policy of this State to proscribe the introduction into evidence of certain confidential information absent the permission of or waiver by a declarant. For example, in the attorney-client context, CPLR 4503 applies only to "confidential communication[s] made between the attorney or his employee and the client." The Code of Professional Responsibility, however, prohibits the disclosure not only of "confidences," defined as "information protected by the attorney- client privilege," but also of "secrets," described as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client" (Code of Professional Responsibility DR 4-101 [A], [B] [22 NYCRR 1200.19 (A), (B)]). Thus, an attorney's duty of confidentiality is substantially broader than that reflected in CPLR 4503 .
In fact, we have previously explained that a significant purpose of the Code of Professional Responsibility is to ensure "that attorneys remain faithful to the fiduciary duties of loyalty and confidentiality owed by attorneys to their clients" (Kassis v Teacher's Ins. & Annuity Assn., , 93 NY2d 611, 616) as well as the "duty to deal fairly, honestly and with undivided loyalty" (Matter of Cooperman, , 83 NY2d 465, 472; see also, Matter of Russakoff, , 79 NY2d 520, 524 and Greene v Greene, , 47 NY2d 447, 451).
A similar dichotomy between professional confidentiality obligations and evidentiary rules designed to preserve confidentiality exists for physicians and other health care professionals. CPLR 4504 prevents the disclosure of information "acquired in attending a patient in a professional capacity, and which was necessary to enable [the physician or other health care professional] to act in that capacity." Nevertheless, information obtained in a professional capacity but not necessary to enable the physician to fulfill his or her medical role is a protected confidence, the disclosure of which constitutes professional misconduct in the absence of patient consent or legal authorization (see, Education Law § 6530 [23]; see also, 8 NYCRR 29.1 [b] [8]). Thus, although the statutory privileges may in some instances overlap with the applicable fiduciary duties of confidentiality which have been defined elsewhere in the law, those evidentiary rules are not the sources of the underlying duties, and article 45 does not establish the parameters of those fiduciary relationships.
The clergy and the other classes of professionals specified in CPLR article 45 are also fundamentally different with respect to the extent of State regulation of their professional practices. Individuals employed in other fields subject to statutory privileges derive their authority to practice from the State, which conditions the issuance of a license on, among other requirements, the completion of formalized education and/or training (see, Education Law §§ 6524 [2], 6554 [2], 6604 [2], 6905 [2], 7004 [2], 7603 [2], 7704 [2]; 22 NYCRR 520.3, 520.4). Statutes and regulations specifically prohibit the disclosure of confidences and invoke the possibility of sanctions for professional misconduct (see, e.g., Education Law § 6530 [23], supra; 8 NYCRR 29.1 [b] [8], supra; Code of Professional Responsibility DR 1-102 [A] [1] [22 NYCRR 1200.3 (A) (1)]; Code of Professional Responsibility DR 4-101 [A], [B] [22 NYCRR 1200.19 (A), (B)]). In contrast, clerics are free to engage in religious activities without the State's permission, they are not subject to State-dictated educational prerequisites and, significantly, no comprehensive statutory scheme regulates the clergy-congregant spiritual counseling relationship. This explains plaintiff's inability to identify a source of defendants' alleged duty of confidentiality independent of CPLR 4505 .
Defendants and the amici strenuously argue that the imposition of liability without regard to a cleric's religious principles which motivate or compel disclosure would violate the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Despite the inconsistencies in defendants' rationale for revealing plaintiff's communications (as aptly noted by the dissent in the Appellate Division), the prospect of conducting a trial to determine whether a cleric's disclosure is in accord with religious tenets has troubling constitutional implications. To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated.
The United States Constitution protects the right of individuals to "believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs * * * [I]f those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain" (United States v Ballard, 322 US 78, 86-87). As we explained in a different context, "civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct * * * while interfering with the free exercise of the opposing faction's beliefs" (First Presbyt. Church of Schenectady v United Presbyt. Church in the United States of Am., , 62 NY2d 110, 116, cert denied 469 US 1037; see also, Park Slope Jewish Ctr. v Congregation B'Nai Jacob, , 90 NY2d 517, 521; Avitzur v Avitzur, , 58 NY2d 108, 114, cert denied 464 US 817).
Guided by these well-settled principles and in the absence of a statute, regulation or other source delineating the scope and nature of the alleged fiduciary duty, we view the CPLR 4505 privilege in the manner intended by the Legislature -- as a rule of evidence and not as the basis of a private cause of action. Although plaintiff understandably resents the disclosure of intimate information she claims she revealed to defendants in their role as spiritual counselors, we hold that, as a matter of law, CPLR 4505 -- directed at the admissibility of evidence -- does not give rise to a cause of action for breach of a fiduciary duty involving the disclosure of oral communications between a congregant and a cleric. Remittal for factual determinations is thus unnecessary and defendants are entitled to summary judgment dismissing the first and second causes of action.
In light of this conclusion, we need not address plaintiff's remaining contentions, including whether there was an issue of fact concerning her purported waiver of the privilege.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. Opinion by Judge Graffeo. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
Decided November 27, 2001
Chani Lightman, Appellant, v. Tzvi Flaum, &c., et al., Respondents.
2001 NY Int. 134
November 27, 2001
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Abe H. Konstam, for appellant.
Franklyn H. Snitow, for respondents.
National Jewish Commission on Law and Public Affairs, et al., amici curiæ.
GRAFFEO, J.:
In this appeal, we must decide whether CPLR 4505 imposes a fiduciary duty of confidentiality upon members of the clergy that subjects them to civil liability for the disclosure of confidential communications. We hold that it does not.
After 15 years of marriage, plaintiff Chani Lightman initiated a divorce proceeding against her husband, Hylton Lightman, in February 1996. She also sought an order granting her temporary custody of the parties' four children. In opposition to plaintiff's application, her husband submitted, under seal, affirmations from two rabbis, apparently intending to show that his wife was jeopardizing the Orthodox Jewish upbringing of the children by not following religious law. Rabbi Tzvi Flaum, who was associated with the synagogue where the Lightmans were congregants, stated that plaintiff had advised him that she had stopped engaging in "religious purification laws" and was "seeing a man in a social setting." Similarly, Rabbi David Weinberger, an acquaintance of the Lightmans, in his affirmation indicated that plaintiff had acknowledged to him that "she freely stopped her religious bathing so [that] she did not have to engage in any sexual relations" with her husband, and he opined that plaintiff no longer wanted "to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well."
As a result of the rabbis' disclosures of those conversations, plaintiff commenced this action against them, asserting causes of action for breach of fiduciary duty in violation of the CPLR 4505 "clergy-penitent privilege," intentional infliction of emotional distress and defamation against Rabbi Weinberger. Prior to answering, defendants moved to dismiss the complaint, contending that a violation of the statutory evidentiary privilege did not give rise to a private right of action, plaintiff's allegations were insufficient to support a cause of action for intentional infliction of emotional distress and the statements of Rabbi Weinberger were protected speech in the nature of an opinion. Plaintiff opposed the motion and defendants countered that dismissal of the breach of fiduciary duty claims was compelled by the First Amendment of the United States Constitution because the disclosures were required under Jewish law.
Supreme Court converted the motion into one for summary judgment and directed the parties to provide further evidence relevant to that determination. Rabbi Flaum submitted two additional affirmations in which he expanded on the nature of his discussions with the Lightmans. He claimed that more than two years earlier Hylton Lightman first revealed marital problems to him. That conversation prompted plaintiff's mother to request that he speak with plaintiff. At the meeting, plaintiff and her mother berated him for discussing the marriage with plaintiff's husband and for giving advice without obtaining plaintiff's version of the situation. He alleged that plaintiff admitted to discontinuing her religious purification rituals and indicated she was socializing with men other than her husband. Rabbi Flaum further contended that these statements were not confidential because plaintiff never requested spiritual guidance and that, pursuant to Jewish law, he was obliged to relay this information to plaintiff's husband in order to prevent him from engaging in conjugal relations with his wife in violation of the Torah, as well as to shield the couple's children from exposure to plaintiff's improper conduct.
Rabbi Weinberger echoed this doctrinal explanation for the disclosures and alleged that he had met jointly, and separately, with the Lightmans. He claimed plaintiff was accompanied by a friend at these meetings on more than one occasion. Expressing surprise that plaintiff would have admitted her failure to follow religious laws of family purity while in the presence of a friend, Weinberger indicated that these revelations led him to believe the discussions were not confidential. Plaintiff disputed defendants' interpretation of religious law, and characterized her interactions with defendants as spiritual counseling received with the expectation that intimate information would remain confidential.
Supreme Court granted partial summary judgment by dismissing plaintiff's defamation claim but ruled that the causes of action for intentional infliction of emotional distress and breach of fiduciary duty were viable. As to the latter, the court concluded that there were issues of fact regarding whether the communications remained confidential despite the presence of third parties during the various conversations and whether the communications were made to defendants in their spiritual capacity. Supreme Court further found that a violation of CPLR 4505 was actionable as a breach of fiduciary duty of confidentiality and that there were no First Amendment implications under the facts presented.
The Appellate Division modified by dismissing the fiduciary duty and emotional distress causes of action. The court determined that plaintiff failed to demonstrate that she had not waived the clergy-penitent privilege due to the presence of third parties during her meetings with each of the defendants. Accordingly, the court declined to address whether plaintiff stated a claim for breach of fiduciary duty.
Two Justices dissented, in part, and would have sustained the causes of action for breach of fiduciary duty, leaving as an issue of fact whether plaintiff waived the clergy- penitent privilege. Finding the fiduciary duty claims actionable, the dissent reasoned that a cause of action for breach of fiduciary duty of confidentiality stems from a breach of CPLR 4505 because claims arising from violations of analogous statutory provisions had been recognized and defendants had not adequately shown they were entitled to First Amendment protection. Plaintiff appealed to this Court as a matter of right, and we now affirm for reasons different from those stated by the Appellate Division.
The common law insulated certain confidential information from disclosure at trial, such as interspousal communications made during the course of a marriage ( see, McCormick on Evidence § 78, at 323-324 [5th ed. 1999]). Eventually, special categories of confidential communications were deemed by statute to be entitled to a privilege against disclosure (see, Prince, Richardson on Evidence § 5-101, at 225 [Farrell 11th ed. 1995]). CPLR article 45 codifies rules of evidence that restrict the admissibility of information obtained in specified confidential contexts, such as that which exists between spouses (CPLR 4502 ), attorney and client (CPLR 4503 ), physician and patient (CPLR 4504 ), psychologist and client (CPLR 4507 ) and social worker and client (CPLR 4508 ). In general, these statutes protect special relationships akin to fiduciary bonds, which operate and flourish "in an atmosphere of transcendent trust and confidence" (Aufrichtig v Lowell, , 85 NY2d 540, 546).
The clergy-penitent privilege was unknown at common law (see, Matter of Keenan v Gigante, , 47 NY2d 160, 166, cert denied 444 US 897).[1] It arose from the Roman Catholic sacrament of Penance, which requires sins to be disclosed to a priest who is prohibited by ecclesiastical law from revealing the substance of those disclosures even when the refusal to disclose results in imprisonment for contempt (see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4505 , at 683). Enacted to respond "to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized" (Matter of Keenan v Gigante, 47 NY2d at 166), the privilege originally applied only to communications with members of the clergy who were enjoined from disclosing the substance of such communications under the rules or practices of their religion (see, former Civil Practice Act § 351).
Recognizing the value of extending the privilege to other religions (see, Second Prelim Report of Advisory Comm on Prac & Pro, 1958 NY Legis Doc No. 13, at 93), the Legislature adopted CPLR 4505 , which applies to confidential communications made by congregants to clerics of all religions (see, People v Carmona, 82 NY2d at 608-609). CPLR 4505 provides that unless "the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed [to] disclose a confession or confidence made to him in his professional character as spiritual advisor." A communication is not privileged merely because it is made to a cleric (see, Matter of Keenan v Gigante, 47 NY2d at 166). Rather, the statute's protection envelops only information imparted "in confidence and for the purpose of obtaining spiritual guidance" (People v Carmona, 82 NY2d at 609).
Here, plaintiff acknowledges that she cannot prevail without proving the existence of a fiduciary relationship with each defendant and the requisite expectation of confidentiality, but argues that she automatically satisfies both elements because the information protected by CPLR 4505 is confidential as a matter of law. Defendants, on the other hand, reject the notion that a rule of evidence can establish an actionable fiduciary duty of confidentiality. They contend that clerics cannot be compared to the secular professionals enumerated in article 45 because those practitioners derive their professional authority from the issuance of licenses. Defendants emphasize that these professionals must conduct themselves in accordance with the rules that regulate their interactions with clients or patients and are subject to disciplinary measures for professional misconduct. Finally, defendants claim that utilizing CPLR 4505 as the fiduciary standard would raise significant constitutional concerns because it would require courts to interpret religious principles and chill defendants' exercise of Jewish beliefs.
We find a distinction between confidential information under the rules and regulations that govern secular professionals and information cloaked by an evidentiary privilege under the CPLR. This difference demonstrates that statutory privileges are not themselves the sources of fiduciary duties but are merely reflections of the public policy of this State to proscribe the introduction into evidence of certain confidential information absent the permission of or waiver by a declarant. For example, in the attorney-client context, CPLR 4503 applies only to "confidential communication[s] made between the attorney or his employee and the client." The Code of Professional Responsibility, however, prohibits the disclosure not only of "confidences," defined as "information protected by the attorney- client privilege," but also of "secrets," described as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client" (Code of Professional Responsibility DR 4-101 [A], [B] [22 NYCRR 1200.19 (A), (B)]). Thus, an attorney's duty of confidentiality is substantially broader than that reflected in CPLR 4503 .
In fact, we have previously explained that a significant purpose of the Code of Professional Responsibility is to ensure "that attorneys remain faithful to the fiduciary duties of loyalty and confidentiality owed by attorneys to their clients" (Kassis v Teacher's Ins. & Annuity Assn., , 93 NY2d 611, 616) as well as the "duty to deal fairly, honestly and with undivided loyalty" (Matter of Cooperman, , 83 NY2d 465, 472; see also, Matter of Russakoff, , 79 NY2d 520, 524 and Greene v Greene, , 47 NY2d 447, 451).
A similar dichotomy between professional confidentiality obligations and evidentiary rules designed to preserve confidentiality exists for physicians and other health care professionals. CPLR 4504 prevents the disclosure of information "acquired in attending a patient in a professional capacity, and which was necessary to enable [the physician or other health care professional] to act in that capacity." Nevertheless, information obtained in a professional capacity but not necessary to enable the physician to fulfill his or her medical role is a protected confidence, the disclosure of which constitutes professional misconduct in the absence of patient consent or legal authorization (see, Education Law § 6530 [23]; see also, 8 NYCRR 29.1 [b] [8]). Thus, although the statutory privileges may in some instances overlap with the applicable fiduciary duties of confidentiality which have been defined elsewhere in the law, those evidentiary rules are not the sources of the underlying duties, and article 45 does not establish the parameters of those fiduciary relationships.
The clergy and the other classes of professionals specified in CPLR article 45 are also fundamentally different with respect to the extent of State regulation of their professional practices. Individuals employed in other fields subject to statutory privileges derive their authority to practice from the State, which conditions the issuance of a license on, among other requirements, the completion of formalized education and/or training (see, Education Law §§ 6524 [2], 6554 [2], 6604 [2], 6905 [2], 7004 [2], 7603 [2], 7704 [2]; 22 NYCRR 520.3, 520.4). Statutes and regulations specifically prohibit the disclosure of confidences and invoke the possibility of sanctions for professional misconduct (see, e.g., Education Law § 6530 [23], supra; 8 NYCRR 29.1 [b] [8], supra; Code of Professional Responsibility DR 1-102 [A] [1] [22 NYCRR 1200.3 (A) (1)]; Code of Professional Responsibility DR 4-101 [A], [B] [22 NYCRR 1200.19 (A), (B)]). In contrast, clerics are free to engage in religious activities without the State's permission, they are not subject to State-dictated educational prerequisites and, significantly, no comprehensive statutory scheme regulates the clergy-congregant spiritual counseling relationship. This explains plaintiff's inability to identify a source of defendants' alleged duty of confidentiality independent of CPLR 4505 .
Defendants and the amici strenuously argue that the imposition of liability without regard to a cleric's religious principles which motivate or compel disclosure would violate the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Despite the inconsistencies in defendants' rationale for revealing plaintiff's communications (as aptly noted by the dissent in the Appellate Division), the prospect of conducting a trial to determine whether a cleric's disclosure is in accord with religious tenets has troubling constitutional implications. To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated.
The United States Constitution protects the right of individuals to "believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs * * * [I]f those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain" (United States v Ballard, 322 US 78, 86-87). As we explained in a different context, "civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct * * * while interfering with the free exercise of the opposing faction's beliefs" (First Presbyt. Church of Schenectady v United Presbyt. Church in the United States of Am., , 62 NY2d 110, 116, cert denied 469 US 1037; see also, Park Slope Jewish Ctr. v Congregation B'Nai Jacob, , 90 NY2d 517, 521; Avitzur v Avitzur, , 58 NY2d 108, 114, cert denied 464 US 817).
Guided by these well-settled principles and in the absence of a statute, regulation or other source delineating the scope and nature of the alleged fiduciary duty, we view the CPLR 4505 privilege in the manner intended by the Legislature -- as a rule of evidence and not as the basis of a private cause of action. Although plaintiff understandably resents the disclosure of intimate information she claims she revealed to defendants in their role as spiritual counselors, we hold that, as a matter of law, CPLR 4505 -- directed at the admissibility of evidence -- does not give rise to a cause of action for breach of a fiduciary duty involving the disclosure of oral communications between a congregant and a cleric. Remittal for factual determinations is thus unnecessary and defendants are entitled to summary judgment dismissing the first and second causes of action.
In light of this conclusion, we need not address plaintiff's remaining contentions, including whether there was an issue of fact concerning her purported waiver of the privilege.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. Opinion by Judge Graffeo. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
Decided November 27, 2001
___________________________________________________________________________________
Touro College - Department of Institutional Advancement
Touro College - February 21, 2006
http://www.touro.edu/general/news/PR-LCWnews.asp
For Immediate Release
Contact: David Moss
212-463-0400 ext. 430
NEW FACILITY AND NEW LEADERSHIP FOR LANDER COLLEGE FOR WOMEN
February 21, 2006: Dr. Bernard Lander, the Founder and President of Touro College, has announced that Lander College for Women will be moving into a new, modern and world-class facility. Located at 60th Street between West End and Amsterdam Avenues in Manhattan, the new building is currently being constructed. It is anticipated that the move from the school's current location at 30th Street and Lexington Avenue will be completed in time for the fall 2006 semester. The new facility will provide an ideal setting for the outstanding educational experience provided to students at Lander College for Women.
Dr. Lander and the leadership of Touro College recognize that capital improvements alone are not sufficient to ensure that the students of Lander College for Women receive the quality experience and education that they deserve and that the College is committed to providing.
Marian Stoltz-Loike, Ph.D., has been named Dean of the Lander College for Women, a role she has filled since August 2005. According to Dr. Lander, "Dean Stoltz-Loike was invited to lead Lander College for Women during this exciting and critical time in its development. Her vast experience and impressive skills have already had a profound impact on the College, and we are excited about the dynamic leadership role she will continue to play."
Dean Stoltz-Loike is the beneficiary of an outstanding Judaic and secular education, and she models the ability to achieve in the professional world without any diminution in commitment to Jewish learning and living.
Dean Stoltz-Loike received her Ph.D. in Psychology from New York University following her undergraduate training at Harvard University. She is an internationally known corporate consultant with expertise in cross-cultural communities, generational diversity and aging workforce issues. Her work for a variety of Fortune 100 companies, including GE, Lehman Brothers, American Express and McGraw-Hill, has taken her to London, Amsterdam, Hong Kong, New Delhi, Mexico City and all around the United States. She has been a frequent speaker at leading industry conferences and seminars, including the Conference Board and the Society of Human Resources Managers, and has been quoted in publications including Business Week and Newsday. She has authored two books, Dual Career Couples and Managing a Global Workforce, and serves on the Board of Directors of the Orthodox Union and on the Board of Governors of the American Jewish Committee.
Dean Stoltz-Loike has a broad and compelling vision for the future of the Lander College for Women. She is committed to raising the level of scholarship at the school and to more effectively utilizing the significant talent at the College. The College, under her leadership, will improve its ability to produce graduates who are able to contribute and lead in religious and secular environments and who are able to compete for the most challenging and outstanding educational and professional opportunities. Most importantly, she is committed to producing graduates who have a passion for Jewish life and learning and whose commitments to Jewish values will be deep and uncompromising.
To further guarantee that the new facility is filled with the neshama, the soul that is Lander College for Women's hallmark and continuing aspiration, Dr. Lander has also announced that the renowned Rav, Rabbi Tzvi Flaum, has been appointed as Mashgiach Ruchani and Professor of Judaic Studies.
Rabbi Flaum has been the Rav of Congregation Kneseth Israel (the "White Shul") in Far Rockaway for more than ten years, and he was previously the Rabbi of the Torah Center of Hillcrest in Queens. Rabbi Flaum received both yoreh yoreh and yadin yadin semichot, and he served as Mashgiach Ruchani and Professor of Judaic Studies at Stern College for Women for many years. Rabbi Flaum has developed a reputation as one of our generation's leading experts in Jewish Medical Ethics, and is a member of the Medical Ethics Commission of the Rabbinical Council of America, and the Boards of Governors of the Association of Orthodox Jewish Scientists and the Orthodox Union. He is chairman of the Vaad Harabonim of Far Rockaway and Lawrence, and past president of the Vaad Harabonim of Queens.
Dean Stoltz-Loike remarks, "The students of Lander College for Women will benefit greatly from Rabbi Flaum's wisdom and experience. He is a master educator, and he looks forward to advancing the Torah learning and knowledge of his students. He is committed to promoting the primacy of Jewish values, life and learning at the College, and to helping students recognize the critical importance of Torah and Yiras Shamayim to the successful pursuit of secular studies and a professional career." He will also be available as a Posek and Moreh Derech for the students, and intends to play a significant role in helping students find their life mates.
Students, faculty and administration are all excited about the new facility being constructed for Lander College for Women. The premiere academic facility will consist of five floors totaling 48,000 square feet and will include technological enhancements of very superior quality.
The 4,000 square foot library will accommodate a very substantial volume collection as well as extensive computer access to Touro's leading digital library and online research capabilities. The excellent design of the facility's chemistry and biology laboratories have already been used by medical schools and schools of health science as a model for the development of their own science laboratories. Each of the seventeen classrooms, and the computer science laboratories, will be developed as smart classrooms incorporating full audio visual capabilities. The entire facility will support wireless internet access as well.
The 4,730 square foot gymnasium will be equipped for basketball, volleyball, and other university level sports, and will be convertible for use to support other events including lectures, large educational seminars, and formal presentations. In addition to the gymnasium, a 1,700 square foot health club facility will provide additional recreation opportunities. Other important spaces will include a cafeteria, an art studio, executive and administrative offices, student lounges, and a 3,800 square foot outdoor terrace which will be available for student events and relaxation.
The new facility, just off Amsterdam Avenue, will be situated in the same Upper West Side community as the Lander College for Women dormitory, a neighborhood consonant with the school's culture and philosophy. The College will be located two blocks south of Lincoln Center, one block west of the Fordham University School of Law, two blocks north of the Time Warner Center at Columbus Circle, and two blocks east of the new parks being developed along the Hudson River.
Lander College for Women, with its new facility and under the direction of Dean Stoltz-Loike and other outstanding faculty and administration, will improve its ability to prepare outstanding young Jewish women for successful careers and lives.
For more information about Lander College for Women, please contact Dean Marian Stoltz-Loike at (212) 213-2230, ext. 109, or via e-mail at mstoltzloike@touro.edu. For more information about the College's new facility, please contact David A. Moss, Touro College's Vice President for Institutional Advancement, at (212) 463-0400, ext. 430, or via e-mail at dmoss@touro.edu.
Touro College - February 21, 2006
http://www.touro.edu/general/news/PR-LCWnews.asp
For Immediate Release
Contact: David Moss
212-463-0400 ext. 430
NEW FACILITY AND NEW LEADERSHIP FOR LANDER COLLEGE FOR WOMEN
February 21, 2006: Dr. Bernard Lander, the Founder and President of Touro College, has announced that Lander College for Women will be moving into a new, modern and world-class facility. Located at 60th Street between West End and Amsterdam Avenues in Manhattan, the new building is currently being constructed. It is anticipated that the move from the school's current location at 30th Street and Lexington Avenue will be completed in time for the fall 2006 semester. The new facility will provide an ideal setting for the outstanding educational experience provided to students at Lander College for Women.
Dr. Lander and the leadership of Touro College recognize that capital improvements alone are not sufficient to ensure that the students of Lander College for Women receive the quality experience and education that they deserve and that the College is committed to providing.
Marian Stoltz-Loike, Ph.D., has been named Dean of the Lander College for Women, a role she has filled since August 2005. According to Dr. Lander, "Dean Stoltz-Loike was invited to lead Lander College for Women during this exciting and critical time in its development. Her vast experience and impressive skills have already had a profound impact on the College, and we are excited about the dynamic leadership role she will continue to play."
Dean Stoltz-Loike is the beneficiary of an outstanding Judaic and secular education, and she models the ability to achieve in the professional world without any diminution in commitment to Jewish learning and living.
Dean Stoltz-Loike received her Ph.D. in Psychology from New York University following her undergraduate training at Harvard University. She is an internationally known corporate consultant with expertise in cross-cultural communities, generational diversity and aging workforce issues. Her work for a variety of Fortune 100 companies, including GE, Lehman Brothers, American Express and McGraw-Hill, has taken her to London, Amsterdam, Hong Kong, New Delhi, Mexico City and all around the United States. She has been a frequent speaker at leading industry conferences and seminars, including the Conference Board and the Society of Human Resources Managers, and has been quoted in publications including Business Week and Newsday. She has authored two books, Dual Career Couples and Managing a Global Workforce, and serves on the Board of Directors of the Orthodox Union and on the Board of Governors of the American Jewish Committee.
Dean Stoltz-Loike has a broad and compelling vision for the future of the Lander College for Women. She is committed to raising the level of scholarship at the school and to more effectively utilizing the significant talent at the College. The College, under her leadership, will improve its ability to produce graduates who are able to contribute and lead in religious and secular environments and who are able to compete for the most challenging and outstanding educational and professional opportunities. Most importantly, she is committed to producing graduates who have a passion for Jewish life and learning and whose commitments to Jewish values will be deep and uncompromising.
To further guarantee that the new facility is filled with the neshama, the soul that is Lander College for Women's hallmark and continuing aspiration, Dr. Lander has also announced that the renowned Rav, Rabbi Tzvi Flaum, has been appointed as Mashgiach Ruchani and Professor of Judaic Studies.
Rabbi Flaum has been the Rav of Congregation Kneseth Israel (the "White Shul") in Far Rockaway for more than ten years, and he was previously the Rabbi of the Torah Center of Hillcrest in Queens. Rabbi Flaum received both yoreh yoreh and yadin yadin semichot, and he served as Mashgiach Ruchani and Professor of Judaic Studies at Stern College for Women for many years. Rabbi Flaum has developed a reputation as one of our generation's leading experts in Jewish Medical Ethics, and is a member of the Medical Ethics Commission of the Rabbinical Council of America, and the Boards of Governors of the Association of Orthodox Jewish Scientists and the Orthodox Union. He is chairman of the Vaad Harabonim of Far Rockaway and Lawrence, and past president of the Vaad Harabonim of Queens.
Dean Stoltz-Loike remarks, "The students of Lander College for Women will benefit greatly from Rabbi Flaum's wisdom and experience. He is a master educator, and he looks forward to advancing the Torah learning and knowledge of his students. He is committed to promoting the primacy of Jewish values, life and learning at the College, and to helping students recognize the critical importance of Torah and Yiras Shamayim to the successful pursuit of secular studies and a professional career." He will also be available as a Posek and Moreh Derech for the students, and intends to play a significant role in helping students find their life mates.
Students, faculty and administration are all excited about the new facility being constructed for Lander College for Women. The premiere academic facility will consist of five floors totaling 48,000 square feet and will include technological enhancements of very superior quality.
The 4,000 square foot library will accommodate a very substantial volume collection as well as extensive computer access to Touro's leading digital library and online research capabilities. The excellent design of the facility's chemistry and biology laboratories have already been used by medical schools and schools of health science as a model for the development of their own science laboratories. Each of the seventeen classrooms, and the computer science laboratories, will be developed as smart classrooms incorporating full audio visual capabilities. The entire facility will support wireless internet access as well.
The 4,730 square foot gymnasium will be equipped for basketball, volleyball, and other university level sports, and will be convertible for use to support other events including lectures, large educational seminars, and formal presentations. In addition to the gymnasium, a 1,700 square foot health club facility will provide additional recreation opportunities. Other important spaces will include a cafeteria, an art studio, executive and administrative offices, student lounges, and a 3,800 square foot outdoor terrace which will be available for student events and relaxation.
The new facility, just off Amsterdam Avenue, will be situated in the same Upper West Side community as the Lander College for Women dormitory, a neighborhood consonant with the school's culture and philosophy. The College will be located two blocks south of Lincoln Center, one block west of the Fordham University School of Law, two blocks north of the Time Warner Center at Columbus Circle, and two blocks east of the new parks being developed along the Hudson River.
Lander College for Women, with its new facility and under the direction of Dean Stoltz-Loike and other outstanding faculty and administration, will improve its ability to prepare outstanding young Jewish women for successful careers and lives.
For more information about Lander College for Women, please contact Dean Marian Stoltz-Loike at (212) 213-2230, ext. 109, or via e-mail at mstoltzloike@touro.edu. For more information about the College's new facility, please contact David A. Moss, Touro College's Vice President for Institutional Advancement, at (212) 463-0400, ext. 430, or via e-mail at dmoss@touro.edu.
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For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml . If you wish to use copyrighted material from this update for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
Some of the information on The Awareness Center's web pages may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc.
We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml . If you wish to use copyrighted material from this update for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.
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