In New York the litigation has involved the alleged sexual abuse of minors. (See, e.g., Jones v. Trane, 153 Misc.2d 822 [Sup Ct, Onondaga County 1992].)

See, e.g., F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997); Sanders v. Casa View Baptist Church, 898 F. Supp. 1169 (ND Tex 1995); Moses v. Diocese of Colo., 863 P.2d 310, 314 (Colo 1993); DeStefano v. Grabrian, 763 P.2d 275 (Colo 1988).

Amato v. Greenquist, 287 Ill. App.3d 921, 679 N.E.2d 446 (1997); Dausch v. Rykse, 52 F.3d 1425 (7th Cir 1994); Schmidt v. Bishop, 779 F. Supp. 321 (SD N Y 1991); H.R.B. v. J.L.G., 913 S.W.2d 92 (ED Mo 1995).

Plaintiff has asserted claims sounding in negligence, professional negligence, negligent hiring, supervision and retention, breach of fiduciary duty, negligent infliction of emotional distress, intentional infliction of emotional distress and battery. With the exception of the claim of clergy malpractice, a cause of action not recognized in New York (see, Schmidt v. Bishop, 779 F. Supp. 321, 324 [SD N Y 1991], supra, Joshua S. v. Casey, 206 A.D.2d 839 [4th Dept 1994]), the remaining causes of action either depend for their vitality on the claim of breach of fiduciary duty, or with respect to the alleged intentional torts, are time barred and lack factual support.

Beginning in February of 1989, the defendant would visit her three and four times a week and "while sitting next to [her] on the couch would hold [her] cramped and contorted fingers and tell [her] how he spoke to God and how as God's emissary he would see to it that the disease would go into remission." Indeed, at one point during 1989, her physician informed her that the disease was indeed in remission and she "thanked God a million times for sending [her] this gentle savior."

Indeed, the spiritual and supernatural aspects of the relationship dominated plaintiff's narrative. Thus, defendant allegedly told plaintiff that he believed that "water was imbued with a mystical power to cleanse and heal * * * [and that] by standing under the water's spray, the two of [them] would be paying homage to the glory and goodness of God who, in return, would absolve [them] of sin." Plaintiff, allegedly at the defendant's behest, kept a towel in her night table which the defendant would use to wipe his semen from her body. "The towel symbolized his everlasting presence. The semen represented an impenetrable line of defense that would ward off fear, loneliness and disease. As long as [she] had the towel, [she] had the means to remain healthy and loved. Any onslaught by negative or destructive forces would be doomed to fail in the presence of the towel a/k/a the defendant."

The First Amendment prohibits any "law respecting the establishment of religion, or prohibiting the free exercise thereof." (US Const 1st Amend.) It "embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." (Cantwell v. Connecticut, 310 U.S. 296, 303-304 [1940].) Certainly, intentional, criminally offensive conduct is not insulated from prosecution. (See, e.g., Joshua S. v. Casey, 206 A.D.2d 839 [4th Dept 1994]; Kenneth R. v. Roman Catholic Diocese, 229 A.D.2d 159 [2d Dept 1997].)

"Historically, fiduciary relationships include: trustee to beneficiary; guardian to ward; agent to principal; attorney to client; executor to legatees or beneficiaries; partner to partner; corporate directors or officers to the corporation; majority shareholders to other shareholders; and bailor to bailee." (Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denv U L Rev 1, 40 [1996].)

The fiduciary bears the burden of showing the fairness of the disputed transaction. The fiduciary is obligated to make full disclosure. The fiduciary may not be able to raise the defense of statute of Frauds, or consent. The entrusting party may not bear the entire burden of discovery of the fraud. Moreover, the transaction must, regardless of consent, be deemed reasonable and be undertaken in good faith when judged by objective standards. (Villiers, op. cit., at 39, n 255.)

In Penato v. George ( 52 A.D.2d 939, 942 [2d Dept 1976]) the Court opined that "a fiduciary relationship is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another * * * the relationship exists in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in, and relies upon, another * * * Such a relationship might be found to exist, in appropriate circumstances, between close friends * * * or even where confidence is based upon prior business dealings".

These elements were derived through a careful review of the existing case law and an astute application of the philosophical and pragmatic aspects of this area of the law. (Scallen, Promises Broken vs. Promises Betrayed: Metaphor Analogy, and the New Fiduciary Principle, 1993 U Ill L Rev 897, 922 [1993].)

(See, Avitzur v. Avitzur, 58 N.Y.2d 108 [1983].) In Avitzur, a four-to-three decision, the majority upheld the terms of a Ketubah, a Jewish religious marriage contract, finding neutral facts that evidenced the agreement between the parties, to wit, "[D]efendant promised that he would, at plaintiff's request, appear before the [rabbinical tribunal] for the purpose of allowing that tribunal to advise and counsel the parties concerning their marriage" which promise constituted nothing more than a "civil contract to submit a dispute to a nonjudicial forum". (Supra, at 113, 114.) However, the caution of the dissent, which did not find the contract susceptible to so neutral an interpretation was well taken. (See also, Park Slope Jewish Ctr. v. Congregation B'Nai Jacob, 90 N.Y.2d 517 [1997]; Park Slope Jewish Ctr. v. Stern, 128 Misc.2d 909 [Sup Ct, Kings County 1985], mod 128 A.D.2d 847 [2d Dept 1987].)

"The existence of a fiduciary relationship is a question of fact for the jury." (Moses v. Diocese of Colo., 863 P.2d 310, 322 [Colo 1993], supra; see also, Matter of Antoinette, 238 A.D.2d 762 [3d Dept 1997].)

Plaintiff's account of the relationship when considered without reference to her religious beliefs describes the development of an intimate personal relationship based upon the fact that she was seriously ill, lonely and isolated and needed a sympathetic ear. She found a willing and sympathetic friend and companion in defendant who, according to her narrative, was able to use this situation to his advantage and transform the relationship into a sexual one.
This neutered account does not supply the facts necessary to support the existence of a fiduciary relationship because the most important element defining the fiduciary relationship, and distinguishing it from a merely confidential relationship — the inability of the weaker partner to resist the manipulation of the stronger partner — is missing from the neutered account. This element is present only in the religious account of their relationship in statements such as those pertaining to her belief that she would lose her lifeline to continued health if she resisted defendant's advances. (Villiers, op. cit., at 41, nn 263, 264.)

"In 1935, New York adopted what has become known as a heart balm statute [Civil Rights Law §§ 80-a — 84] which abolished all causes of action * * * 'based upon alleged alienation of affections, criminal conversation seduction and breach of contract to marry'" (Gaden v. Gaden, 29 N.Y.2d 80, 84 [1971]). The tort of seduction along with other causes of action for alienation of affection invited "'grave abuses * * * and in many cases * * * resulted in the perpetration of frauds'". (Supra, at 85 [1971].) The same abuses could attach to a cause of action for breach of fiduciary duty, under our facts, unless care is taken to insure that the duty is imposed only upon clear and unequivocal proof of the existence of a fiduciary relationship.