John S. Zumpano,
Appellant,
v.
Father James F. Quinn, &c.,
et al.,
Respondents.
Estate of Brendan Boyle, et al.,
Appellants,
v.
James Smith, &c., et al.,
Defendants,
Otto Garcia, &c., et al.,
Respondents.
2006 NY Int. 20
CIPARICK
In recent years, countless priests have been accused of
impermissibly touching and sexually exploiting young people
entrusted to their care, resulting in a plethora of claims
seeking compensation for the injuries caused by these deplorable
acts. Regrettably, many of these claims are time-barred, and
Zumpano v Quinn
Zumpano commenced this action in 2003 against defendant
Father Quinn, as well as both the Bishop and Catholic Diocese of
Syracuse, alleging an ongoing abusive relationship beginning in
1963 -- when he was 13 years old -- and continuing until 1970.
The complaint, brought 33 years later, alleges causes of action
for sexual abuse, battery, breach of fiduciary duty and negligent
retention and/or supervision.
Defendants moved to dismiss the complaint under CPLR 3211 (a)(5), alleging that Zumpano's claims were barred by the
appropriate statutes of limitations. In response, Zumpano argued
that the statute of limitations should be tolled by CPLR 208
because he suffered from a mental disability created by
Estate of Boyle v Smith
Forty-two plaintiffs instituted this action in October
2002 -- likewise for clergy sexual abuse -- against 13 individual
priests, a Monsignor and both the Bishop and the Roman Catholic
Diocese of Brooklyn. The complaint alleges that each plaintiff
was the victim of at least one sexually abusive act by a defendant
priest. Most of the acts occurred while plaintiffs were minor
children, between 1960 and 1985.[1]
All plaintiffs apparently
reached adulthood by 1990.
Plaintiffs asserted several causes of action, including
intentional torts of sexual abuse and battery, and negligence
causes of action such as failure to supervise, failure to warn and
Equitable Estoppel
Although sometimes imposing hardship on a plaintiff with
a meritorious claim, statutes of limitation "reflect the
legislative judgment that individuals should be protected from
stale claims" ( McCarthy v Volkswagen of Am., Inc., , 55 NY2d 543,
548 [1982]). They cannot be deemed arbitrary or unreasonable
solely on the basis of a harsh effect.
The doctrine of equitable estoppel applies where it
would be unjust to allow a defendant to assert a statute of
limitations defense. "Our courts have long had the power, both at
law and equity, to bar the assertion of the affirmative defense of
the Statute of Limitations where it is the defendant's affirmative
wrongdoing . . . which produced the long delay between the accrual
of the cause of action and the institution of the legal
proceeding" ( General Stencils, Inc. v Chiappa, , 18 NY2d 125, 128
[1966]). Thus, this Court has held that equitable estoppel will
apply "where plaintiff was induced by fraud, misrepresentations or
deception to refrain from filing a timely action" ( Simcuski v
Fiduciary Relationship
As a separate basis for equitable estoppel, the Boyle
plaintiffs argue that defendants breached a fiduciary duty owed to
them by concealing their own actions in covering up the abuse.[2]
"Where concealment without actual misrepresentation is claimed to
have prevented a plaintiff from commencing a timely action, the
plaintiff must demonstrate a fiduciary relationship . . . which
gave the defendant an obligation to inform him or her of facts
underlying the claim" ( Gleason v Spota, 194 AD2d 764, 765 [2d Dept
1993]). We recently left open the question whether a fiduciary
Insanity Toll
Zumpano alone argues that he suffers from a mental
disability as a direct result of defendants' abuse and that he was
consequently rendered incapable of protecting his legal rights.
He no longer argues that CPLR 208 tolls the statute of
limitations,[3]
but contends that defendants should be equitably
estopped from asserting the statute of limitations since their
misconduct caused his insanity. This argument also lacks merit as
he fails to establish a continuing disability. The record
Estate of Boyle v Smith No. 2
G.B. Smith, J. (dissenting in part):
The complaint alleges facts that arguably could result in the defendants being equitably estopped from asserting the bar of the statute of limitations. I conclude, however, that those allegations are not sufficiently specific to preclude the statute of limitations defense here. Thus, I join the disposition to the extent that the present complaint is dismissed. I would permit the plaintiffs to replead their claims.
On October 8, 2002, forty-two plaintiffs filed a
complaint against thirteen priests, a monsignor, a bishop and the
Roman Catholic Diocese of Brooklyn alleging sexual abuse. The
plaintiffs attended religious services at parishes in Queens and
Brooklyn, New York in the late 1960s, 1970s, and the early 1980s.
The abuse is alleged to have occurred in various locations in and
around the State of New York. The complaint makes a number of
tort claims, including sexual abuse and battery against both boys
and girls, intentional infliction of emotional distress, failure
to remove, failure to supervise, failure to investigate, failure
to warn, failure to provide a safe environment, and breach of
fiduciary duty. On December 9, 2002, plaintiffs filed an amended
In order to prevent the plaintiffs from publicizing the abuse, the plaintiffs allege that the defendants "engaged in a covert policy and practice to conceal the problem of the sexual abuse by parish clergy," "engaged in the routine practice of transferring abusive priests to new parishes," made secret payments to victims in return for the victims' silence, maintained secret church accounts to make such payments, intentionally failed to investigate complaints of sexual abuse by defendant priests and others, did not attempt to ascertain if there were other victims of a particular offending priest once they received information that he had in fact sexually abused a child and intentionally failed to warn plaintiffs, their parents or other potential victims or parishioner parents of the danger posed by a known sexually abusive priest."
All plaintiffs were adults by 1990. They allege that defendants are equitably estopped from raising the statute of limitations defense because of their fraud, misrepresentation, and concealment.
On November 18, 2002, defendants filed a motion to
dismiss the complaint. Plaintiffs filed a memorandum of law in
On April 11, 2003, Supreme Court, Queens County granted the motion and determined:
Inasmuch as all of the plaintiffs had reached the age of majority by 1990, they do not dispute that the Statute of Limitations for all the claims asserted herein expired prior to the commencement of this action ( see CPLR 208 , 213, 214, and 215[c]).
Inasmuch as the plaintiffs were the objects of the sexual abuse alleged herein, and they were aware of what was happening to them when the incidents occurred, they clearly possessed personal knowledge of the facts giving rise to their intentional tort claims when those claims accrued, as well as sufficient time to ascertain the facts alleged in relation to their breach of fiduciary duty and negligence claims prior to the running of the limitations period (citation omitted).
On February 7, 2005, Appellate Division, Second Department, affirmed the decision of the trial court and wrote:
A defendant may be estopped from pleading the statute of limitations as a defense where, by fraud, mis- representation, or deception, he or she has induced a plaintiff to refrain from filing a timely action (citations
omitted). However, due diligence on the part of a plaintiff in bringing the action is an essential element of equitable estoppel (citation omitted). If a plaintiff possesses sufficient knowledge of the possible existence of a claim, he or she is under a duty to make inquiry and ascertain all the relevant facts before the statute of limitations expires (citations omitted). Here, the plaintiffs possessed personal knowledge of the facts underlying their intentional tort claims from the time of the offenses, and they also knew that the priests were employed by the Diocese. Despite this knowledge, the plaintiffs did not pursue their claims at an earlier time. Moreover, even assuming that the plaintiffs alleged sufficient facts to establish a fiduciary relationship between themselves and the Diocesan defendants, equitable estoppel is not applicable on this basis. As all of the plaintiffs reached the age of majority by 1990, their allegations failed to establish that they brought this action within a reasonable time after they became adults when they were no longer subject to the supervision and influence of those defendants (citations omitted).
On June 16, 2005, the Court of Appeals granted leave to appeal.
Arguments of the Parties
Plaintiffs do not argue that the statute was tolled
pursuant to the exceptions in CPLR 208 , 213, 214 or 215[c].
Rather, they maintain that defendants are equitably estopped from
asserting the defense of the statute of limitations because
defendants committed fraud, misrepresentation, and concealment
which prevented plaintiffs from filing complaints against
Plaintiffs also allege that the defendants stood in a fiduciary relationship to the plaintiffs and, thus, were responsible for ensuring a safe environment for religious instruction. Plaintiffs allege that this is an independent basis for pleading equitable estoppel and that because of defendants' breach of fiduciary duty, there was no due diligence requirement in pursuing legal claims.
Defendants argue that plaintiffs' failure to comply with
the statute of limitations is fatal to their lawsuit. Defendants
argue that the courts have consistently adhered to statutes of
limitation, and this case does not present facts to toll those
statutes. According to defendants, plaintiffs cannot prevail on a
claim of equitable estoppel because they have failed to
demonstrate that the plaintiffs made any representations which
they relied on to their detriment. Plaintiffs, they argue, did
The motion court granted summary judgment to defendants pursuant to CPLR 3211 [a][5]. The motions were granted based upon a violation of the statute of limitations ( see CPLR 3211 [5]). In a CPLR 3211 motion, the facts in the pleadings must be construed in favor of the non-movant ( see Leon v Martinez, , 84 NY2d 83, 87-88 [1994][a court must accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory]).
As a rule, the statute of limitations begins to run at the date of the injury ( see Aetna Life and Cas. Co. v Nelson, , 67 NY2d 169, 175 [1986][The Statute of Limitations begins to run once a cause of action accrues (CPLR 203 [a]), that is, when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court]; see also Ackerman v Waterhouse, , 84 NY2d 535, 541 [1994]).
In Boyle, plaintiffs allege abuse from 1960 until 1985.
There is no question that the Boyle plaintiffs knew that they had been sexually abused at the time of the incidents and that they knew the perpetrators. Further, each reached adulthood more than ten years prior to the filing of the action. The Boyle plaintiffs do not claim a disability which would have interfered with the filing of the action; rather, they claim that defendants should be equitably estopped from asserting a statute of limitations defense because defendants interfered with plaintiffs filing their lawsuit by a campaign of deception, misrepresentation, and facilitation of the abuse by transferring and re-assigning priests who committed abuse. Certainly, if such a campaign did in fact occur, there was an attempt to conceal wrongdoing which could have prevented plaintiffs from filing their lawsuit sooner. The allegations of sexual abuse are acts for which parents and child victims old enough to protest would normally seek some form of redress. Nevertheless, they did not. The question is whether the actions of the defendants contributed to the defendants' failure to timely seek redress.
The courts will not bar the assertion of equitable
estoppel when plaintiff is unable to file a lawsuit because of
defendant's affirmative wrongdoing ( see Stencils v Chiappa, , 18 NY2d 125, 128 [1966]). Our courts have long had the power, both
at law and equity, to bar the assertion of the affirmative defense
of the Statute of Limitations where it is the defendant's
The problem with the allegations in the amended complaint is that they do not go far enough. While the plaintiffs allege, generally, transfers and payments and efforts to dissuade persons from reporting criminal activities to appropriate bodies, the allegations are not attributable to the plaintiffs here. If the current plaintiffs had been the target of the allegations asserted and alleged specific instances, the door would be opened to permitting discovery to aid in the pursuit of the establishment of the claims alleged. Due Diligence
When plaintiffs claim that defendants should be
equitably estopped from asserting a statute of limitations bar,
they must show due diligence in bringing the action ( see
Statutes of limitation not only limit the right but also the remedy ( see Ratka v St. Francis Hos., , 44 NY2d 604, 611 1978], overruled on other grounds). Plaintiffs assert that had they had full knowledge of the sexual abuse, they would have been able to seek criminal actions against defendants.
Ordinarily, statutes of limitations function as
statutes of repose ( see Flanagan v Mount Eden Gen. Hos., , 24 NY2d 427, 429-430 [1969]). Thus, time bars serve to put to sleep
all claims that are not brought once all the facts and
The applicable principle in this case is that a
defendant cannot benefit from his own wrongdoing ( see Chiappa,
While it is insufficient for the plaintiffs to make only
general allegations of deception and misrepresentation,
First, in paragraph 115 of the Amended Complaint, plaintiffs quote Bishop Wilton D. Gregory, former President of the United States Conference of Catholic Bishops, who stated:
"We are the ones, whether through ignorance or lack of vigilance, or - - God forbid -- with knowledge, who allowed priest abusers to remain im ministry and reassigned them to communities where they continued to abuse. We are the ones who chose not to report the criminal actions of priests to the authorities, because the law did not require this. We are the ones who worried more about the possibility of scandal than in bringing about the kind of openness that helps prevent abuse. And we are the ones who, at times, responded to victims and their families as adversaries and not as suffering members of the Church."
Second, the amended complaint alleges sexual abuse by specifically named priests and alleges that these priests were transferred from place to place to avoid detection that they were sexual abusers. Third, while the allegations of a secret fund and payments to persons to prevent their publicizing abuse are not specific as to names, enough has been shown to permit a further pleading and perhaps discovery concerning these issues.
Fourth, the claims of breach of a fiduciary duty cannot
be ignored. Plaintiffs maintain that defendants had a fiduciary
relationship with them and, thus, had a duty to protect them from
A claim of a breach of a fiduciary duty has been upheld against clergy persons in other jurisdictions ( F.G. v MacDonnell, 150 N J 550 555, 696 A2d 697 [1997]; Sanders v Casa View Baptist Church, 134 F3d 331 [Tex. 1998]; Destefano v Grabrian, 763 P2d 275, 284 [Colo 1988]). These cases all involved adults. In a proper case, however, a claim of breach of a fiduciary duty can be made against a person in a position of trust involving children.
The issue of the fiduciary relationship between
plaintiffs and defendants is an issue of fact to be determined at
trial ( see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19
[2005]). A fiduciary relationship 'exists between two persons
when one of them is under a duty to act for or to give advice for
the benefit of another upon matters within the scope of the
relation' ( see id. citing Restatement [Second] of Torts § 874,
Comment a). Whether or not a fiduciary relationship existed,
coupled with whether or not the defendants were actively
concealing abuse, are central to determining whether or not
plaintiffs are prevented from pursuing claims against defendants.
Finally, this is a case where anyone would wish the allegations did not exist. Since they have been made, the question is whether they are sufficient to permit the lawsuit to proceed. The allegations are sufficient to permit additional pleading.
For all of the above reasons and specifically because there is alleged evidence of wrongdoing which would equitably estop defendants from asserting the defense of the statute of limitations, plaintiffs should be allowed to replead to demonstrate that defendants engaged in a pattern of deception, fraud, and misrepresentation which prevented them from filing a complaint within the statute of limitations period.
1 Two plaintiffs allege that they were abused after the age of 18.
2 Plaintiffs in both cases have pleaded a separate breach of fiduciary duty cause of action premised on defendants' knowledge, misrepresentation, concealment and failure to disclose information. In this section, we discuss only an alleged breach of fiduciary duty as it relates to pleading equitable estoppel.
3 "If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, . . . the time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except . . . where the person was under a disability due to infancy" (CPLR 208 ).
4 See e.g. Conn Gen Stat § 52-577d [extending the time period for minors to bring sexual abuse claims to 30 years from the age of majority]; Cal Code Civ Proc § 340.1 (c) [creating a one-year window in 2003 for childhood sexual abuse actions where the applicable statute of limitations had expired].
5 CPLR 3211 [a][5]_Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds.
6 Plaintiffs allege in their complaint: #118. Daily, The Bishops and the Diocese intentionally and fraudulently engaged in the routine practice of transferring abusive priests to new parishes, both within and outside the Diocese. To conceal the sexual abuse, Daily, The Bishops and the Diocese also maintained secret files regarding such priests, made secret payments to victims in return for the victims' silence, maintained secret church accounts to make such payments, intentionally failed to investigate complaints of sexual abuse, did not disclose to plaintiffs, their families or other parishioners for that matter, the fact that they were aware of the problem of sexual abuse of children and aware of specific incidents of abuse by defendant priests and others, did not attempt to ascertain if there were other victims of a particular offending priest once they received information that he had in fact sexually abused a child and intentionally failed to warn plaintiffs, their parents or other potential victims or parishioner parents of the danger posed by a known sexually abusive priest.
7 CPLR 213 [8]_an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.
8 Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation, they stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.