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	Divided Court Rules Seduction Claims against Rabbi Mordechai Tendler Are Barred by N.Y. Law, Woman He Allegedly Seduced to Appeal Failed Messiah August 24, 2007 http://failedmessiah.typepad.com/failed_messiahcom/2007/08/divided-court-r.html New York — A woman has no claims against a Rockland County, N.Y., rabbi who she alleges counseled her to have sex with him as a way of overcoming her problems in finding a husband, a divided Appellate Division, 1st Department, ruled Thursday. The woman, Adina Marmelstein, asserts in Marmelstein v. Kehillat New Hempstead, 117629/05, that, as a result of the counseling, she and Orthodox Rabbi Mordecai Tendler had sexual relations for five years ending in 2005 after the rabbi had abused her emotionally and physically. In a 3-2 ruling, the 1st Department dismissed the two remaining claims against Tendler as being barred by a state statute that specifically rules out a cause of action for seduction. Lenore Kramer of Kramer & Dunleavy in Manhattan, who represents Marmelstein, said she will take the case to the Court of Appeals as a matter of right since there were two dissenting votes.… The allegations were not enough to overcome the bar against actions for seduction in Civil Rights Law §80-a, Justice Joseph P. Sullivan wrote. Marmelstein's two remaining causes of action for breach of fiduciary duty and intentional infliction of emotional distress, he concluded, are "thinly veiled claims" for "seduction," a term that has been "broadly defined" by the courts in construing Civil Rights Law §80-a.… At the trial level, Manhattan Justice Jane S. Solomon had dismissed Marmelstein's other two claims -- fraud and negligent infliction of emotional distress. She had not appealed that ruling. In dissent, Justice John W. Sweeny Jr. concluded that, notwithstanding the statutory prohibition against actions for seduction, Marmelstein had made allegations sufficient to make out a claim of breach of fiduciary duty..… The article goes on to describe a 2005 case where a woman initiated sex with her pastor. The woman also sought counseling from that pastor. The court dismissed the woman's claim for clergy malpractice but left open the possibility that the woman may have a claim for breach of fiduciary duty. Judge Sweeny, in his dissent, noted that breach of fiduciary duty may very well be present in the Rabbi Tendler case: …Marmelstein's allegations, taken as true, Sweeny stated, describe a fiduciary relationship: Marmelstein consulted Tendler because he had held himself out as counselor with expertise in women's issues, and he abused the confidence she had placed in him "by inducing plaintiff to enter into a sexual relationship to satisfy his own desires." Similarly, the claim for the intentional infliction of emotional distress was not "merely a seduction case," Sweeny wrote, but a claim that Tendler had "clearly exploited the vulnerability of the plaintiff to attain his own ends."… Writing for the majority, Justice Joseph P. Sullivan disagreed: …The fact that the Court of Appeals in Wende C. left open the issue of whether "under very different circumstances" a fiduciary relationship may arise between a cleric and a parishioner, Sullivan wrote, "does nothing to advance the dissent's position." In Wende C., [Justice Joseph P.] Sullivan reasoned, there were no "veiled allegations" of seduction like those made by Marmelstein. In other words, because the woman made claims of "veiled" seduction by Rabbi Mordechai Tendler, all claims of breach of fiduciary duty are void. Following what appears to be the logic of the majority decision, anything less than forcible rape cannot qualify as breaching fiduciary duty. Therefore, if any non-vulnerable adult has manipulated sex with a clergyperson who is counseling them, no legal redress is available. This seems to be an unusually narrow interpretation of the law. However, it does seem to follow New York State's pattern of allowing religion a wider birth than is common elsewhere in the United States. An example is the lack of a requirement for background checks of day care workers and school teachers who work or teach in religious day cares and schools, while teachers in public schools and nonsectarian day cares must by law have a criminal background check before hire. Another example is the generally lax state enforcement of tax laws when dealing with religious charities like churches, religious schools, synagogues and yeshivot but a stricter level of enforcement of those same laws when dealing with nonsectarian charities. At any rate, it seems that clergy abuse will need to be dealt with legislatively with a clearly drawn law defining its parameters. Barring that, unless this decision is overturned on appeal, it seems that Rabbi Mordechai Tendler's gift to New York will be a near-free pass for clergy to manipulate and bed the people who come to them for counseling. Divided Panel Rules 'Seduction' Claims Against Rabbi Are Barred by N.Y. Law
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