BishopAccountability.org
	Divided Panel Rules 'Seduction' Claims against Rabbi Are Barred by N.Y. Law By Daniel Wise New York Law Journal August 24, 2007 http://www.law.com/jsp/article.jsp?id=1187859736882 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 Rockland County synagogue where Tendler presided, Kehillat New Hempstead, had not moved to dismiss Marmelstein's claim for negligent supervision against it, but will now move for summary judgment based on the 1st Department's ruling, said its lawyer, Marcy Sonneborn, of Molod, Spitz & DeSantis in Manhattan. Tendler's lawyer, Glen S. Feinberg of Wilson, Elser, Moskowitz, Edelman & Dicker, said the rabbi is no longer associated with the 150-member synagogue, which he founded. According to the decision, Tendler was known within the Orthodox Jewish community as a scholar, educator and community leader. In her lawsuit, according to the majority opinion written by Justice Joseph P. Sullivan, Marmelstein averred that Tendler had advised her to have sex with him so that her "life will open up and men will come to her." She also claimed the rabbi had told her "he was as close to God as anyone could get" and having sex with him would be "her only hope." 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. Justices Richard T. Andrias and Bernard J. Malone Jr. joined in the majority opinion. 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. Justice Milton L. Williams was the second dissenter. In Wende C. v. United Methodist Church, 4 NY3d 293 (2005), which involved a congregant who had initiated sexual relations with her pastor from whom she had sought counseling, Sweeny noted, the Court of Appeals had dismissed a claim for "clergy malpractice" but left open a determination of whether a claim for breach of fiduciary duty might be available. The court in Wende C., Sweeny said, had expressly left open the breach of fiduciary duty question for claims "between a cleric and a parishioner under very different circumstances, not present here." Returning to Marmelstein's case, Sweeny wrote, "those 'very different circumstances' may well be present here." 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." Sullivan disputed the dissent's claim that Wende C. gave Marmelstein an opening within which she could raise a claim of breach of fiduciary duty. 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., Sullivan reasoned, there were no "veiled allegations" of seduction like those made by Marmelstein.
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.