By John Caher
New York Law Journal
July 18, 2005

http://www.law.com/jsp/article.jsp?id=1121418319514

The New York Court of Appeals so rarely reverses itself that when it does, observers take notice. Such is the case with two clergy abuse matters now pending before the court.

Earlier this month, after denying leave in a 30-year-old alleged sexual abuse case, the court reversed itself and agreed to hear the appeal of Zumpano v. Quinn. That decision followed another, Boyle v. Smith, where the court -- subsequent to the initial leave denial in Zumpano -- granted leave in a case involving claims by 42 men and women who contend they were abused by a dozen priests in the Diocese of Brooklyn.

There is no way to determine what was on the judges' minds when they granted leave in Boyle and reversed themselves in Zumpano, but the motion papers do at least show what the plaintiffs argued in their successful bids. In both cases, plaintiffs counsel focused on the doctrine of equitable estoppel and an exception to the statute of limitations where it is alleged that the wrongdoing of the defendant caused the plaintiff to refrain from timely filing.

In Zumpano, for instance, counsel Frank Policelli of Utica, N.Y., contends that his client's mental illness is directly attributable to the abuse he allegedly suffered at the hands of a Syracuse, N.Y., diocese priest. He claims the defendant held such psychological power over John Zumpano that there was no way the victim could have sought legal relief earlier.

"[I]t would be grossly unfair to reward defendants because their initial wrongdoing was successful in preventing Zumpano from asserting his legal rights," Policelli said in his motion papers.

The Appellate Division, 4th Department, had noted in rejecting Zumpano's appeal that there is no indication that the priest at issue or the diocese overtly committed any acts against the plaintiff since 1970. The alleged abuse, which according to Zumpano occurred over several years, had stopped by then. There are no allegations that either the priest or the diocese asserted control over Zumpano anytime in the last 35 years.

On May 5, the Court of Appeals denied Zumpano leave. But it reversed itself on July 6, something it can do under CPLR 500.11 only when it has misapprehended or overlooked a major point, or for "extraordinary and compelling" reasons. In the last five years, the court considered 275 requests to reargue a motion and granted five. The Zumpano reversal came just weeks after the court agreed to hear Boyle v. Smith.

Both cases ask for clarification of General Stencils v. Chiappa, 18 NY2d 125, a 1966 opinion where the court made clear that one who conceals theft is estopped from asserting a statute of limitations defense. In Chiappa, it said equity bars favoring a wrongdoer over a victim and permitting the wrongdoer to "take refuge behind the shield of his own wrong."

That is the same argument plaintiffs' attorneys make in Zumpano and Boyle. However, those cases present much different fact patterns than Chiappa, which dealt with a thief, and implicate the insanity disability exception under CPLR § 208.

Under CPLR § 208, those who were insane at the time of the alleged occurrence, or rendered insane by the incident or incidents, are entitled to a toll of up to 10 years. It is not clear, though, when that clock starts running, particularly when the alleged victim claims continuing mental illness or, as in the clergy cases, long-lasting effects of psychological and/or spiritual intimidation.

"There are genuine and legitimate concerns for statutes of limitations to exist, but in clergy pedophilia cases the use of the statute of limitations defense is bad and dangerous policy, and also unwarranted because almost all of those victims are unable to recognize how the abuse adversely affected their lives until they are in their 30s, 40s or even 50s," said attorney John A. Aretakis, who represents dozens of clergy abuse victims, generally in the Albany area.

MEDIATION PROGRAMS

If the court does revive otherwise time-barred clergy abuse claims, it could provide an unexpected avenue of redress for untold numbers of victims while exposing Catholic churches throughout the state to financial catastrophe. But it would also raise questions about the various mediation programs sponsored by the church, programs in which the church provides counseling and often compensation to victims it thought had no remedy in the courts.

One such program is operating in Albany under the direction of former Court of Appeals Judge Howard A. Levine, now of Whiteman Osterman & Hanna.

Diocesan spokesman Kenneth Goldfarb said the program is active. He declined to speculate on the impact, if any, if the court were to revive seemingly stale claims.

"More and more cases are being settled [through the mediation program]," Goldfarb said. "People are entering the program and going through the mediation and coming out the other end with some sort of assistance that hopefully will help them."

Aretakis suggested that those in the program may be settling because they believe they had no other recourse. He said victims who go through the church-sponsored mediation receive only 10 to 20 percent of the awards those who pursued legal action received. Before the clergy abuse scandal became national front-page news, many of those cases were quietly settled for significant sums and a pledge of secrecy.

Paul Hanrahan of Hancock & Estabrook in Syracuse and Emil M. Rossi of Syracuse represent the Zumpano defendants. The Boyle plaintiffs are represented by Michael G. Dowd of Manhattan. John T. Uejio of Conway, Farrell, Curtin & Kelly in Manhattan represents the defendants in Boyle.

The Court of Appeals is not likely to hear either case until next year.