Lightman v. Flaum , 717 N.Y.S.2d 617 ( 2000 )

In an action, inter alia, to recover damages for breach of the fiduciary duty of confidentiality and the intentional infliction of emotional distress, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.), dated March 4, 1999, as, upon converting their motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) to a motion for summary judgment, in effect, denied those branches of the motion which were for summary judgment dismissing the first, second, third, and fourth causes of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were for summary judgment dismissing the first, second, third, and fourth causes of action are granted, and the complaint is dismissed.

The plaintiff, an Orthodox Jewish woman, was experiencing marital difficulties and turned to the defendant rabbis. During her talks with the defendants, she disclosed certain private information to them. However, either the plaintiffs mother or a friend were present during those conversations. The plaintiff subsequently commenced a divorce action against her husband. In opposition to the plaintiffs motion for pendente lite relief, her husband submitted affirmations by the defendants which contained some of the material she had disclosed to them. As a result of the disclosure, the plaintiff commenced this action against the defendants, asserting causes of action for, inter alia, breach of the fiduciary duty of confidentiality and the intentional infliction of emotional distress. Upon converting the defendants’ motion to dismiss pursuant to CPLR 3211 (a) (7) to one for summary judgment, the Supreme Court, in effect, denied the defendants summary judgment on the causes of action for breach of fiduciary duty, subject to a determination, inter alia, of whether the plaintiffs privilege had been waived by the presence of a third person. The Supreme Court also found that the defendants were not entitled to summary judgment on the third and fourth causes of action for intentional infliction of emotional distress. We reverse.

After the defendants made a prima facie showing that they were entitled to summary judgment as a matter of law, the plaintiff failed to demonstrate the existence of a triable issue of fact, Specifically, the plaintiff failed to show that the clergy-penitent privilege was not waived by the presence of a third person during her conversations with each of the defendants (see, Zuckerman v City of New York, 49 NY2d 557, 562). In view of this determination, we do not determine whether the plaintiff stated a cognizable claim for breach of fiduciary duty.

Likewise, the defendants are entitled to summary judgment dismissing the third and fourth causes of action alleging intentional infliction of emotional distress. The facts alleged regarding the defendants’ conduct did not rise to a level which would satisfy the “extreme and outrageous conduct” element of such a cause of action and, therefore, summary judgment was warranted (Freihofer v Hearst Corp., 65 NY2d 135). Santucci, J. P., Florio, and McGinity, JJ., concur.