[1048]*1048Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered October 2, 2002. The order dismissed the complaint and denied plaintiffs’ motions and cross motion for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.
Memorandum: Plaintiffs commenced this action against defendants, including the pastor of their former church and various ecclesiastical entities and officials, seeking to recover punitive damages as well as compensatory damages for pain and
[1049]*1049suffering and mental anguish allegedly sustained as a result of an adulterous relationship between plaintiff Wende C. and the pastor, defendant Dr. G. Charles T. (defendant T.). Wende C. and her husband, plaintiff David C., allegedly were receiving pastoral counseling at the time of the sexual relationship. Supreme Court properly denied plaintiffs’ motions and cross motion for summary judgment, searched the record and granted summary judgment sua sponte to defendant T. dismissing the complaint against him.
With regard to the first cause of action, alleging sexual battery, we note that all of the explicit allegations of lack of consent on the part of Wende C. relate to incidents of touching that occurred more than one year prior to commencement of the action. With regard to those incidents of intentional touching, therefore, the court properly dismissed that cause of action as time-barred (see CPLR 215 [3]; Hart v Child’s Nursing Home Co., 298 AD2d 721, 722 [2002]; Sharon B. v Reverend S., 244 AD2d 878, 879 [1997]; Doe v Roe, 192 AD2d 1089, 1090 [1993]). With regard to those incidents of touching that occurred within one year of commencement of the action, we discern no explicit allegations nor any evidence indicative of lack of consent. Instead, the evidence in this record, including the averments of Wende C. and her contemporaneous e-mails and letters, establishes as a matter of law that the romantic attachment was mutual and the sexual contact consensual on the part of Wende C. (see Sanders v Rosen, 159 Misc 2d 563, 576 [1993], citing Coopersmith v Gold, 172 AD2d 982, 984 [1991]). Our conclusion on the issue of defendant T.’s liability for battery with regard to the most recent incidents would of course be different if force were alleged or if Wende C. suffered from some legal disability, such as infancy, mental impairment, or physical helplessness, precluding a consensual sexual relationship (see generally Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003], citing PJI2d 3:3 [2003]). No such disability is even arguably present here, and we cannot find one based on the existence of a counseling relationship.
The court further properly granted defendant T. summary judgment dismissing the cause of action for intentional infliction of emotional distress against him. The conduct alleged was not so “extreme and outrageous” as to “go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts § 46, Comment d; see Lightman v Flaum, 278 AD2d 373, 374 [2000], affd 97 NY2d 128 [2001], cert denied 535 [1050]*1050US 1096 [2002]; see generally Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]).
The court also properly granted defendant T. summary judgment dismissing the cause of action for clergy malpractice against him. No such cause of action is cognizable in New York, because any attempt to define the duty of care owed by a member of the clergy to a congregant or parishioner would result in excessive entanglement on the part of the court in matters of religion (see Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494, 495 [2000]; Joshua S. v Casey, 206 AD2d 839 [1994]; Schmidt v Bishop, 779 F Supp 321, 327-328 [1991] [applying New York law]).
We further conclude that the court properly dismissed the complaint against defendant T. insofar as it may be construed to allege a breach of fiduciary duty. At the outset, we note that the closest plaintiffs have come to alleging a breach of fiduciary duty is their allegation that, in carrying on a sexual affair with Wende C., defendant T. breached “the sacred trust between counselor and careseeker in the course of the ministerial relationship.” That purported cause of action might aptly be labeled one for “clergy misconduct” or perhaps “abuse of pastoral position,” inasmuch as pleading a breach of fiduciary duty is, in this context, merely “ ‘an elliptical way of alleging clergy malpractice’ ” (Franco v Church of Jesus Christ of Latter-day Saints, 21 P3d 198, 205 [Utah 2001]; see Dausch v Rykse, 52 F3d 1425, 1429, 1438 [7th Cir 1994] [applying Illinois law]; Schieffer v Catholic Archdiocese of Omaha, 244 Neb 715, 720-721, 508 NW2d 907, 912 [1993]; Schmidt, 779 F Supp at 326).
Even accepting plaintiffs’ characterization, we nevertheless conclude that there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice. Therefore, for the same reasons that a cause of action for clergy malpractice is not cognizable, a cause of action for breach of fiduciary duty by a cleric may not be predicated on the allegations set forth in this case (see Langford, 271 AD2d at 495; Schmidt, 779 F Supp at 325-326). An inquiry into whether a cleric violated a fiduciary duty to a congregant would involve the court in the same excessive entanglement in religious affairs as an inquiry into whether the cleric violated a duty of due care owed to the congregant. In either case the court would be required to “ ‘venture into forbidden ecclesiastical terrain’ ” (Langford, 271 AD2d at 495; see Schmidt, 779 F Supp at 325-326). In terms of the examination necessitated into the moral precepts, theology, and rules of [1051]*1051governance of a particular church and religion, we see no distinction between positing a clerical duty of due care (as under the law of negligence) and positing a clerical duty of due care, loyalty, fidelity, honesty and good faith (as under the law governing the conduct of fiduciaries). There is likewise no appreciable difference in the nature of the inquiries into whether a cleric might have been careless, and whether he might have been neither careful nor morally and ethically upright. In either instance, the court’s task would be the impermissible one of determining whether the cleric “grossly abused his pastoral role” (Schmidt, 779 F Supp at 326) or otherwise breached his “duties as a member of the clergy offering religious counseling to the plaintiff’ (Langford, 271 AD2d at 495). In either instance, the court would have to compare the cleric’s behavior with what it should have been, vocationally and religiously speaking.
In our view, plaintiffs’ unpleaded claim for breach of fiduciary duty cannot be resolved in accordance with neutral principles of law, i.e., without any judicial inquiry into religious precepts. In other words, the claim cannot be adjudicated without reference to the status, role, and expected behavior of defendant T. as a pastor,from which his status and all of his credentials as a counselor derive. In that regard, we note that defendant T.
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[1048]*1048Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered October 2, 2002. The order dismissed the complaint and denied plaintiffs’ motions and cross motion for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.
Memorandum: Plaintiffs commenced this action against defendants, including the pastor of their former church and various ecclesiastical entities and officials, seeking to recover punitive damages as well as compensatory damages for pain and
[1049]*1049suffering and mental anguish allegedly sustained as a result of an adulterous relationship between plaintiff Wende C. and the pastor, defendant Dr. G. Charles T. (defendant T.). Wende C. and her husband, plaintiff David C., allegedly were receiving pastoral counseling at the time of the sexual relationship. Supreme Court properly denied plaintiffs’ motions and cross motion for summary judgment, searched the record and granted summary judgment sua sponte to defendant T. dismissing the complaint against him.
With regard to the first cause of action, alleging sexual battery, we note that all of the explicit allegations of lack of consent on the part of Wende C. relate to incidents of touching that occurred more than one year prior to commencement of the action. With regard to those incidents of intentional touching, therefore, the court properly dismissed that cause of action as time-barred (see CPLR 215 [3]; Hart v Child’s Nursing Home Co., 298 AD2d 721, 722 [2002]; Sharon B. v Reverend S., 244 AD2d 878, 879 [1997]; Doe v Roe, 192 AD2d 1089, 1090 [1993]). With regard to those incidents of touching that occurred within one year of commencement of the action, we discern no explicit allegations nor any evidence indicative of lack of consent. Instead, the evidence in this record, including the averments of Wende C. and her contemporaneous e-mails and letters, establishes as a matter of law that the romantic attachment was mutual and the sexual contact consensual on the part of Wende C. (see Sanders v Rosen, 159 Misc 2d 563, 576 [1993], citing Coopersmith v Gold, 172 AD2d 982, 984 [1991]). Our conclusion on the issue of defendant T.’s liability for battery with regard to the most recent incidents would of course be different if force were alleged or if Wende C. suffered from some legal disability, such as infancy, mental impairment, or physical helplessness, precluding a consensual sexual relationship (see generally Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003], citing PJI2d 3:3 [2003]). No such disability is even arguably present here, and we cannot find one based on the existence of a counseling relationship.
The court further properly granted defendant T. summary judgment dismissing the cause of action for intentional infliction of emotional distress against him. The conduct alleged was not so “extreme and outrageous” as to “go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts § 46, Comment d; see Lightman v Flaum, 278 AD2d 373, 374 [2000], affd 97 NY2d 128 [2001], cert denied 535 [1050]*1050US 1096 [2002]; see generally Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]).
The court also properly granted defendant T. summary judgment dismissing the cause of action for clergy malpractice against him. No such cause of action is cognizable in New York, because any attempt to define the duty of care owed by a member of the clergy to a congregant or parishioner would result in excessive entanglement on the part of the court in matters of religion (see Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494, 495 [2000]; Joshua S. v Casey, 206 AD2d 839 [1994]; Schmidt v Bishop, 779 F Supp 321, 327-328 [1991] [applying New York law]).
We further conclude that the court properly dismissed the complaint against defendant T. insofar as it may be construed to allege a breach of fiduciary duty. At the outset, we note that the closest plaintiffs have come to alleging a breach of fiduciary duty is their allegation that, in carrying on a sexual affair with Wende C., defendant T. breached “the sacred trust between counselor and careseeker in the course of the ministerial relationship.” That purported cause of action might aptly be labeled one for “clergy misconduct” or perhaps “abuse of pastoral position,” inasmuch as pleading a breach of fiduciary duty is, in this context, merely “ ‘an elliptical way of alleging clergy malpractice’ ” (Franco v Church of Jesus Christ of Latter-day Saints, 21 P3d 198, 205 [Utah 2001]; see Dausch v Rykse, 52 F3d 1425, 1429, 1438 [7th Cir 1994] [applying Illinois law]; Schieffer v Catholic Archdiocese of Omaha, 244 Neb 715, 720-721, 508 NW2d 907, 912 [1993]; Schmidt, 779 F Supp at 326).
Even accepting plaintiffs’ characterization, we nevertheless conclude that there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice. Therefore, for the same reasons that a cause of action for clergy malpractice is not cognizable, a cause of action for breach of fiduciary duty by a cleric may not be predicated on the allegations set forth in this case (see Langford, 271 AD2d at 495; Schmidt, 779 F Supp at 325-326). An inquiry into whether a cleric violated a fiduciary duty to a congregant would involve the court in the same excessive entanglement in religious affairs as an inquiry into whether the cleric violated a duty of due care owed to the congregant. In either case the court would be required to “ ‘venture into forbidden ecclesiastical terrain’ ” (Langford, 271 AD2d at 495; see Schmidt, 779 F Supp at 325-326). In terms of the examination necessitated into the moral precepts, theology, and rules of [1051]*1051governance of a particular church and religion, we see no distinction between positing a clerical duty of due care (as under the law of negligence) and positing a clerical duty of due care, loyalty, fidelity, honesty and good faith (as under the law governing the conduct of fiduciaries). There is likewise no appreciable difference in the nature of the inquiries into whether a cleric might have been careless, and whether he might have been neither careful nor morally and ethically upright. In either instance, the court’s task would be the impermissible one of determining whether the cleric “grossly abused his pastoral role” (Schmidt, 779 F Supp at 326) or otherwise breached his “duties as a member of the clergy offering religious counseling to the plaintiff’ (Langford, 271 AD2d at 495). In either instance, the court would have to compare the cleric’s behavior with what it should have been, vocationally and religiously speaking.
In our view, plaintiffs’ unpleaded claim for breach of fiduciary duty cannot be resolved in accordance with neutral principles of law, i.e., without any judicial inquiry into religious precepts. In other words, the claim cannot be adjudicated without reference to the status, role, and expected behavior of defendant T. as a pastor,from which his status and all of his credentials as a counselor derive. In that regard, we note that defendant T. was not a therapeutic counselor with any state license or state-recognized credentials, but rather was merely a religious counselor. There is thus no basis for concluding that the pastoral counseling relationship and behavior in question may be regarded as essentially secular in nature. Indeed, according to the explicit allegations of the complaint, the matter of religion, and more particularly the “ministerial relationship,” “is not ‘merely incidental’ to . . . plaintiff[s’] relationship with . . . defendant [T], ‘it is the foundation for it’ ” (Amato v Greenquist, 287 Ill App 3d 921, 932, 679 NE2d 446, 454 [1997]; see Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 580, 603 NW2d 816, 823 [1999] ). Thus, if defendant T. is to be judicially stripped of his status as plaintiffs’ pastor, then he cannot legally be regarded as a counselor either, because he has no secular standing or credentials as such (see Langford v Roman Catholic Diocese of Brooklyn, 177 Misc 2d 897, 901-902 [1998], affd 271 AD2d 494 [2000] ). In that event, plaintiffs’ claim against defendant T. would allege nothing more than the common-law causes of action for alienation of affections and criminal conversation, which are no longer recognized in New York as bases for the imposition of tort liability (see Civil Rights Law §§ 80-a, 84; Langford, 177 Misc 2d at 902 n 15). Indeed, the only circumstance that distinguishes the relationship between Wende C. and defendant T. from the ordinary adulterous relationship is the fact that de[1052]*1052fendant T. is a minister. Because a tort action based strictly upon adulterous conduct is prohibited by the Civil Rights Law, liability, if any, must arise from defendant T.’s status as a minister. However, to impose greater liability on an adulterer who happens to be a minister than on any other adulterer would, in our view, violate constitutional principles.
We are thus unable in this context to discern any distinction between a claim for clergy malpractice and one for the breach by a cleric-counselor of his fiduciary duty to his congregants/ counselees. In particular, we fail to see how it avoids concerns of “excessive entanglement” to posit that defendant T. was guilty of a breach of a “trust” or “confidence” as opposed to a duty of due care. “Trust” and “confidence” are, like “due care,” merely shorthand for plaintiffs’ legitimate legal expectations, and here all of plaintiffs’ expectations stemmed from plaintiffs’ status as congregants and defendant T.’s status and role as plaintiffs’ pastor-counselor. Indeed, the only trust or confidence alleged here is that defendant T. would not abuse his clerical obligations to and pastoral authority over plaintiffs, which obligations and authority are derived completely from the tenets of the particular religion and church to which plaintiffs and defendant T. belonged. Contrary to the dissent’s position, the religious entanglements are not avoided by analyzing the claim on the basis of the specific fiduciary relationship of trust allegedly existing between the cleric and his congregants in a particular counseling relationship, as opposed to a more generalized standard of care to be adhered to by all clergy in all of their dealings with their congregants. In either case, it could be only the status and role of defendant T. as a pastor-counselor that would render him a fiduciary answerable for the breach of plaintiffs’ trust by engaging in an adulterous relationship with Wende C.
In view of the foregoing, we conclude that the court further properly granted the motion and cross motions of the remaining defendants for summary judgment dismissing the complaint against them. In the absence of any wrongful or actionable underlying conduct by defendant T, there can be no imposition of vicarious liability against any alleged employer or principal of defendant T. pursuant to the doctrine of respondeat superior (see Karaduman v Newsday, Inc., 51 NY2d 531, 545-546 [1980]; Nichols v Niagara Mohawk Power Corp., 37 AD2d 909, 910 [1971], affd 33 NY2d 670 [1973]; cf. Richardson v New York Univ., 202 AD2d 295, 297 [1994]; see generally Bing v Thunig, 2 NY2d 656, 666-667 [1957]). Further, even if there had been some actionable conduct on the part of defendant T, there can be no respondeat superior liability where, as here, the conduct [1053]*1053was not committed within the scope or furtherance of the employment or agency (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 [2002], lv denied 99 NY2d 503 [2002]; Paul J.H. v Lum, 291 AD2d 894, 895 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997], cert denied 522 US 967 [1997], lv dismissed 91 NY2d 848 [1997]; Joshua S. v Casey, 206 AD2d 839 [1994]; Mary KK. v Jack LL., 203 AD2d 840, 841 [1994]).
The court further properly dismissed the complaint against the remaining defendants insofar as it may be construed to allege negligent ordination of defendant T. The ordination of clergy is a “quintessentially religious” activity, and imposing liability for conferring that status would excessively entangle the court in religious affairs, in violation of the First Amendment (see Kenneth R., 229 AD2d at 162-163). Moreover, in the absence of any actionable conduct by defendant T., plaintiffs may not recover from any of the remaining defendants for their alleged negligence in hiring, supervising, or retaining him (see Primeau v Town of Amherst, 303 AD2d 1035, 1036 [2003]; cf. Borden v Capital Dist. Transp. Auth., 307 AB2d 1059, 1061-1063 [2003]; Acevedo v Audubon Mgt., 280 AD2d 91, 97-98 [2001]).
All concur except Pigott, Jr., EJ., and Scudder, J, who dissent in part and vote to modify in accordance with the following memorandum.