| N.Y. App. Div. | Jul 15, 1994
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant Casey’s motion to dismiss the clergy malpractice cause of action. The instances of wrongful conduct alleged in the complaint constitute intentional torts, and, " 'once intentional offensive conduct has been established, the actor is liable for assault and not negligence’ ” (Schmidt v Bishop, 779 F Supp 321, 325, quoting Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376). Moreover, we are unaware of any authority supporting the proposition that sexual abuse by a member of the clergy is cognizable as "clergy malpractice” (see, e.g., Natty v Grace Community Church, 47 Cal 3d 278, 763 P.2d 948" date_filed="1988-11-23" court="Cal." case_name="Nally v. Grace Community Church">763 P2d 948, cert denied 490 U.S. 1007" date_filed="1989-04-03" court="SCOTUS" case_name="Lowery v. Lowery">490 US 1007; Moses v Diocese of Colo., 863 P.2d 310" date_filed="1993-11-15" court="Colo." case_name="Moses v. Diocese of Colorado">863 P2d 310 [Colo], cert denied 490 U.S. 1007" date_filed="1989-04-03" court="SCOTUS" case_name="Lowery v. Lowery">490 US 1007; Byrd v Faber, 57 Ohio St 3d 56, 565 N.E.2d 584" date_filed="1991-01-16" court="Ohio" case_name="Byrd v. Faber">565 NE2d 584; White v Blackburn, 787 P.2d 1315" date_filed="1990-02-12" court="Utah Ct. App." case_name="White v. Blackburn">787 P2d 1315 [Utah App]).
The court also properly granted the motion of defendants St. Paul’s Elementary School, St. Paul’s Church and the Roman Catholic Diocese of Syracuse, incorrectly sued as Saint Paul’s Academy, Saint Paul’s Parish and the Diocese of Syracuse of the Roman Catholic Church, respectively, to dismiss the cause of action alleging liability under the doctrine of respondeat superior. An employer may be liable for the acts of an employee, whether negligent or intentional, if the acts complained of are within the scope of employment and in furtherance of the employer’s business (Noto v St. Vincent’s Hosp. & Med. Ctr., 160 AD2d 656, 656-657, lv denied 76 NY2d 714; see, Cornell v State of New York, 46 NY2d 1032; Koren v Weihs, 190 AD2d 560). The alleged sexual assault was not within the scope of employment (see, Cornell v State of New York, supra) and cannot be said to have been in furtherance of the employer’s business. (Appeal from Order of Supreme Court, Onondaga County, Roy, J.—Summary Judgment.) Present—Denman, P. J., Pine, Fallon, Callahan and Davis, JJ.