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A lawsuit filed against the Roman Catholic Archdiocese of New York and a Manhattan parish by a boy who was molested by a church volunteer with a past conviction for sexual abuse has been dismissed by a Manhattan Supreme Court justice. In granting summary judgment to the defendants in Melendez v. Roman Catholic Archdiocese of New York, 105355/97, Justice Martin Schoenfeld concluded that the East Harlem church, St. Cecilia’s, owed no duty to students receiving religious instruction that would have required the parish to perform a criminal background check on church volunteers. “The courts have decided … that employers do not have a duty to do criminal background checks on employees absent a particular reason to do so,” Schoenfeld wrote. “This rule, be it good, bad or indifferent, has a rational basis in concerns of privacy, stigmatization, employer costs and keeping employer liability within reasonable bounds.” The suit stemmed from plaintiff Alvin Melendez’s claim that while attending religious instruction at St. Cecilia’s on Oct. 8, 1994, when he was 8 years old, he was sexually molested by church volunteer Harry Smith in or near a bathroom in the church building. It was later learned that Smith had pleaded guilty in 1987 to a charge of second-degree sexual abuse, for which he was sentenced to three years’ probation. Smith also pleaded guilty to first-degree sexual abuse in the incident involving Alvin Melendez. Schoenfeld noted that while landowners have a duty to control the conduct of third parties on their premises when aware of the need to do so, there is no duty to investigate the possibility that a prospective employee might have been convicted of a crime, unless facts exist that would lead a reasonably prudent person to do so. And once the employment begins, the judge wrote, an employer cannot be held liable for a tortious act outside the scope of employment unless the employer was alerted to the possibility that such an incident might occur. In this case, he wrote, “[a]fter extensive disclosure, there is no evidence that either defendant had reason to suspect that Smith had been convicted of a crime or that either defendant had been ‘alerted to the possibility that [a molestation] might occur.’ “ As part of their opposition motion, the plaintiffs submitted an affidavit by an expert in educational administration and supervision, Peter Loehr, Ph.D., who argued that the failure by St. Cecilia’s to perform a background check on Smith “fell below industry standards.” But Justice Schoenfeld found Loehr’s testimony insufficient, since he did not provide any evidence to establish an industry standard. And in any event, the judge wrote, the question of whether the church had a duty to perform a background check is a question of law that courts have consistently answered in the negative. Melendez and his family were represented by Eric H. Green, of Manhattan, who said an appeal will be filed. Frank C. McLaughlin of Manhattan’s Cusack & Stiles represented the defendants.

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