by Joel Stashenko (edited)
Husband Can Sue Woman Counselor For Alleged Affair With Ex-Wife
A suit filed by a man who claims his marriage fell apart after a female counselor he and his spouse retained to patch up their differences had an affair with his wife may go forward, a Supreme Court judge ruled.
Supreme Court Justice Patrick NeMoyer in Erie County declined a motion to dismiss brought by the counselor, Amy Remmele, who is the defendant in a suit claiming breach of contract, breach of fiduciary duty, negligence and fraud.
The Case
The judge found that plaintiff, Charles Airey, has sufficiently pleaded that the counsellor may have held out her company, Peak of Success, as offering marriage counseling to Airey while she (as Airey put it in his papers) exploited her position of “highest trust, integrity, and discretion” with the couple to have an affair with Airey’s wife.
Airey will be barred from recovering damages for emotional distress, the destruction of his marriage or mental anguish, though he could attempt to recover fees paid to Remmele for supposed marriage counseling while she was engaged in conduct that helped lead to the dissolution of Airey’s marriage.
“Quite simply, the idea that a self-professed counselor could accept and keep a fee earmarked for marriage or relationship counseling despite entering into a secret sexual relationship with one of the counseled parties is beyond this Court’s acceptance,” NeMoyer wrote.
He rejected Remmele’s argument that Civil Rights Law §80, New York’s so-called Heart Balm Statute, bars actions stemming from alienation of affections, criminal conversation, seduction and breach of contract to marry.
Among the cases he cited for the proposition that Civil Rights Law §80 is not a “categorical bar” to all claims stemming from a professional’s improper sexual involvement with a client is Dupree v. Giugliano, in which a physician in general practice on Long Island was found to have committed medical malpractice for having an affair with a patient.
The claims in this case are likely to rise or fall on what promises, if any, Remmele made to Airey and his wife when she took them on as clients.
The Marriage Counselor
Remmele describes herself on her website as a “coach, consultant, trainer and speaker” to individuals and businesses who believes that “communication and relationship management are the foundational issues for success.”
Remmele insists she promised to provide only “business coaching” to the Aireys and to Airey’s business, beginning in the fall of 2009 and continuing through the winter of 2011.
The Business Relationship
Airey produced a January 2011 email in which he expressed concern to Remmele that she was inappropriately “blending…personal and business” matters. He also submitted an ad from October 2011 in which Remmele says she involves herself in counseling “couples” in their “relation-SHIP,” which she said could be on “the Love Boat” or “the Titanic.”
Airey said he entered into two separate agreements with Remmele and Peak of Success through his pool business, one in November 2010 and one in January 2011. The arrangement in November 2010 called for Peak of Success to run a daylong communications retreat for Airey’s employees and follow-up sessions, including ones for Airey and his wife, he said.
Airey paid $2,100 under the November 2010 contract and installed a pool and a trampoline at Remmele’s home in exchange for services under the second, according to the ruling.
The Ruling
Based on that evidence, the judge said Airey has “sufficiently alleged the existence of a contract whereby defendants would provide marital counseling to plaintiff and his then wife.”
The court concluded that “plaintiff has sufficiently alleged the existence of a fiduciary duty and other relationship of trust between himself and defendant, defendant’s breach thereof, defendant’s exploitation of intimate information, and defendant’s concealment of the arguably material fact that, while purporting to counsel the couple in their marriage, defendant was having a sexual affair with plaintiff’s wife.”
According to the ruling, Airey did not find out his wife was seeking a divorce until she notified him through her attorney on March 17, 2011. The divorce was granted in July 2012, according to the judge.
Duane Schoonmaker of Greco Trapp in Buffalo, Airey’s attorney, said the ruling leaves him ample room to pursue damages in the case based on breach of fiduciary duty and other professional obligations Remmele allegedly had toward Airey and his ex-wife.
“I think it was the right decision,” he said.
Lisa Coppola, the attorney for Remmele and Peak of Success, declined to comment.
