Cecora v De La Hoya

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Cecora v De La Hoya 2012 NY Slip Op 30866(U) March 30, 2012 Sup Ct, NY County Docket Number: 112787/11 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] 4NED ON41512012 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY HON. PAUL WOOTEN PART Justice - 7 .. . .......... ~.. ANGELICA CECORA, Plaintiff, 112787111 INDEX NO. against - 002 MOTION SEQ. OSCAR DE LA HOYA, Defenda nt. The following papers were read on this motion by defendant to dismiss and for the imposition of sanctions, and the motion by plaintiff's to disqualify defendant's counsel. Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 4,8312 Aqqwerlng Affidavits - Exhibits (Memo) - . . Motion sequences 002 and 003 are hereby consolidated for purposes of disposition. Angelica C e w r a (plaintiff) brings this tort action and asserts Gltaims for battery, assault, false imprisonment, and intentional infliction of emotional distress against Oscar be La Hoya (defendant). Defendant moves pursuant to CPLR 321 1(a)(7), to disrni$s the complaint for .", L I + failure to state a cause of action and for the imposition of sanctions against plaintiff and her attorney, pursuant to Section 130-1 1 of the Rules of the Chief Administrator (Mot. Seq, 002) I Plaintiff is in opposition to defendant's motion, and separately moves to disqualify defendant's counsel (Mot Seq. 003).' BACKGROUND The complaint alleges that plaintiff went to defendant's hotel on March 15, 201 1, at 6:OO P M., at his request (see Mot. Seq. 002, exhibit A). Plaintiff claims that she had dinner with I The Court notes that it is in ,receipt of IettRr correspondeqce from bpth pafiles. However, as Such corresponderbe was not authdrized by the Court and was received after these h7ofiorls were marked fully submitted, said correspondence was not considered by the Court in dealding the herein motions, : Page 1 of 10 .. , [* 2] t , went to his suite and stayed in the hotel unt defend 2: 5 P.M. he next day. While in the hotel suite plaintiff alleges that they had sexual intercourse, engaged in other sexual activities, . .. . . . . . . .. . . . .. , .. . . .. . .. . .. . . . . . .- .. . . .. - - . ..-. . and defendant had drugs delivered to him, which he used. Plaintiff summoned her roommate to join them, at defendant s request, and her roommate allegedly also had sexual contact with defendant. After both women went to sleep in the suite s bedroom, plaintiff allegedly rebuffed four attempts by defendant to resume sexual contact with her. When plaintiff awoke around 10:30 A.M. the following morning, defendant was absent. Plaintiff avers that she decided to use the hotel s spa, which defendant allegedly gave her permission to charge to his hotel room. When plaintiff returned to defendant s suite from the spa, hotel personnel told her to leave. Defendant had allegedly checked out at 8 3 0 A.M: w i t h w t authorizing any other charges to his room. At 12:45 P.M., wlIen plaintiff and her r dommate were leaving the hotel ey were stopped by hotel security and hotel m m escorted outside of the hotel, and informed that plaintiff would be responsible for payiag the charges she incurred that morning. The two women eventually left the hotel without further incident. On November 9, 201 1 , platntiff commenced the instant action, asserting causes of f i * action for battery (first), assault (second), false imprisonment (third) and inteqtional infliction of emotional distress (fourth). STANDARD CPLR 321 1(a)(7), provides that, a party may move for judgment dismissing one or more causes of action asserted ilgainst him on the ground that: [7] The pleading fails to state a cause of action; , , When determining a CPLR 321 I (a) motion, we liberally construe the complaint and li accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion (51 1 W. 232ud Owners Corp, v Jennifer Realty Co , 98 NY2d 144, 151-152 [2002]; see Leon v Martmez, 84 NY2d 83, 87 [1994]; Sokoloff v Harriman Estates Dev. Corp., . - [* 3] 96 2d I 9 lY2d 628 [1992]). We also accord plaintiffs the 11; Wieder v Skala, benefit of every possible favorable inference (511 W 232nd Owners C o p , 98 NY2d at 152, . _. . . __. . _ 1 Sokoloff v Hamman Estates Dev Corp, 96 NY2d at 414) The court accept[s] the facts as alleged in the complaint as true, accord[s] plaintiffs the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83,87-88 [I 9941). However, [ilt is well settled that bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence . . . are not presumed to be true on a motion to disrniss for legal I insufficiency (O Donnell, Fox & Gartiler, P. C. v R-2000 Corp., 198 AD2d 154, 154 [ 1st Dept . 19931). - . . - ,., - . _. - _ . Upon a 321 1(a)(7)motion to dismiss for failure to sthte a cause of aGtion, the question h for us is whether the requisite allegations sf any valid cause of gction dognizable by the state I courts can be fairly gathered from all the averments (Foley v D Agosfiiio, 21 AD2d 60, 65 [ I s t Dept. 19641, quoting Coridoii v Associated Hosp. $en/., 287 NY 41 1, 414 [1942]). In order to defeat a pre-answer motion to dismiss pursuant to CPLR 321 1, the opposing party need only . legal,tFeory (seq Bonnie & assert facts of an evidentiary nature which. fit within any cognifa@ble Go Fashions, /tic. v. Baiikeis Trust Go., 1262AD2d 188 [Ist Dept 19991). Defendant s Motiorr to Dismiss - Mot, Spq. 002 L Based on the facts provided by plaihtiff, the complaint summarizes the four causes of action as follows. Battery - Defendant touched or contacted the Plaintiff without the Plaintiff s consent . . . [and] Defendant s touching of the Plaintiff was harmful and offensive to the Pldintiff (Complaint, 77 41, 43). Assault - Defendant s physical conduct put the Plaintiff in irnrnir&t appreh,$nsion of harmful cwtakt (id.,7 48). False imprisonment Defendant confined the Plaintiff in an area Where she could not 77 leave . . . [without] any privilege to allow him to confine the Plaintiff (d., 50, 53). Intentional inflictiw of emotional distress - Defendant was responSible fot conduct 7 toward the Plgintiff that was e%tremsdnd autrageous (id., 55). - 2, Defehdant s four attempts to resume sexual contact with plaintiff are the alleged battery. Page 3 of I O [* 4] In the complaint, plaintiff alleges that defendant began touching the Plaintiff and pulling her out of bed in order to have sex with the Plaintiff (id.,77 26-29). - - . An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself offensive , i.e., wrongful under all the circumstances (Messha v Matarasso, M.D., F A.C.S., P.C., AD2d 32, 35 [ I s t Dept 20011, quoting Zgraggen v W h e y , 200 AD2d 284 818, 819 [3rd Dept 19941). Defendant argues that plaintiff s claim for battery is inherently incredible in light of the other allegations in the komplaint and in viewing the totality of the circumstances surrounding the alleged offensive conduct These allegations include: plgintiff engaging in consensual sexual intercwrse with defendant, also involving unusual sexual activities; plaintiff iqviting her roommate to the hotel suite to engage in se>tual activity with the defendant; and plaintiff remaining in the hotel while waiting for the defendant to return the fol(owing morning after the alleged battery occurred. Defendant proffers that his touching of plaintiff, a prostitute, in the context of a night of sexual activity, cannot be deemed offensive, thus plaintiff s claim for battery against the defeedant should be dismiswd In opposition, plaintiff asserts that the material elements of all the causes of action, including battery, are clearly stated within the complaint, Plaintiff does not specifically respond, Qn the merits, to defendant s argument that under the factual scenario presented in this case his touching of the plaintiff was not offensive. The Court finds defendant s arguments to be availing and concludes that the allegation that defendant s touching of plaintiff was offensive, meaning wroqgful under all the circumstances, a necessary condition to sustain a charge of battery, is not supported by the complaint. Even affording t h e plaintiff the benefit of every favorable inference (see Leon, 84 NY2.d at 87-88), a review of all the allegations in the complaint and in light of the circumstances of the entire encounter, plaintiff s allegations that defendant s conduct in touching the Plaintiff Page 4 of 10 - [* 5] and pulling her out of bed in order to have sex with the Plaintiff (complaint, 17 26-29), are insufficient to state a cause of action for battery. Since plaintiff s allegations about defendant s .- - ~- . - . . . . .. . . conduct do not present a cognizable legal theory, the first cause of action for battery shall be dismissed. To sustain a claim for assault there must be proof of physical conduGt placing plaintiff in imminent apprehension of harmful contact (Holtz v Wildeustein & Co., 261 AD2d 336,336 [ l s t Dept 19991). Plaintiff s account of her encounter with defendant contradicts arly claim of imminent apprehension of harmful contact. Throughout her time with defendant, she never claims that he threatened her with force, Her claim that she was afpaid to leave the hotel room .. because she feared that the Defendant would.attsmpt td I will, is belied by her voluntary conduct from even,ing through thg following m9rnit-Q of staying ip , be hotel suite and, rrotably, she vQluntarily hait[edJpfor th ? 7 - efendant to retucrt leaving the hotel when she awoke and found him gonk (cbqplaint, T[Tf 30, 32). Mer claim of I. aSsault, in her own words, is contradicted and not supported by the allegations in the complaint, I > - and hence, the second cause of action for assault shall be dismissed. A A i i . . n # A plaintiff assertipg a common-law claim for fa1 that the u endant intended to confine the plaintiff, that the p h i nscigus of the confinement and did not copsent tci the cqfinement, and that the confi was not othehisig, privjleged (Martinez v City o Schenectady, 97 NY2d 78, 85 [2001]) f laintiff clgit ns that Defendant , , confined the Plaintiff in an area where she could not leave Her entire description of the setting and events of the encounter with defendant never suggests confinement (Complaint, r[ 50)) ACcQrdingly,the third cause of action for false imprisonme t shall be dismissed. I ~ The tort [of intentional infliction of emotional distre and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal coonection between the conduct 3rd injyr ~ severe gmotiqnal distress (Howell v New York Post Co., 81 NY2d 1 I$, 121 [1993]). The first ,,., - .. - [* 6] element, extreme and outrageous conduct is a "strict standard" (Murphy v American Home Prods. CQIP., NY2d 293, 303 [1983]). "Liability has been found only where the conduct has 58 , . .. . .. . . .. . . . .. . . . . . . . . . . .. . .. . - .. - . . . .. . been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Restatement (Second) of Torts 5 46, Comment CY), Even ignoring her own voluntary role in the events, plaintiff alleges conduct that might be illegal or, at least, offend some commueity standards, but does approach the level of outrageousness or extremity necessary for liability (see Marmelstein v Kehillat New Hempstsad: The Rav Aron Jofen C~rnmimity Synagogue, 11 NY3d 15 [2008] [WhFre a rabbi initiated a three-and-a-half year sexual relatiohship with a congregant who sought him Qut for CoGiiseh-ig b n a vari'ety-of' - personal, legal and financial problems, the dismissal of her cause of qction for intentional 7 h L + L I Siiarez v Bakalcpkki 66 AD3d 41 9, 41 infliction of emotional distress ~ a s ~ a f f i r m e d ] ; 20091 [Where a physician used vulgar language on an emer cy room discharge form submitted to plaintiff's employer, the conduct was "extremely offensive and bizarre, [but not satisfy the requirement of outrageous csnduct . "I) action for intentional infliction of emotional distregs it] does dismissec;l. IS Therkfore, plaintiff's fourth cause of Sanctions Thg Court now turns to the portiqn of defendant's motio urquant to 22 NY 1 1, seeking the impoSition of sanctions against plaintiff and her altbrney on the ground that 1 plaintiff's third and fourth causes of wtion were brought primarily to harass or injure him. Part 130 of the Rules of the Chief Administrator permits courts to sqnctioh an attorney and/or a party for engaging in frivolous conduct, and such conduct is frivoloh if it is' ( I ) "completely without merit in Igw"; (2) "undertaken primarily to.,, harass or maliciou ure another"; or (3) "a$sert[ing] material factual statements that are false" (see 22 NYGRR 9 130-1.1; TQvella v Tavella, 25 AD3d 523, 524 [ISt Dept 2006]), Defendant points to, intar alid, plaint , >" ( I ) of leaking an unsigned version of the complaint to the New Ygrk Post before filing it; (2) the Page 6 of 10 . . ,. [* 7] salacious descriptions of the defendant in the complaint; (3) plaintiff's various interviews and press conferences, as evidence of plaintiff and her attorney's bad faith. Moreover, the , . . . . . . - .. .- - . .. , . . . . . . , , , ,# .... -- .. . . - . . complaint's request for a minimum of $5,000,000 in compensatory ,damages, defendant avers, also evidences plaintiff's intent to sensationalize this case in an effort to harass defendant Defendant is only seeking sanctions against plaintiff and her attorney for the causes of action for intentional infliction of emotional distress and false imprisonment. At this time, the Court exercises its discretion to impose sanctions on the plaintiff qnd her attorney for bringing the aforementioned causes of action because they are completely without merit in law and were undertaken primarily to harass or malioiously injure the defendan ?ave//a v Tav.&, 25 AD3d 523, 524 [ I s t Dept 2006]), and cgyses of action will not be tolerated by tois Court at plaintiff and, her The Court I attorney's intentional appeal to the media, inclu g a press c&&&cq on the ste$s of the Supreme Court building on the daft" of the cburt appearance, and p to embarrass the defendant in front of the media in the courtroom , / defendant's absence from the Court on the date of oral argument, k n w i n g that it is carnmon t pllaihtiff's miotivation practice in civil Wscs for only attorneys to appearyis further evidenqe f4r maintaining two frivolous causes of action was to harass and maliciously injure the e, a+j the Court, at the defendant Mpre'over, both the defendant, prior to the court appear ' appearance, gave the plaintiff, who I ' was present in court, gn opportunity to withdraw the complaint or any of the causes of actisn therein, but plaintiff's counsel declined to d 9 so, and vehemently insistdd that the complaint prope'rly pleaded the causes Of action fgr intentional infliction of emotional distress and false imprisonment. The condbct of plaintiff is sanc < I for asserting and maintaining two friJolous causes of action, and th 1 has crossed the line from zealous advocacy to that which is sanctionable under 22 NYCRR 5 I 130-1.1 Accsrdingly, plaintiff Angelica, &ora 1 and her attorney-vr.,R&kt P a w 7 nf I I? Anthony Evans, Jr,, [* 8] re each her by sanctioned in he amount of $500.00 and plaintiff is also responsible for Es compensating the defendant for his reasonable attorneys fees and costs incurred in the herein .. . . -- _ . _ . . . . - . .... ... - . matter Plaintiff s Motion to Disqualify - Mot. Seq. 003 The disqualification of an attorney is a matter that rests within the sound discretion of the C O U ~ ~C o l u m b ~ s ( Collstr. Co., lnc. v Petrillo Bldrs. Supply C o ~ p .20 AD3d 383, 383 [2d , Dept 20051). A party s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted . . (Campolongo v Campolongo, 2 Ab3d 476, 476 [2d Dept , I .. 20031) Plaintiff claims that, after communicating with a company ass she was directed to a California lawyer, who, her to J in tu rn, directed defendant s New York counsel. In her Conversation with Burstein, he allegedJyloffered her -, I r I < mohey for any inconvenience that the Defendant caused (Cecora Aff , 7 6 ) Later, she claims > > that she received money in an envelope bearing the name of Burstein s firm. Defendant then Id continue a re1 I,ed her, apologized for his behavior an , 7 9) f in order to kee Since Mr. Burstein was attemptin Defendant s inappropriate behqvior , , [he as injected himself into this liti Irkaly witness on my behalf (id.,7 14). ,1 Plaintiff confuses the issue by briefly discussing whether Burstein has interest because of a prior relationship with defendant, an irrelevant question, when the i$sue is the lawyer s prospective role a$ a witness. According to Rhle 3.7 (a) of the R Professional Conduct (22 NYCRR 3 1200 O ) , [al lawyer shall not ddt as a t tribunal in a matter in which the lawyer is likely ts be a witness on a significant issue Qf fact, with certain exceptions DiSqualifidatioh is p b p e r where: defendant s counsel played a vital role in the final settlement 1 . [* 9] ., . . negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the ..underly.i~-~.isput~, defendant s counseI..was..li~e~l_y_tda.key,. that be. witness at trial, and that his proposed testimony would b e adverse to his client s interests (Warshaw Burstein Coheii Schlesinger & K u ~ LLP v Longmire, 82 AD3d 586, 586 [Ist Dept 201 I]). , Burstein contends that his client :- .. . .. ~ .. .. . . will not be calling him as a witness, failing to note that plaintiff asserts that she will. More significantly, he claims that the proposed testimony concerns confidential settlement discussions; and/or [I the proposed testimony concerns factual matters that are not in dispute and the truth of which can be stipulated to, e g , the existence and amount of any alleged payment to the Plaintiff (Burstein Affirm., 7 4) PIa int iff ide nt if ies co u ?IS e I- as Defe nd a nt S New Yo rk At t o rr~ J ud d Burst e in ( Cecd ra 6y Aff , 7 3) Their conversation, the result of her seeking to address an incident of improper I _I r3? wnduct from t h e Defendant toward me on March 15, 201 1, : took the form of ne$o 2). Burstein thanked her and offered her money, which she accepted ( i d , 77 7-8) hDefendant then called plaintiff to apologize for his conduct ( ~ ,d 9). Plaintiff s choice to pursug defendant 7 after receiving his money and his apology, does not alter the character of Burstein s initial role Burstein, after being sought out by plarptiff, tried bargaining with her. He canpot 11 testify about those discussions (see CPLR 4547 [ Evidence of (a) furnishing, or offering or promising to furnish, or (b) accepting, or offering or promising to acGept, any valpable /* consideration in compromising or attempting tp komprornise a claim which is disputed as to either validity or amount of damages, shall be inadmissible as proof of liability for or invalidity df the claim or the amount of damages. Evidence of an,y conduct or statement made during compromise negotiations shall also be inadmissible ]). Therefore, plaintiff s motion to disqualify defendant s counsel is denied. 1 CONCLUSION Achrdingly, it is ORDERED that the portion of defendant s motion to dismiss the complaint, pursuant to _ I + Page 9 of 10 P I [* 10] CPLR 321 1(a)(7), is granted and the complaint is dismissed in its entirety, with costs and disbursements to defendant as taxed by the Clerk of the Court upon. submission of an .", /., . . . .. . ... ,. I r m ,. , , I' " 18 - L ...... 2 . . appropriate bill of costs; and it is further ORDERED that plaintiff's motion to disqualify dgfendant's counsel is denied (Mot, Seq. 003); and it is further; ORDERED that the portion of defendant's motion to award sanctions, pursuant to Section 130-1.1 of the Rhles of the Chief Administrator, is granted, and plaintiff Angelica Cecora and her attorney Robert Anthony Evans, Jr., Esq are each hereby sanctioned in the amount of $500.00 and defehdant's reasonable attorneys fees aye impwed on the plaintiff, and . it is further - L - - . ORDERED that the issue of defendant's reasonable.attorne ... .., . . . .A*.. fees incurred in the ORDERED that csunsel for defendant is directed 'to serve a ~ o p y this Order with of / I I I Notice of Entry on the Special Referee Clerk of the Motion Suppdrt ce (Room 119) to r I arrange a date for the reference to a special referee, and ORDERED th,;lt,cwnseI fgr dgt,pndant is dirqcte I Notice of Entry upon the plaintiff a accordingly, within 30 days of entry, This constitutes the Decision and Pated! 3- 3 6 -1 3 Check if apprbpriate; : ge 10 of 10 it is furthqr, pr;Ug ? copy of this Qrder with i I herein action is referred to a Specid qeferee to hear and determine: and it! is f,urt(per, I -

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