Doe v. Bin Fahd Alsaud et al, No. 1:2013cv00571 - Document 37 (S.D.N.Y. 2014)
Court Description: OPINION. For the reasons set forth in this Opinion, Defendant Saudi Oger's motion to dismiss is granted. The FAC's First, Second and Third causes of action against Saudi Oger are dismissed without prejudice with leave to replead within twenty days. It is so ordered. Re: 23 MOTION to Dismiss THE FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(b)(6) filed by Saudi Oger Ltd. (Signed by Judge Robert W. Sweet on 4/3/2014) (rjm)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRI OF NEW YORK -------------- ----------------- --x JANE DOE, Plaintiff, -against- OPINION HRH PRINCE ABDULAZIZ BIN FAHD ALSAUD, SAUDI OGER LTD, MUSTAPHA OUANES, Defendants. --------- ------------- ----X A P PEA RAN C E S: At 13 Civ. 571 for Pia inti MORELLI ALTERS RATNER, 950 Thi Avenue, 11th oor New York, NY 10022 By: Martha M. McBrayer, Esq. Jeremy J. Troxel, E Attorneys for Defendant Saudi QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Avenue, 22 nd New York, NY 10010 Michael B. Carlinsky, Rex Lee, Esq. William A. Burck, Esq. Nicholas A.S. Hoy, Esq. Sweet, D.J. Defendant Saudi Oger Ltd. pursuant to rei "Plaintiff") for "FAC" ) led by plaintiff Jane ilure to state a cia f can be granted. Based upon t below, udi OgerU) has moved ral Rule of Civil Procedure 12 (b) (6) to dismiss the First Amended Complaint Doe (" motion is granted, upon whi conclusions set h the FAC is dismissed. Prior Proceedings Pia original complaint on January 25, iff filed 2013. On February 14, 2013, PI service claiming to have se iff filed an affi t of "Saudi Oger Ltd d/b/a Hari Interests" on February 5, 2013. Non-party Hariri Interests moved to dismiss the compla on April 1, 2013, pursuant to Federal Rules of Civil Procedure 12 (b) (2), 12 (b) (5) and 12 (b) (6). In her Hariri Interests' argument opposition, Plaintiff conceded t that it was not a d/b/a of Saudi Oger was "persuas " and cross-moved to amend her complaint to remove Hariri Interests as a defendant. Plaintiff also admitted that "lacks any evidence suggesting that Saudi Oger knew or should have known of 1 fendant Mustapha Ouanes' Defendant")] propens ("Ouanes" or the "Individual ies before he was hired," and therefore proposed to withdraw her negligent hir intiff compla claim. On May 2, Hariri Interests stipulated to against ri Interests with iff fi smiss the udice. the FAC on May 7, 2013, removing Hariri Interests from the lawsuit and withdrawing the negligent hiring claim inst Saudi Oger and t Prince. Allegations of the FAC The FAC contends the llowing all ions. On January 26, 2010, defendant Ouanes invited Plaintiff and her in ~ at le friend to accompany him from a lounge West Village to his hotel room at the Plaza Hotel. (FAC 24.) At about 5:30 a.m., Plaintiff was drugged by Ouanes (id. ~ 29), and awoke some time later to "realize [Ouanes] was raping her" (id. at ~ 30). In February 2012, after a two-week trial in New York (Manhattan) Cr 1 Court, Ouanes was convicted of rape and sexual abuse, and was sentenced to ten in prison. (Id. at ~~ 54-55.) 2 defendants Saudi Oger Ouanes was a former empl HRH Prince Abdulaziz "Pr saud (the n ") at the time of Plaintiff's injury and was living in New York temporarily at the Plaza Hotel as an employee of Saudi 's "VIP unit," which served as entourage. (Id. Prince's traveling r "was and remains a at '3l'3l 4, 6.) S ia and one of the leading global corporation based in S construction, facilities management, real estate development, structure project deve Ouanes was a "trained ical engineer" whose specific duties as an employee ensuring that the "climate" of the floor inhabited by t properly regulated. providers in the world," (Id. Prince at the Plaza Hotel was at '3l'3l 4-5.) In addition, Ouanes' duties included "luring unsuspect women" to "gratify the sexual pleasure" of the Prince s entourage. least three employees of S (Id. at '3l 5.) At Oger's VIP Unit were with Ouanes when she was raped in Ouanes' room (Id. '3l'3l 2-3, 25-29), and DNA evidence suggests Ouanes was not the only Saudi employee who sexually assaulted the Plaintiff on or January 26, 2010. ¢ '3l'3l 16, 50.) 3 r The FAC asserts causes of action for negligent supe sion ~~ at 58-69), negligent retention (id. at 70-84), and respondeat superior (id. at ~~ ~~ 85 89) against Saudi Oger. In support of these claims, the FAC alleges that Saudi Oger "knew or should have known of [Ouanes'J predisposition to sing women, his vi ent propensities, and of his status as a ~ sexual predator." (Id. at 13.) The Applicable Standard On a motion to dismiss pursuant to Fed. R. Ci v. P. 12 (b) (6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. lls 1993). ar Mol v. "The issue ar is not prevail but whether the to support the If cia c 12 Corp., whether imant Coun ty F . 3d a aintiff of Suffolk, 261 F.3d 179, 187 Villager Pond, Town of Darien, 1995), 14 cert. denied, v. 519 U.S. 808, (1996)). 4 ---_._._--_.. __ ¢........ ¢.-._--_. __ --_._----- . 11 7 4 will (2 d Ci r . ult ly is entitled to offer evidence Real Estate Solutions, Inc. 11 7 0 , v. N.Y. (2d Cir. 2001) 56 F.3d 375, 117 S. Ct. 50, First 378 136 L. Am. ing (2d Cir. Ed. 2d To 12 (b) (6), survive a motion "a complaint must accepted as true, to (2007)). This plaintiffs "nudger] plaus need their 544, is not only claims le." Twombly, pursuant contain sufficient 570, 556 U.S. Iqbal, 1937, 1940, 173 L. Ed. 2d 868 550 U.S. smiss to factual Rule matter, 'state a claim to relief that is plausible on its face.'" Ashcroft v. Twombly, to (2009) 127 S. 663, 129 S. ct. (quoting Bell Atl. Corp. v. ct. intended to allege cts across 662, the 1955, be an 167 L. onerous s ficient line from Ed. 2d 929 burden, as order to conceivable to in 550 U.S. at 570. Respondeat Superior Is Not Adequate1y A11eged To state claim for respondeat superior, a plaintiff must plead facts showing, among other things, t the tortious conduct causing the injury was undertaken within the scope of the employee's duties to the employer and was thus in furtherance of t York ty employer's interests. See, e.g., K.I. v. New Bd. of Educ., 256 A.D.2d 189, 191 (1st Dep't 1998) (noting no respondeat superior where tortuous conduct was outside of scope of volunteer's duties). "An employer will not be held liable under [the doctrine of respondeat superior] for actions which were not taken in furtherance of the employer's 5 personal motives." Galvani v. Nassau Cty. Review " omitted) 242 A.D.2d 64, 68 Police Indemnification (2d Dep't 1998) (citation Ouanes' own deplorable motivations were not part of any conce duty he had to Saudi Oger. For this reason, the v. Prodigy Servs. Co., 944 dismissed. See claim must F. Supp. 326, 329 (S.D.N.Y. 1996) court ta for wholly aken by the empl and which were (Sotomayor, J.) ("[WJhere a s as true all the facts alleged by plaintiff and the conduct complained of cannot be considered as concludes t a matter of law within the s must dismiss of employment, then the court complaint for fai (citations to state a claim.") tted) . "New York courts consistently have held that sexual misconduct and related tortious r arise from personal motives and do not further an empl committed 's business, even hin the employment context." Ross v. Mitsui Fudosan, 2 F. . 2d 522, 531 (S.D.N.Y. 1998) omitted). No decision in New York has which the doct en cited to date in ne of respondeat superior was held to apply to sexual assault. See 2d 505, 516-17 (citations rno v. Corr. Servs. (S.D.N.Y. 2004) found no vicarious Ii ., 312 F. Supp. ("New York courts have repeatedly ility for claims invol 6 ng sexual misconduct, including sexual assault.") (citations omitted); Haybeck, 944 F. Supp. at 330 (employee's failure to disclose HIV-positive status to plaintiff was not attributable to employer); Judith M. v. Sisters 96 (N.Y. 1999) Cha ty Hosp., 715 N.E.2d 95, (holding that a hospital orderly who was tasked with bathing the p intiff was acting outside the scope of his duties when he sexually abused her while doing so); Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 402 (2d Dep't 2004) (dismissing complaint alleging employer liability for rape of child patient by hospital security guard) 206 A.D.2d 839, 839 (4th Dep't 1994) i Joshua S. v. Casey, (upholding dismissal of respondeat superior claim for sexual abuse of a child by a priest); Koren v. Weihs r 190 A.D.2d 560, 560-61 (1st Dep't 1993) (dismissing claim alleging employer liability for hospital psychotherapist who engaged in "sex therapy" with a patient) . In addition, the FAC does not contain allegations that establish that the assault furthered Saudi Oger's business interests, even if those interests somehow included luring women to the Plaza Hotel for the benefit of the Prince and his entourage. If Plaintiff had suffi ently pleaded that Saudi Oger had direct knowledge of prior sexual misconduct on the part of Ouanes, which she has not, that still would not give rise to 7 ility in the absence of an allegation respondeat superior 1 that the misconduct was part of any actual responsibility Ouanes had to Saudi Oger. rd & Son, Sclafani v. PC Ri S u pp . 2 d 423, 4 4 7 4 8 ( E . D. N . Y. 2009 ) (" I f P credited, a rational jury could find t 668 F. iff's facts are Piscopo's assault was le, but a rational jury could not find t reasonably fore the assault was within the scope of Piscopo's employment at PCR. t occurred in the PCR parking lot before Although the as work, the assault omi tted) ; 0, no way further PCR's business.") 312 F. Supp. 2d at 517-18 of these principles is not alt (ci tat ("The appli 1 merely because CSC alle had notice of Correa's propensity to commit sexual acts . . 'What is reasonably foreseeable t context of respondeat superior is quite a different thing from the foreseeable unreas sk of harm that Ils negligence. When we talk of vicarious liability we are not looking for the empl fault but rather for risks 's may fairly be regarded as typical of or broadly incidental to the enterprise [ ting Cronin v. Hertz Corp., employer] has undertaken.''') 818 F.2d 1064, 1068 (2d Cir. 1987)). Plaintiff has prohibit respondeat supe that "New York law does not claims in cases invo 8 sexual sconduct" (Opp. at 9-10), but no authority to support argument or decision ho an employer liability for sexual assault under respondeat s rior has been cited. The also contends that the pre aintiff s cited by Saudi Oger do not apply to her claim because this case involves an "unusual" situation in which the empl iness purpose-to help S e's sexual misconduct had a Oger's client, the Prince, women. However, the Plaintiff must plead more than conclusory and present s all that Ouanes' sex cr ent job and s. See Sgaliordich v. cts to create a reasonable Oger's business included oyd's Asset Mgmt., No. 1:10 cv 03669(ERK), 2011 U.S. Dist. LEXIS 12183, at *12 8, 2011) (granting motion to dismiss permit "a reasonable inference that (E.D.N.Y. Feb. cause complaint did not [employees were] acting consistently with [their] normal job duties with the purpose of ring [the employer's] interests."). However, the support Plaintiff alleges is merely the accusation itself. In particular, Plaintiff alle ¢ s: "At all relevant times herein, Defendant Mustapha Ouanes was employed by Saudi Oger's 'VIP' unit, which exi the purpose of travelling with and catering to needs and desires of [the Prince]." (FAe ~ 6 (formatting altered from origi ).) 9 ¢ "This lawsuit arises out of an ongoing wrong scheme by [the Prince] and Saudi Oger, Ltd. to harass and se women. fendants [the Prince] and Saudi Oger knew or should have known of Defendant Mustapha Ouanes' predisposition to abusing women, his violent propensities, and his sexual harassment of women." ( . at ~ 12 (formatting altered from original).) ¢ Defendants [ Prince] and Saudi Oger . encouraged [Ouanes'] misconduct so that other employees could similarly abuse, sexually harass and/or molest unsuspecting women lured by Defendant Mustapha Ouanes to [ Prince's] rooms at The Plaza Hotel under Ise pretenses." (Id. at ~ 14 (formatting alte from original).) While plaintiff cites to numerous other allegations the Amended Complaint in support of her arguments, those al in substance are all identical to the ones set These assertions cIa ions rth here. 11 short of "nudging [Plaintiff's across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Noticeably absent from the FAC is any fact that could provide a basis from which to infer that Saudi Oger's business, and Ouanes' job duties, involved methodically luring and drugging women so that they could be his entourage. If the PIa by the Prince and iff is correct that her conclusory assertions are sufficient to state a 10 im, then any employer could be subject to carious liability for sexual assault based on an allegation that the employer's business involved facilitating rape. Plaintiff's contention is also unpersuasive cause under her theory, Ouanes' crime (rape) has not been shown to be within the scope of his purported job (to for others). In Haybeck, sex chat rooms. and drug women 944 F. Supp. 326, the employer operated employee-who was HIV positive-contacted the plaintiff on one of those s s and lured her into having sex. Then-Judge Sotomayor dismissed t complaint, reasoning that "even if [the employee's] conduct arose in part out of his intent to further t [employer's] business. sexual relationship with plaintiff in that his . arguably encouraged plaintiff to use [more of the chat rooms], re is no 'business purpose' which 'alone' would have compelled [him] either to have sex with plaintiff or to hide from her AIDS." fact that had . at 331. The Plaintiff finally contends that whether Ouanes' misconduct was within the scope of s employment is a question for a jury. However, respondeat superior claims are also dismissed at the pleading stage. See, e.g., Haybeck, 11 944 F. Supp. at 331 ); Woods v. (dismissing vicarious liability c CVS, 2013 U.S. Dist. LEXIS 58764, at *7-8 (S.D.N.Y. Apr. 19, 2013) inst [employer] (finding that "sexual assault cla cannot survive either a motion to di summary judgment. If) (internal citat ss or a mot t for ). The issue is not whether Ouanes' assault of Plaintiff was within his dut r, s to whether Plaintiff adequately alleged that those duties included, as she claims, In arguing that this motion the facilitation of sexual iff relies on Rivello v. raises questions for a j Waldron, 391 N.E.2d 1278 (N.Y. 1979), Patterson v. Khan, 240 A.D.2d 644 (2d Dep't. 1997), and Buck v. Zwelling, 272 A.D.2d 895 (4th Dep't. 2000). None of these cases, however, involved the fundamental suffi rel st ently alle what the employee's job was. Plaintiff also s on Goldwater v. Metro-North Commuter R.R., 101 F.3d 296 that decision did not involve a claim for (2d Cir. 1996), vi of whether the plaintiff had s li lity. Plaintiff alleges that Ouanes' duties included women to the plaza Hotel for the benefit of t and s entourage. plaintiff has not alleged any 12 Pr s to support this accusation, and it is therefore "naked assertion" id of "further factual enhancement" that a cause of action susta 550 U.S. at 555; see also r Iqal and Twombly. asquez-Spillers v. Broadcasting Corp., 51 A.D.3d 427, 427-28 ecting "conclusory" al aga sufficient to lS In Twombly, ni (1st Dep't. 2008) tions of vicarious liability an employer arising from an intentional assault committ by its employee). Negligent Supervision Or Retention Has Not Been Adequately Alleged In New York, "a claim supe ligent hiring, sion or retention, in addition to the standard elements of negli , requires a plaintiff [to J show: tort feasor injury pr that the the defendant were in an employee-employer relationship; the empl (1) (2) that the employer knew or should have known of ,s y for the conduct which caused the (3) that the tort to the injury's occurrence; was committed on v. City of New York, chattels." 121332, at *34 employer's premises or with the employer's 2010 U.S. Dist. LEXIS (S.D.N.Y. Nov. 15, 2010) quotations omitt ). 13 (cit ons and internal The FAC does not contain a factual all have known of the ,s ch caused the injury r to the t Saudi Oger "knew or s y for the conduct tion showing injury's occurrence." Biggs, 2010 U.S. Dist. LEXIS 121332, at *34 " [dJ rnal quotation mark omitted). The FAC asserts that loyment, Defendants . ng the course of his should known of [Mr. Ouanes' J predisposition for abusing women, his predator, . knew or lent propens s, and his status as a sexual it." (See FAC t did nothing to Ouanes' alleged Notwithsta <J[ 13.) sposition for sexual violence, the FAC's allegation t t background ck would have reflect the same" (id. FAC does not allege (i) a single "raj reasonable <J[ 12), t or act or allegation of sexual misconduct committed by Ouanes; or (ii) a fact suggest that Saudi r knew or should have known of any such pr acts. The in the FAC of factual allegations concerning Ouanes' propensity for sexual assault Oger's knowledge is fatal to Plaintiff's negli warrants dismissal. See Twombly, claim and 550 U.S. at 555 ("[AJ recitation of the elements of a cause of action see also Mitsui Saudi formulaic 11 not do."); , 2 F. Supp. 2d at 532 33 (S.D.N.Y. 1998) 14 ("Conclusory all ions of ligent supe sion are insufficient to overcome a motion to dismiss.") omitted); Doe v. (citation thrie Clinic Ltd., No. 11-cv-6089T, 2012 U.S. Oist. LEXIS 20507, at *19 (W.O.N.Y. Feb. 17, 2012) ("In instant case, there is no credible, nonconclusory allegation that [the employer] knew or should have known that [an employee nurse] would breach her duty of confidential any has ient's pr health in y with respect to rmation. Accordingly, plaintiff igent hiring."); Herskovitz to state a claim for v. Equinox Holdings, Inc., No. 151065/2013, 2013 N.Y. Misc. LEXIS 2371, at *22 (N.Y. Sup. Ct. June 3, 2013) (allegation defendant "knew or should have known of [the employee's] propensity to commit injury" deemed conclusory insufficient to support negligent hiring claim). New York courts have held in employee sexual misconduct cases that an employer is only liable negligent supervision or retention if it is aware of specific prior acts or all ions against t employee. See K.I., 256 A.D.2d at 191-92 ("[V]ague allegations that the teachers 'encouraged' plaintiff's personal relationship wi suffice to impose liabili been foresee on the Boa [the emp , as it wou do not not have Ie to the teachers that [the employee] would harm 15 plaintiff."); Jessica H. v. ox Holdings, Inc., No. 103866/08, 2010 N.Y. Misc. LEXIS 1215, at *13 (N.Y. Sup. Ct. Jan. 4, 2010) (" [A] negligent retention theory is not a sexual case, unless able in employer had notice of prior allegations of an employee's improper conduct and investigate the allegations.") iled to tation omitted) . or misconduct, moreover, must be of the injury; kind that same neral, unrelated or lesser allegations of prior wrongdoing are insufficient. See Anderson v. Adam's Ma Ho s & Resorts, No. 99 1100, 2000 U.S. App. LEXIS 6949, at *3, *7-8 against supe (10th Cir. 2000) (prior sanctions sor for sexually harassing other employees by attempting to te them did not establish his propens commit a sexual assault, where pla y to iff failed to allege that the employer \\ reason to know that [the supervisor] would cause the kind harm alleged in t No. 11 Ci v. 479 s case"); Bowen v. Pa (GWG), 2012 U.S. *42 (S.D.N.Y. Aug. 29, 2012) bleeding head injury of cer. st. LEXIS 123058, at "[a doctor (allegation employee] stood idly by and watched an ck, te with a severe and maliciously beaten by a correction does not show that [the doctor] was predisposed to aching any duty to medical care") 16 ernal quotation marks omitted); Milosevic v. O'Donnell, 89 A.D.3d 628, 629 (1st Dep't 2011) a "culture" of alcohol use at (allegations company events insuffi ent to show that employer "was aware of the CFO's violent propensities when intoxicated or of the lity of an assault"); Naegele v. Archdiocese of N.Y., poss A.D.3d 270, 270 (lst Dep't 2007) ("conclusoryall "priests accept money and things of value from parishioners" were insufficient "to show t knew or should have known of [ the [frau~l 39 ions" that ir the Archdiocese priest's] propensity to commit alleged"). In addit , the FAC does not allege a ct to show that Saudi Oger knew or should have known of any prior assault. See Haybeck, 944 F. Supp. at 332 ("What plaintiff allege, however, is that [t ils to employer] knew that [its employee] was having unprotected sex with customers without informing them that he carried the AIDS virus./I). Plaintiff cannot cure that fatal ficiency by suggest that a "reasonable background check" would have revealed Ouanes' predispos assault se no s, specif to what such a background a matter of law, Saudi or otherwise, are alleged as k would have in r was ion for sexual reveal r no duty to conduct a background check of Ouanes. See Yeboah v. Snapple, Inc., 286 17 As A.D.2d 204,205 (1st Dep't 2001) ("Notwithstanding defendants' failure to investigate [its employee's] cr background, liability cannot charged to the corporate defendants on the ground of igent hiring and supe nal sion. An employer is under no duty to inquire as to whether an empl has been convicted of crimes the past.") Plaintiff's neg I also (citation omit ) . sion and retention cl il because the underlying tort did not occur anywhere near Saudi Oger's premises or with its ~~ tels as alleged by PIa iff. Instead, as alleged (FAC 24, 30), the sexual as t occurred at the Plaza Hotel. In Haybeck, for example, court dismissed the plaintiff's even though the plaintiff met the empl owned by i nt supervision claim e on a sex chat room employer-because "the complained of, r it is the act of sex or [the dis 's] failure to ose his HIV status, unquestionably took place outside the employer's ses and without the empl r's chattels." 944 F. Supp. at 332i see also Ehrens v. Lutheran Ch 236 (2d claim aga r. 2004) (affirming dismissal of , ligent supervision when minister's acts of sexual misconduct against plaintiff occurred off church premises); Board of 385 F.3d 232, . of Greenport Union Free Sch. 18 "John Doe 1" v . st., 100 A.D.3d 703, 705-06(2d Dep't 2012) (dismissing negligent hiring and supervision claims where the school employee's sexual misconduct occurred "off of school grounds"); K.I., 256 A.D.2d at 191 (same); Milosevic v. O'Donnell, No. 114612/09, 2010 N.Y. Misc. LEXIS 4848, at *4 A.D.3d 628 (N.Y. Sup. Ct. June 17, 2010), aff'd, (1st Dep't 2011) 89 (dismissing negligent supervision claim where employer "neither owned nor operated the premises in which plaintiff allegedly was injured"). In her opposition, Plaintiff concedes that she has no basis to allege that Ouanes engaged in any prior bad acts. (See Opp. at 4 ("Plaintiff maintains that Saudi Oger knew or should have known that [Mr. Ouanes] was prone to harming [Plaintiff] because he more than likely had behaved similarly in the past.").) If Ouanes had not committed any sexual assault before, then, as a matter of law, Saudi Oger could not have known that he had a propensity for such misconduct. Citing Jones v. Trane, 153 Misc. 2d 822 (N.Y. Sup. Ct. 1992), Plaintiff suggests that whether an employer knew or should have known of its employee's predisposition for wrongdoing is a question that is not appropriate for resolution on a motion to dismiss. That decision, however, did not concern whether the plaintiff had sufficiently pleaded the employer's actual or constructive 19 knowledge. It instead turned on whether the employer (a church) had rst Amendment protection against the pla iff's claims. Id. at 830. Plaintiff a can still be infe were in the bus s that notice of Ouanes' alleging that: ss a sposition (i) Saudi Oger and Ouanes ng and abetting sexual olence; (ii) that at least t other Saudi Oger empl s were present the night Ouanes and assaulted Pla (iii) and that iff; DNA evidence suggests that other Saudi Oger her too. (Opp. at 4.) Pla iff has not alleged any other men who were 'll'll 25-29.) In night that Ouanes sexually assaulted P to Ouanes loyees. (See FAC , she alleges that one of them was an employee concern actions that other, unidenti the reprehens cts showing that the sent were Saudi Oger (See id. at 'll 26.) of the Pr allegat s had raped ility of the sexual ass r, se allegations men took on the same intiff. However, despite by Ouanes, the do not relate to any prior acts by Ouanes, or even elf, and thus they do not show that Saudi Oger knew or should have known before the attack that Ouanes was predi to sexual violence. 20 P iff also argues that claims for negligent supervision and retention do not requlre a plaintiff to aile speci by the employee, but no authority is s c cited for that propos ion. Such claims require specific allegations of 's past wrongdoing to provide a basis from which to in loyer's knowledge. See Krystal G. v. r Brooklyn, 34 Misc. 3d 531, 538 (N.Y. Roman Catholic Diocese Sup. Ct. 2011) (sustaining assault related claim where school administrators sought to r employee for excessive physical contact with children); Lee v. Overseas Shipholding GrouPr Inc., No. 00 CIV. 9682(DLC), 2001 WL 849747, at *10 (S.D.N.Y. July 30, 2001) (finding that the pIa inti alleged prior complaints made personally to management employee misconduct); Sharp v. Town of Greece, No. 0 (W.D.N.Y. May 3, 2010) 6452, 2010 WL 1816639, at *8 (allegations employer hid evidence of employee's reckless behavior); Vione v. 973, 979-80 (N.Y. Sup. Ct. 2006) (pIa warned for two and half years of empl 1, 12 Misc. 3d iff alleged employer 's imp r actions). In support of this argument, Plaintiff relies on Sharon B. v. Reverend S., 244 A.D.2d 878 (4th Dep't 1997). decision involved a New York state procedure-N.Y. CPLR § 3211(d) does not apply here. See id. at 879. While "[n]o statutory 21 requirement exists that with speci ty . . ligent supervis claims be . bare legal conclus and/or factual claims flatly contradicted by documentary evidence should ." Krystal G., 933 N.Y.S. 2d at 523 (citat smissed omitted). Plaintiff's all tions, here, only concludes Saudi Oger knew or should have known before Ouanes' predi ition to sexual violence, t allegation of any past evidence of sexual vi attack of re is no ence. The FAC not contain anything more than bare legal conc Plaintiff contends t opportunity to ta t she should discovery s ions. given an se "almost all of the usive information regarding notice lies within Defendants' [sic] exclus control." (Opp. at 6.) As with respondeat ior claims, courts dismiss ligent supe retention claims at the pleading stage, before above. See Milosevic, ligent hiring] c what (" which may reveal neces to sustain scovery as set 89 A.D.3d at 629 (" ims cannot avoided by ssal of the lation as to tz, 2013 N.Y. Misc. scovery might reveal."); LEXIS 2371, at *24 sion and aintiff's alleged need for discovery, of the r claim for or incidents or other facts ligent hiring, is speculative as it is unsupported by the allegations in the 22 complaint and plaintiff does not submit an affidavit.") (citations omitted). The Plaintiff also contends that there is no requirement that the tort must have occurred on the employer's property and suggests that courts have mistakenly imposed a premises element to negligent supervision and retention claims because they misread a New York Court of Appeals decision, D'Amico v. Christie, 518 N.E.2d 896 (N.Y. 1987). However, in D'Amico, the Court of Appeals explicitly noted that the "duty on the part of an employer to control the conduct of its employee even outside the scope of employment . as formulated in the Restatement, is limited to torts committed by employees on the employer's premises or with the employer's chattels, and similarly would be unavailing to plaintiffs because the accident occurred off the employer's premises and did not involve the employer's property." Id. at 901-02. Moreover, Plaintiff's reliance on Krystal G., 34 Misc. 3d 531, instead of D'Amico is misplaced. There, the court found that negligent supervision and related claims do not require the tort to have been on the employer's premises. Id., at 539. The court reasoned that D'Amico-which reached the opposite result 23 was not controlling because that decision was based on an e ation of the Dram Shop Act, which, in the court's nion, rais issues outside of common law. Id. However, New York Court of Appeal's decision in D'Amico involved several c ims, only one of which was based on the Dram Shop Act. See D'Amico, 518 N.E.2d at 898-99. The remaining claims were decided under common law, 897, 901 02. ng common law negligence. tal G. is thus an outlier on this issue, and the vast wei rity establishes a premises element to negligent sion Lutheran Church, 385 F.3d 232,236 (2d Cir. 2004) dismissal of negl See id. at retention claims. See Ehrens v. nt s (affirming sion claim where sexual assault occurred off premises) . sexual assault Plaintiff also cont effectively occurred on r's "controlled" the floors at the aza Hotel where the attack actually happened. While a ses because Saudi Oger iff cites to numerous allegations as showing "control" (see FAC cncn 4, 9, 12, 14, 17, 24, 62, aza Hotel 79, 86, 87), these allegations assert only was the site of the sexual assault, t 64, el was partially owned by the Prince's cousin and that Ouanes' duties included regulating the temperature on the 24 e's floor. se allegations not suffi allege that Saudi Oger exerci any dominion or control over occurred t Plaza Hotel. Because the attack , not Saudi Oger's premises, Plaintiff's negli supervis and retention claims are inadequately alleged. Plaintiff's Claims For Punitive Damages Are Dismissed Plaintiff see ~~ punitive damages in the FAC (see FAC 69, 84, 90) against Saudi Oger for are available when there is "conduct degree of moral cu conscious disregard at evidences a h lity, is so flagrant so as to omitt (citations ). But as analyzed above, Plaintiff has fail ly allege st for punit LLC v. Allen, 536 punitive a r the rights of others." Evans v. 307 A.O.2d 439, 440 (3d Oep't 2003) St rior supervision and retention claims. Punitive damages i and respondeat s to r underlying claims. Gven such, Plaintiff's ssed. See Ex damages is . App'x 58,60 (2d Cir. 2013) sior Capital ("[AJ request s in New York is nonviable absent a valid claim for compensatory damages.") tations omitted). 25 (internal quotation marks and Conclusion For the reasons set forth above, Oger's motion to dismiss is granted. The FAC's rd causes of action judice with leave to inst Saudi Oger are Saudi rst, Second and ssed without within twenty It is so orde New York, NY April ~ , 2014 ROBERT W. SWEET 26
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