O'Grady v Russian Bath Co. Inc.

[*1] O'Grady v Russian Bath Co. Inc. 2016 NY Slip Op 51267(U) Decided on September 7, 2016 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 7, 2016
Supreme Court, Kings County

Bethany O'Grady, Plaintiff,

against

Russian Bath Co. Inc., d/b/a FOREST HILLS SPA, INC., and SERGEY KALASHNIK, Defendants.



2372/2015



Attorney for Plaintiff

Law Office of Stephen B. Kaufman, P.C.

3397 East Tremont Avenue

Bronx, New York 10461

(718) 822-0500

Attorney for Defendant

The Law Offices of Alexander Paykin, P.C.

350 Fifth Avenue, 59th Floor

New York, New York 10118

(212) 858-9112
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Forest Hills Spa, Inc. (hereinafter FHS), filed on April 15, 2016, under motion sequence number four, for an order: (1) dismissing the first, second, third, fourth and fifth cause of action pursuant to CPLR 3211 (a) (7); (2) granting an award for costs, disbursements and reasonable attorney's fees; and (3) imposing sanctions against plaintiff Bethany O'Grady [*2](hereinafter O'Grady) pursuant to 22 N.Y.C.R.R. 130—1.1.

Notice of motion

Affirmation in support

Affirmation in support

Exhibits A - F

Affirmation in opposition

Exhibits A - B

Affirmation in reply

BACKGROUND

On February 25, 2015, O'Grady commenced the instant action for damage for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Defendants Russian Bath Co. Inc. (hereinafter RBS) and Sergey Kalashnik (hereinafter Kalashnik) interposed a joint verified answer dated April 15, 2015.

By order dated March 11, 2016, O'Grady was granted leave to amend the verified complaint to add FHS as a defendant. On March 21, 2016, O'Grady filed the amended summons and amended verified complaint with the Kings County Clerk's office.

The amended verified complaint alleges seventy three allegations of fact in support of seven causes of action. Only the first five causes of action in the amended complaint are asserted against FHS. The first cause of action is for negligent hiring and supervision of Kalashnik. The second cause of action is for assault. The third cause of action is for battery. The fourth cause of action is for intentional infliction of emotional distress. The fifth cause of action is for negligent infliction of emotional distress.

The amended verified complaint alleges the following salient facts. On March 23, 2014, at about 2:00 pm, O'Grady visited FHS to obtain spa services. FHS assigned Kalashnik as her masseuse. With the knowledge and consent of FHS, Kalashnik made sexually charged threats of imminent offensive touching and then committed an offensive touching of O'Grady without her consent.

MOTION PAPERS

FHS's motion papers consists of an affirmation of its counsel, Alexander Paykin (hereinafter Paykin), an affidavit of a former corporate officer, Boris Borsky (hereinafter Borsky), and six annexed exhibits labeled A through F. Exhibit A is a copy of the amended summons and amended verified complaint. Exhibit B is a copy of the original commencement papers. Exhibit C and D are copies of web pages taken from the New York State Department of State Division of Corporations (NYSDSDC) web site. The web pages reflect that FHS and RBC are both domestic business corporations. Exhibit E is a copy of a New York State Court of Appeals decision in the matter of RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158 [2004]. Exhibit F is an affidavit of O'Grady signed before a notary on July 23, 2015.

O'Grady opposed the motion with an affirmation of her counsel and two annexed exhibits labeled A and B. Exhibit A is a copy of the same affidavit that FHS annexed as exhibit F to its [*3]motion papers. Exhibit B contains three photographic images obtained from FHS's facebook page site purportedly showing Kalashnik performing a massage.

FHS replied to O'Grady's opposition papers with an affirmation of its counsel.

LAW AND APPLICATION

On a motion to dismiss the complaint pursuant to CPLR 3211(a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Persaud v Everest Nat. Ins. Co., —- NYS3d ——2016 WL 4198701 [2nd Dept 2016] citing Leon v Martinez, 84 NY2d 83, 87—88 [1994]). However, "while factual allegations contained in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of truth" (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 194 [2nd Dept 2009]). When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (Kunik v New York City Dept. of Educ.,—- NYS3d ——2016 WL 4371685 [2nd Dept 2016] citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). As a preliminary matter, the Court finds that the parties did not chart a summary judgment course and the Court is not converting the instant CPLR 3211 (a) (7) motion to one for summary judgment.

FHS's Motion Papers

The affirmation of Paykin, FHS's counsel, demonstrates that he had no personal knowledge of the facts alleged in the amended verified complaint. It, therefore, has no probative value (see Feratovic v Lun Wah, Inc., 284 AD2d 368, 369 [2nd Dept 2001]). Borsky's affidavit contains fourteen allegations of fact and states in paragraph two that it is being offered in connection with FHS's "instant order to show cause." The affidavit appears to have been intended for a different motion. Borsky has alleged the following pertinent facts, among others. He has been a Corporate Secretary of FHS for eight years including the date of the alleged incident. FHS was a tenant operating a bath house on the date and at the location of the alleged incident. Kalashnik was not employed by FHS on that date. Kalashnik was the owner of RBC on that date. RBC is a construction company. FHS has hired RBC in the past. RBC was not doing any work at the spa the date of the alleged incident.

The two web pages submitted by FHS are government records maintained and kept by the State of New York Department of State Division of Corporations on its official government web site. The information contained on the web documents are an exception to the hearsay rule under CPLR 4518 (a), business records exception and under State Technology Law § 306 (see Brown v SMR Gateway 1, LLC, 22 Misc 3d 1139[A], 2009 NY Slip Op 50516 [U], [Sup Ct, Kings County 2009]). They are admissible evidence of FHS's contention that FHS and RBC are both domestic business corporations. However, they do not prove that FHS dosen't have an employment, management, operating or contractual relationship with RBC.

O'Grady's affidavit, which was notarized on July 23, 2015, is annexed as exhibit F to [*4]FHS's instant motion and as exhibit A to O'Grady's opposition to the instant motion. FHS does not explain how it came into possession of O'Grady's affidavit before she would have received the instant motion. In any event, the affidavit simply provides a brief description of the circumstances of the alleged incident.

Negligent Hiring and Supervision

The first cause of action asserted against FHS is for negligent hiring and supervision of its employee Kalashnik. A claimant states a cause of action for negligent hiring and retention by adequately alleging that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (Everett v Eastchester Police Dept., 127 AD3d 1131 [2nd Dept 2015]).

O'Grady's amended complaint has alleged, among other things, that FHS was Kalashnik's employer and that it knew or should have known about Kalashnik's sexual, harmful and offensive touching tendencies. O'Grady has also alleged that FHS failed to exercise sufficient care and control in hiring and supervising him. The Court finds that O'Grady has adequately plead a cause of action for negligent hiring and supervision.

FHS claims that Kalashnik was not its employee at the time of O'Grady's alleged incident. The evidentiary materials submitted by FHS consists of an affidavit by Borsky, an affidavit by O'Grady, and two web pages from NYSDSDC. Borsky avers that Kalashnik was not an employee of FHS on the date of the alleged accident. However, O'Grady's opposition papers annexes three photographic images taken from FHS's Facebook page purportedly showing Kalashnik performing a massage. FHS does not deny that the three images were on its FHS Facebook page and that they depict Kalashnik.In sum, FHS's evidentiary materials does not conclusively establish that Kalashnik was not an employee of FHS at the time of the alleged incident (Kunik v New York City Dept. of Educ.,—- NYS3d ——2016 WL 4371685 [2nd Dept 2016]). Accordingly, FHS's motion to dismiss the first cause of action on that basis pursuant to CPLR 3211 (a) (7) is denied.

Assault and Battery

The second cause of action is for assault, the third cause of action is for battery, and both are premised on Kalashnik's offensive conduct against O' Grady with the knowledge and consent of FHS. "To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact' " (Thaw v North Shore University Hosp., 129 AD3d 937, 938-939 [2nd Dept 2015]) citing Gould v Rempel, 99 AD3d 759, 760 [2nd Dept 2012]). "To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature" (Thaw v North Shore University Hosp., 129 AD3d 937, 938-939 [2nd Dept 2015]) citing Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 475—476 [2nd Dept 2005]).

The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting in furtherance of the employer's business and within the scope of employment (Rodriguez v Judge, 132 AD3d 966 [2nd Dept 2016] citing Doe v Guthrie Clinic, Ltd., 22 NY3d 480, 484 [2014]; RJC Realty Holding Corp. v Republic Franklin Ins. Co., Utica Natl. Ins. Group, 2 NY3d 158, 164 [2004]). "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's [*5]business' " (Rodriguez v Judge, 132 AD3d 966 [2nd Dept 2016] citing Beauchamp v City of New York, 3 AD3d 465, 466 [2nd Dept 2004], quoting Stavitz v City of New York, 98 AD2d 529, 531 [1st Dept 1984]). "[T]he employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" (Rodriguez v Judge, 132 AD3d 966 [2nd Dept 2016] citing Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]. "Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (Rodriguez v Judge, 132 AD3d 966 [2nd Dept 2016] citing Beauchamp v City of New York, 3 AD3d at 466 [2nd Dept 2004]).

FHS stated that RBC and Kalashnik answered the amended complaint but did not annex their answer to the instant motion. FHS also did not submit an affidavit from Kalashnik. The Court is therefore unaware of RBC and Kalashnik's respective positions or responses to O'Grady's amended verified complaint.

O'Grady has properly plead a cause of action for assault and a cause of action for battery based on Kalashnik's alleged conduct. With regard to FHS, O'Grady has plead that Kalashnik was FHS's employee, that FHS assigned Kalashnik to be her masseuse and that FHS knew and consented to Kalashnik's intentional and offensive conduct toward her.

Accepting the allegations of fact in the amended complaint as true and giving O'Grady the benefit of every favorable inference that can be reasonably drawn from same, O'Grady has sufficiently plead a cause of action against FHS for the assault and battery allegedly perpetrated by Kalashnik.

None of FHS's evidentiary materials conclusively establishes that a material fact claimed by O'Grady in support of the second and third cause of action is not a fact at all (Kunik v New York City Dept. of Educ.,—- NYS3d ——2016 WL 4371685 [2nd Dept 2016]). Accordingly, FHS's motion to dismiss the second and third cause of action pursuant to CPLR 3211 (a) (7) is also denied.

Intentional Infliction of Emotional Distress

The fourth cause of action is for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress (Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 56 [2016] citing Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Liability has been found only where the conduct has 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 (Id.). Whether the conduct complained of is outrageous is a question of law for the courts in the first instance (see Cavallaro v Pozzi, 28 AD3d 1075 [4th Dept 2006]).

O'Grady's amended verified complaint, taken as a whole, alleges that she innocently went to a spa to obtain a message and was instead victimized by an offensive, sexual assault perpetrated by Kalashnik with the knowledge and consent of FHS. Although the complaint did not give specific details regarding the nature of the sexual assault, it may be reasonably inferred that it was unwanted, shocking and offensive. Furthermore, O'Grady specifically plead that she experienced severe emotional distress caused by the trauma of the incident.

Accepting the allegations of fact in the amended complaint as true and giving O'Grady the benefit of every favorable inference that can be reasonably drawn from same, O'Grady has sufficiently plead a cause of action against FHS for intentional infliction of emotional distress.

None of FHS's evidentiary materials conclusively establishes that a material fact claimed by O'Grady in support of the fourth cause of action is not a fact at all (Kunik v New York City Dept. of Educ.,—- NYS3d ——2016 WL 4371685 [2nd Dept 2016]).Accordingly, FHS's motion to dismiss the fourth cause of action pursuant to CPLR 3211 (a) (7) is also denied.

Negligent Infliction of Emotional Distress

The fifth cause of action is for negligent infliction of emotional distress. A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, generally must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety (Sacino v Warwick Valley Cent. School Dist., 138 AD3d 717, 719 [2nd Dept 2016]). However, the mental injury must be a direct, rather than a consequential, result of the breach (Taggart v Costabile, 131 AD3d 243, 255-256 [2nd Dept 2015] citing Kennedy v. McKesson Co., 58 NY2d 500, 504 [1983]) and the claim must possess some guarantee of genuineness (Taggart v Costabile, 131 AD3d 243, 256 [2nd Dept 2015] citing Ferrara v Galluchio, 5 NY2d 16, 21 [1958]).

The salient allegations of fact in the amended verified complaint are that FHS, through its negligent supervision, permitted Kalashnik to commit an assault and battery on O'Grady which caused her to suffer extreme emotional distress. O'Grady has adequately plead that FHS knew or should have known of Kalashnik's propensity for the offensive conduct which caused her injury.

O'Grady claims that FHS's breach of its duty to supervise Kalashnik unreasonably endangered her physical safety. However, the claims set forth in the second, third and fourth cause of action are premised on the intentional conduct of Kalashnik and not on FHS's negligence. Put in another way, O'Grady was endangered by Kalashnik's intentional acts condoned by FHS and not by FHS's negligent supervision. Furthermore, the amended verified complaint failed to adequately allege facts that would establish that O'Grady's emotional injury was "a direct, rather than a consequential, result of the breach" (Taggart v Costabile, 131 AD3d 243, 256 [2nd Dept 2015] citing Kennedy v McKesson Co., 58 NY2d 550, 506 [1983]). Accordingly, O'Grady does not state or have a claim against FHS for negligent infliction of emotional stress (see Santana v Leith, 117 AD3d 711 [2nd Dept 2014]). FHS's motion to dismiss the fifth cause of action pursuant to CPLR 3211(a) (7) is granted.

Costs, Disbursements and Reasonable Attorney's Fees CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances (CPLR 8001). The party to whom costs are awarded is [*6]entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court (CPLR 8301 [a]). FHS has not obtained a judgment in its favor dismissing the first, second, third and fourth cause of action and is, therefore, not entitled to costs pursuant to CPLR 8101or disbursements pursuant CPLR 8001. Although FHS has succeeded in obtaining an order in its favor dismissing the fifth cause of action, the Court in an exercise of discretion declines to award cost in connection with the instant motion pursuant to CPLR 8106.

"Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" (Pickett v 992 Gates Ave. Corp., 114 AD3d 740 [2nd Dept 2014] citing Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Apart from its separate claim for sanction pursuant to 22 NYCRR 130-1.1, FHS has offered no factual or legal basis for the awarding of attorney's fees.

Sanctions Pursuant to 22 NYCRR 130—1.1. Pursuant to the Rules of the Chief Administrator of the Courts Part 130 as set forth in 22 N.Y.C.R.R. 130—1.1, the court may award to any party or attorney in a civil matter costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct.

For the purpose of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false (see 22 N.Y.C.R.R. 130—1.1). If a court awards costs or sanctions, it must be done in a written decision setting forth the offending conduct, why that conduct has been deemed frivolous and why the amount awarded is appropriate.

The decision as to whether to award sanctions is within the sound discretion of the court (In the Matter of Rose Glatzer v Jay Glatzer, 73 AD3d 1173, 1175 [2nd Dept 2010]; citing, Wagner v Goldberg, 293 AD2d 527, 528 [2nd Dept 2002]). In order to impose sanctions, the court must find that the offending party's motion asserts material falsehoods or is without legal merit and undertaken primarily to delay or prolong the litigation, or to harass or maliciously injure another (Premier Capital v Damon Realty Corp., 299 AD2d 158 [1st Dept 2002]).

FHS seeks sanctions based on two grounds. First, FHS claims that O'Grady has been aware for some time that Kalashnik is not an employee of FHS and that her assertion that he is FHS's employee is knowingly false and frivolous. Secondly, FHS seeks sanctions against O'Grady because the pleadings in her amended verified complaint are inconsistent and contradictory.

At this juncture the Court cannot and has not determined that any material allegation of fact in the complaint is false. Furthermore, inconsistent pleadings are expressly permitted under CPLR 3014 (see Mitchell v New York Hosp., 61 NY2d 208 [1984]). Therefore, FHS has not established its claim that O'Grady has engaged in frivolous conduct. FHS's motion for an award of sanctions against O'Grady is denied.

CONCLUSION

Forest Hills Spa, Inc.'s motion for an order dismissing the first, second, third and fourth [*7]cause of action pursuant to CPLR 3211(a)(7) is denied.

Forest Hills Spa, Inc.'s motion for an order dismissing the fifth cause of action pursuant to CPLR 3211(a)(7) is granted.

Forest Hills Spa, Inc.'s motion for an order granting an award for costs, disbursements and reasonable attorney's fees is denied.

Forest Hills Spa, Inc.'s motion for an order imposing sanctions against Bethany

O'Grady pursuant to 22 N.Y.C.R.R. 130—1.1. is denied.

Forest Hills Spa, Inc. is directed to serve its answer to the amended verified complaint in thirty days and to file its answer with the Kings County Clerk's office.

The foregoing constitutes the decision and order of this Court.