A.M.P. v Benjamin

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A.M.P. v Benjamin 2020 NY Slip Op 34596(U) October 19, 2020 Supreme Court, Broome County Docket Number: Index No. EFCA2019 003543 Judge: Jr., Richard W. Rich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] BROOME COUNTY CLERK 10/23/2020 02:52 PM NYSCEF DOC. NO. 72 NYSCEF NYSCEF DOC. DOC. NO. NO. • INDEX NO. EFCA2019003543 ..., ..... , .. _.., ............. RECEIVED NYSCEF: 10/23/2020 71 71 RECE IVED NYSCEF: 10 /23/2 RECEIVED NYSCEF: 10/23/2 OF NEW STATE YORK: SUPREME COURT STATE OF NEW YORK: SUPREME COURT COUNTY OF BROOME BROOME COUNTY OF A.M.P A.M.P.., .. , DECISION & DECISION & ORDER ORDER Plaintiff, Plaintiff, Index No. EFCA2019 003543 Index No. EFCA2019 003543 -vs-vs- RONALD R. BENJAMIN, RONALD R. ESQ., and and THE THE BENJAMIN, ESQ., OF RONALD RONALD LAW LAW OFFICE OFFICE OF R. R. BENJAMIN, BENJAMIN, Defendants. Defendants. & Appearances: & Submissions Submissions Appearances: Paul Esq. G. Esq. Paul G. Ferrara, Ferrara, for Plaintiff Attorney for Plaintiff Attorney 500 Plum Plum Suite 500 Street, Suite 300 300 Street, NY 13204-1401 Syracuse, NY 13204-1401 Syracuse, Ronald Ronald R. R. Benjamin, Esq. Esq. Benjamin, for Defendants Attorney for Defendants Attorney PO Box 607 PO Box 607 NY 13902-0607 Binghamton, NY 13902--0607 Binghamton, RICH, J. J. RICH, matter This This matter is before the on by the to: is before the court court on a a motion motion the Defendant Defeñdant to: by Dismiss certain causes of action the Amended -- Dismiss certain causes of in Complaint as barred by action in the Amended Complaint as barred the by the stamte of limitations, contradicted of contradicted by documentary evidence or because they statute or because fail to evidence to state state a a cause cause limitations, by documentary they fail of of action action'. 1. to the the Plaintiffs Plaintiff's -- Objecting to prosecution of anonymously or prosecution of the the matter matter or in in the the Objecting anonymously alterñative alternative requesting that also be captioned anonymously. that the the defendants defendants also be captioned anonymously. requesting . Causes of Action; 2nd, 3d, 4*, 5*, 7th th 9th th th 13th 15*. A.M.P. v. Benjamin, Index No. 10/09/20 Decision A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to Decision Motion Pg.1 l on Motion to Dismiss, Benj=nin, EFCA2019003543, Dismiss, Pg. R-21 2 of 16 [*FILED: 2] BROOME COUNTY CLERK 10/23/2020 ...... , _.., .............. 02:52 PM ...., .. NYSCEF DOC. NO. 72 71 NY SCE F DOC. NO. NYSCEF NO. 71 DOC. INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECE IVE D NY SCEF: 10/23/2 RECEIVED NYSCEF: 10/23/2 Benjamin," "Law Office of Ronald -- Striking the the "Law Office of Ronald R. R. Benjamin,'' which which he claims is he claims is not not a a Striking separate separate entity. entity. Benjamin has submitted submitted an affidavit has an affidavit and and memorandum memorandum oflaw of law regarding the the Attorney Benjamin Attorney regarding exhibits which contains (to include documents). (to Family Court documents). Attorney motion, which contains documentary exhibits include Court motion, documentary Family Attorney Ferrara has also also submitted submitted an affidavit affidavit and a a memorandum memorandum of law on on the Ferrara has an and oflaw Further, the motion. motion. Further, Ferrara has submitted submitted seal certain certain for has aa cross-motion cross-motion seeking to defense exhibits and Attorney Ferrara to seal defense exhibits and for Attorney seeking sanctions. sanctions. was heard Oral argument on the the motion motion court September heard in court 2020. Oral argument on was in virtually on 1, on September 1, 2020. virtually Rose Daniel appeared for Attorney pro Attorney Daniel Rose appeared for Ferrara and Benjamin appeared pro se. and Attorney Benjamin appeared Ferrara se. Attorney Attorney Attorney on the the issues The court court has already ruled of anonymity The has ruled on of and the as issues and naming the law law office office as a a already naming anonymity evidence change in circumstances defendant. Since of a a change circumstances or Jaw law has has not defendant._ Sin~ ev~dence of in or been shown, the not been the law law of of shown, the case case stands, regards the motion motion in those those are found found to be inappropriate and are denied. The the the in regards are to be inappropriate and The are denied. stands, the points court understands of Attorney Benjamin his law but feels are court understands the points of Benjamin regarding his law office, but feels they office, Attorney regarding they are complete. He may premature until discovery is premature until is complete. renew his motion motion in that that regard, if appropriate, at He his in if at regard, discovery appropriate, may renew was pointed that time. time. The court court believes that was out in in the the previous decision. that The b~lieves that pointed out previous decision. Gender Causes: Biased Gender Biased Causes: which In regard regard to the the causes causes of action action allege violation of Section Section 79-n of the the Civil Civil In to of which allege aa violation of 79-n of Rights would seem that the the statute statute of limitations limitations period is extended extended from year to to Rights Law, it seem that of period is from one it would one year Law, Benjamin attacks the causes causes on two two CPLR Sections 215 and and 214. 214. three years. See. Sections 215 Attorney Benjamin attacks the on three years. See, CPLR Attorney argument" argument might be called the "duck "duck if it it looks looks fronts. The argument is might be called the argument" - if like fronts. The first first is what what like a a duck, duck, duck it duck. walks like aa duck and like aa duck, it must be a duck. Attorney Benjamin argues, in truth, Benjamin in and quacks quacks like must be a walks like duck, argues, truth, Attorney common law torts torts be treated second the matters are common and should should as such. such. The second issue is law and be treated as The issue is the alleged are matters alleged of that whether of action action and sufficiently plead violation that statute. statute. In this this whether the of correctly and plead aa violation of In the causes causes correctly sufficiently Benjamin some of the the alleged conduct does not not come come within the statute argues that of conduct does within the and regard, Benjamin argues that some alleged statute and regard, that the the causes causes do not not set set forth forth sufficient facts to show show that the the alleged alleged victim was singled singled out that do sufficient facts to that victim was out gender. because of her her gender. because of the causes under would be if they are not, If are properly under the they be timely, and, If the causes are properly the statute, not, they statute, timely, and, if they would they are they would would be untimely. be untimely. and New "New York's Civil Rights "New Civil Rights Law §79-n §79-n York Law (2) New York City York's (2) and City crime' to as as 'hate 'hate Adminktrative Code §8-904 are commonly referred Code) §8-904 are referred to crime' Administrative Code (City Code) (City commonly 'who Rights provides civil against Law provides aa civil remedy against any person 'who laws. Civil Rights laws. Civil Law 79-n(2) 79-n(2) remedy any person to the the or property for harm harm or causes causes damage or damage to intentionally selects aa person person or property for selects intentionally or another in whole or in in another or causes causes physical death to another in whole or or physfoal injury or death to property of of another injury property gender ... of of a a the ... ... gender substantial part because because of belief or perception regarding the ... substantial part of a a belief or perception regarding 'Gender' person....' as" actual or in subsection subsection is defined defined in (l)(d) as" aa person's person's actual or person ....' 'Gender' is (1)(d) expression.'The perceived sex and shall a person's gender or sex and shall include a person's gender identity or expression. 'The perceived include identity the statute that it it applies applies to bias-related legislative of the statute indicates indicates that only to bias-related legislative history of only history on Motion to Dismiss, Pg. 2 2 10/09/20 Decision Decision Motion A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to Pg. A.M.P. v. Benjamin, Index No. Dismiss, Berijamin, EFCA2019003543, R-22 3 of 16 a - ~- -- . .., [*FILED: 3] BROOME COUNTY CLERK 10/23/2020 02:52 PM ..-...-. ---.. NYSCEF DOC. NO. 72 71 NYSCEF DOC. NO. 71 NYSCEF DOC. NO. -.. ..-....., -,,--... ... ,-..-,... --, ~ ...-, ...- "'. - . ..., INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED NY SCE F : 10/23/2 10 / 23 / 2 RECEIVED NYSCEF: 1 • 227.' New Ch. 227.' violence or intimidation. intimidation. York Bill 2010 A.B. violence or New York Bill Jacket, 2010 A.B. 529, Ch. Jacket, 529, 2014). 2016 N.Y. LEXIS *23-24 NY Gottwald vv Sebert, 2016 N.Y. Misc. LEXIS 5202, *23-24 (S.Ct., NY Co., Gottwald Misc. Sebert, 5202, (S.Ct., Co., 2014). dismissal of New York Supreme Court continues: "Movants seek dismissal of New York County Supreme Court continues: "Movants seek County facts Kesha's of these these claims claims on the the grounds grounds that no no facts support both of on that support Kesha's conclusory conclusory that the gender. . . allegations that violent incidents were motivated by gender •.. allegations the alleged alleged violent incidents were motivated by the is female, Although Gottwald's alleged were directed to Kesha, who Although Gottwald's alleged actions were directed to who is the actions female, Kesha, or was not allege animus women that harbored animus toward women or was CCs allege that Gottwald Gottwald harbored toward CCs do do not toward Kesha. gender when motivated by gender animus when he allegedly behaved violently toward Kesha. motivated animus he behaved allegedly violently by crime." 2016 N.Y. Gottwald Every rape hate vv Sebert, 2016 N.Y. rape is is not not a a gender-motivated gender-motivated hate crime." Gottwald Sebert, Every LEXIS *25-26. Misc. LEXIS 5202, *25-26. Misc. 5202, both In Springy. v. Allegany-Limestone Cent. Sch. Dist., 2017 U.S. LEXIS 209250 Allegany-Limestone Dist. In Cent. Sch. 2017 U.S. Dist. LEXIS 209250 Spring Dist., that a the language and legislative found found that a claim claim (W.D.N.Y., 2017), the court, citing statutory language and legislative history, (W.D.N.Y., 2017), court, history, citing statutory required the part of the the defendant(s) of bias-related violence or was specifically on part of violence or intimidation intimidation was required on the of bias-related defendant(s) specifically and that that the "where discrimination laws provide and was not available, "where existing discrimination laws already provide the remedy was not available, already remedy existing decisions." or public Id. At At *27. *27. See also, such as as in in employment employment or public housing decisions." Id. See Karam Karam vv protection, such protection, also, housing 2016). reliance Defendant's U.S. LEXIS *55 (N.D.N.Y., on Cnty. Cnty. OfRenselear, Of Renselear, 2016 U.S. Dist. LEXIS 368, •ss 2016). Defendant's reliance on 2016 Dist. 368, (N.D.N.Y., (3"1rd be misplaced Waxter State of Neew 33AD3d 1180 or yv State ofNeew York, 33AD3d 1180 (3 Dept., 2006) may be misplaced or overstated, Waxter York, Dept., overstated, 2006) may based a gender constitutional tort and gender claim. as that that dealt dealt with and not not a with aa constitutional tort based claim. as law Since new statute and there is not not substantial substantial case law Section 79-n CRL is is a a fairly 79~n CRL new statute and there is case . Since Section fairly to other hate based regarding the courts have looked to gender-based and based statutes for the statute, courts have looked other gender-based and hate statutes for statute, regarding guidance. guidance. "The cases addressing the GMVA GMVA {Gender-Motivated Violence "The cases the Violence Act] are are {Gender-Motivated addressing Act] the statute predicated on scant. While actions scant. While actions arising from the statute are invariably predicated on from are arising invariably reprehensible conduct against female alone sustain this factor factor cannot female victims, this alone cannot sustain aa reprehensible conduct against victims, GMVAA claim. In spite of the of the claim. spite the egregious egregious nature courts have GMV In of nature of courts have the allegations, allegations, GMVAA claims claims based state dismissed GMV based on plaintiffs failure to 'any facts dismissed on the the plaintiffs failure to state facts 'any that [defendant's] alleged acts demonstrated demonstrated any based based on on showing that alleged acts showing [defendant's] any hostility hostility gender.' Cordero v. Epstein, 22 Misc. Misc. 3d 161, 869 N.Y.S.2d 725 Cordero v. Epstein, 22 3d 163, 869 N.Y.S.2d 725 (N.Y. Sup. gender.' (N.Y. Sup. 161, 163, Ct. 2008) Ct. (defendant touched plaintiffs private private parts parts and oral see (defendant touched plaintiffs and coerced coerced oral sex); see sex); 2008) also Gottwald. 2016 N.Y. Misc. LEXIS WL 2016 N.Y. Misc. LEXIS 5202, 2016 WL 1365969, at **4, 9 also 2016 at 9 Gottwald, **4, 5202, 1365969, (defendant (defendant repeatedly drugged and plaintiff, made negative comments about drugged and raped raped about made ñêgative comments plaintiff, repeatedly plaintiffs and threatened threatened body, and to plaintiff's career); Adams v. Jenkins, plaintiffs body, to destroy plaintiffs Adams v. career); Jenkins, destroy WL 6584554, at **1, (N.Y. Ct. Apr. slapped 2005 WL at 44 (N.Y. Sup. 22, (defendant slapped 2005 Sup, Ct. Apr. (defendant **l, 22, 2005) 6584554, 2005) "bitch," and pushed and pushed plaintiff, plaintiff, called her to her but court called her a a "bitch," and and threatened threatened to kill kill her but court found had failed failed plaintiff to plead 'motivated found plaintiff had to plead that was by gender bias'). that assault assault was 'motivated gender bias'). by the non-OMV cites by the Even the Even non-GMVA A cases cases that that Hughes Hughes cites analogy-like the Violence Violence by analogy-like Against Women require the gender animus element to be require the gender animus element to be pleaded. pleaded. Against Women Act-expressly Act-expressly See Fierro 2012 U.S. Dist. LEXIS 2012 WL *l See Fierro v. Taylor, 2012 U.S. Dist. LEXIS '!86433, 2012 WL 6965719, at at *1 Taylor, 186433, 6965719, (S.D.N.Y. Oct. (animus can be shown through factors such as (S.D.N.Y. Oct. 22, (animus can be shown through factors such as 22, 20l2) 2012) 'perpetrator's of 'perpetrator's language, severity of the lack provocation, previous previous the attack, lack of of provocation, language, attack, severity A.M.P. v. Benjamin, Index No. 10/09/20 Decision on Motion Motion A.M.P. v. Index No. EFCA2019003543, 10/09/20 Decision on to to Dismiss, Pg. 3 3 Benjamin, EFCA2019003543, Dismiss, Pg. R-23 4 of 16 [*FILED: 4] BROOME COUNTY CLERK 10/23/2020 PM _,_,_ .... 02:52 .....-. -..--.-.... ---.... - . ...-,... , -, .., ., NYSCEF DOC. NO. 72 ---.... ~ NYSCEF DOC. NYSCEF DOC. NO. NO. ---, .... 71 71 INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED NYSCEF: 10/23/2 RECEIVED NYSCEF: 10/23/2 4 of similar similar absence history of incidents, absence of apparent motive, and of other other apparent and common common incidents, history motive, Jugmohan 2000 Jugmohan v. Zola, 2000 U.S. Dist. LEXIS 1910, 2000 WL at U.S. sense'}; v. Zola, Dist. LEXIS 2000 WL 222186, sense'); at 1910, 222186, *3-4 Feb. 2000) ('extensive (S.D.N.Y. •3.4 (S.D.N.Y. Feb. eextensive history of acting in a humiliati~g, abusive, of in a 2000) history humiliating, abusive, acting women' or degrading sexual manner toward other or sexual manner exclusively toward other women' that that included included degrading exclusively Hughes' criminal charges). allegations draw nowhere near to criminal charges). Hughes' allegations draw nowhere near that to establishing that establishing women." Payne in part, was motivated, even by animosity against women." Hughes v, against Payne was even in part, by Hughes v. motivated, animosity Twenty-First 304 F. Century F. Supp. Twenty-First Centwy Fox, Inc., 304 3d 2018). Supp. 3d 429,455 2018). Fox, Inc., 429, 455 (S.D.N.Y., (S.D.N.Y., In interpreting New York City's "Victims of Gender-Motivated In New York City's "Victims of Violence Protection Gender-Motivated Violence Protection interpreting Law" and the Violence Against Law" (VWM) and the Violence Against Women Act, the First Department stated as Women the First Department stated as follows: follows: (VWM) Act, have aa "VAWA's legislative and its varied case law, "VAWA's legislative history, and case its varied have exerted exerted history, law, gravitational on the the few from trial pull few decisions, all from trial courts, that have interpreted all that have interpreted gravitational pull on decisions, courts, VGM thus thus far. ln In some of these some VGM far. of courts have interpreted the these decisions, courts have interpreted the animus animus decisions, requirement in a a way in that veers from the statute's remedial purpose. These that veers from the statute's remedial requirement purpose. These way rapes' often from VA WA's legislative the 'not 'not all rapes' language decisions, often invoking the all language from VAWA's legislative decisions, invoking have the plaintiffs to extrinsic interpreted animus in VGM VGM to to require require history, have interpreted animus in the plaintiffs to show show extrinsic history, evidence of the the defendant's defendant's of expressed hatred toward women as (see expressed hatred toward evidence women as a (see a group group First Hughes vv Twenty First Century Fox. Inc., Inc., 304 3d NY 2018) Hughes 304 F F Supp 3d 429,455 [SD NY Fox, Twenty Century 429, 455 [SD Supp 2018] defendant's verbal abuse, violent behavior, and workplace discrimination, in. [the defendant's verbal violent and [the workplace in abuse, behavior, discrimination, rape of addition to his his alleged alleged of the the plaintiff, addition to rape plaintiff, insufficient to animosity insufficient to demonstrate demonstrate animosity towards women as required required Gottwald vv Sebert, 2016 N.Y. Misc. Gottwald 2016 N.Y. towards women as byVGM]; Misc. VGM]; Sebert, by NY LEXIS 5202, 2016 NY Slip Op *21 [Sup Ct, NY County2016] *21 LEXIS 2016 5202, 32815[U], Ct, NY Slip Öp 32815[U], [Sup County 2016] did not not allege allege that the the defendant defendant harbored animus toward as a as [[complaint complaint did that harbored animus toward women women a when he raped and behaved toward the because not toward the plaintiff plaintiff because not every group when he raped and behaved violently group violently every crime' rape is is 'a 'a gender-motivated gender-motivated hate crime' under Garcia v hate VGM]; Garcia v Comprehensive rape under Comprehensive VGM]; 2018 US Dist Dist LEXIS 2018 WL 3918180, *S [SD Ctr., LLC, 2018 US LEXIS 138983, *11, 2018 WL *5 NY, [SD Ctr., LLC, 138983, *11, 3918180, NY, Aug. No. 17-CV-8970 [supervisor's Aug. 16, 2018, No. l 7-CV-8970 (JPO)] [supervisor's assault, misogynistic insults, misogynistic 16, 2018, assault, insults, (JPO)] and intimations intimations that the the plaintiff better if she she provided provided sexual and that plaintiff would be treated better if would be treated sexual under insufficient VGM because allegations because these allegations do "feelings services, insufficient under VGM these do not not allege allege "feelings services, will" of animosity and malevolent malevolent ill will" against against [internal of and ill women] [internal quotation marks quotation marks women] animosity omitted]). omitted]). Other trial VGM, including Supreme Court in courts Supreme Court in this this case, Other trial courts interpreting VGM, case, interpreting including circumstances" the "totality analysis Title of borrowed from Title VII have applied of the borrowed from VII have applied the the circumstances" analysis "totality to find find that plaintiffs showed gender-based animus actions to that plaintiffs sufficiently showed gender-based animus by alleging actions sufficiently by alleging the commission the alleged alleged of by perpetrator during the of crime of and and statements statements the perpetrator commission of the crime by the during (see e.g. LEXIS violence (see Roe/eke vv Zip Zip Aviation, Aviation, UC, 2018 U.S. Dist. LEXIS 51452, violence e.g. Roelcke 2018 U.S. Dist. LLC, 51452, 6284 2018 WL [SD No. 15 Civ. WL 1792374, *13 [SD NY, Mar. 26, 2018, No. 15 Civ. 6284 (DAB)] *36, 2018 *l3 Mar, 1792374, NY, 26, 2018, *36, (DAB)] terms' use while the plaintiff [the use of~gendered terms' while assaulting the plaintiff sufficient to [the defendant1s defendant's of 'gendered sufficient to assaulting cause see N.Y. LEXIS 451 of see also Mosley v Brittain, 2017 N.Y. Misc. LEXIS 4511, state-a state a cause of action]; also v 2017 Misc. action]; Brittain, 1, Mosley NY NY [cause of action stated NY Slip Op 32447[U] [Sup Ct, NY County 2018] [ cause of action stated 2017 2017 Ct, County 2018] Slip Op 32447[U] [Sup 'bitch' and the defendant called plaintiff and contemporaneously where the repeatedly called plaintiff aa ~bitch' where defendant repeatedly contemporaneously kneed her in in the the crotch]). crotch]). kneed her the few few cases cases that have grappled with VGM's requirements grappled with VGM's pleading requirements What that have What the pleading v. Benjamin, 10/09/20 Decision on Motion to Dismiss, 4 A.M.P. v. Index No. EFCA2019003543, 10/09/20 Decision on to Pg. A.M.P. Index No. Motion Pg. 4 EFCA2019003543, Benjamin, Dismiss, R-24 5 of 16 ., . [*FILED: 5] BROOME COUNTY CLERK 10/23/2020 02:52 PM ......... DOC. . -----................ ... NYSCEF NO. 72 ~ ...-...- ._ . ...- NYSCEF DOC. NYSCEF DOC. . NO. NO. -., - - ,.-.... ~..,., ---, -_,...._..,. ... - , - , - - - 71 71 ...- . - . .... -.., ~ INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 10/23/2( RECEIVED NYSCEF: RECEIVED NYSCEF: 10/23/2( common that some some allegation of other other acts or or statements statements in common is the the premise have in is premise that allegation of acts have animus show gender are supplement allegations of rape rape or or to to to show gender animus are necessary to supplement allegations of tending necessary tending sexual assault. Some courts, such as the the Supreme Supreme Court have found that a a as Court below, have found that sexual assault. Some such below, courts, plaintiff states cause of action action with limited additional others of with very limited additional allegations; others plaintiff states aa cause allegations; very have erected insuperable barriers to a claim. erected insuperable barriers to stating a claim. have stating We find find that cases cases interpreting VGM have have been distorted the vestigial vestigial We that VGM been distorted by the by interpreting legislative and case law of While the Council was VAWA. of VA WA. While the City Council was clearly legislative history and case law City clearly history VAWA's it does not follow that incorporated all of of a left it gap left by VA W A's demise, it does not follow that it incorporated all filling a demise, filling gap by legislative compromises into There is no no stated stated concern in VAWA's VGM. VA WA's legislative compromises into VGM. There is concern in VGM's legislative that the of cases brought under VGM must VGM's legislative history that the number of cases brought under VGM must number history be The legislative legislative does not not invoke invoke the 'not somehow limited. of VGM VGM does 'not all of the all somehow be limited. Tue history history rapes' language courts rapes' language from VA WA's legislative history. Accordingly, courts seeking to from VAWA's legislative history. to Accordingly, seeking required to follow the interpret VGM's requirements are not not required follow are to the · interpret VGM's pleading requirements pleading federal case law law that that often often struggled determine of the the pre-Morrison federal case struggled to the of pre-Morrison to determine the meaning meaning animus provision in VA VAWA's civil rights cause of action. action. WA's civil rights cause of animus provision in the animus animus provision remains in VGM, and a a statute statute "is to to be and "is be However, the provision remains in However, VGM, interpreted as give effect to provision. A construction that would provision. A construction that would interpreted so so as to to give effect to every every avoided" render superfluous to be (Majewski Broadalbin-Perth be avoided" (Majewski vv Broadalbin-Perth render aa provision provision superfluous is is to Cent. 91 NY2d 673 N.Y.S.2d School 696 N.E.2d 966 91 NY2d 577,587,696 N.E.2d 978,673 N.Y.S.2d 966 Cent. School Dist., Dist., 577, 587, 978, insight this As we we find find that legislative provides no on this [1998)). As that VGM's legislative history provides no insight on [1998]). VGM's history are inapposite, law are we return return and that legislative WA's legislative history and we point, and and case case law that VA VAWA's inapposite, point, history the two definitions animus. to the two possible of animus. to possible definitions of interpretation of the that it Plaintiffs the animus animus it signifies signifies of requirement, that Plainti'ffs interpretation requirement, spirit," "attitude or spirit, would render superfluous the that "attitude or governing would render superfluous the language language that comes comes governing before it in the statute. As noted above, VGM defines a 'crime of immediately before it in the statute. As noted VGM defines a 'crime of above, immediately gender' as a a crime crime 'committed because of gender gender or on on the violence motivated violence motivated by 'committed because of or the by gender' as basis of gender, and due, at least least in in part, to an an animus animus based on the basis of and part, to based on the victim's victim's gender, due, at gender' It to that Code 10-1103). It is redundant to say that a is gender' (Administrative Code§ 10-1103). is redundant a crime crime is (Administrative say § gender' committed 'because of gender gender or on on the the basis of gender' and and that that the the crime crime is due committed 'because of or basis of is due in part of animus on where is defined def'med as an an 'attitude 'attitude in part because because of animus based based on gender, where animus is as animus gender, spirit' or governing based or spirit' based on the victim's gender. In order for animus to add on the victim's gender. In order for animus to add governing to the urges: to and redundancy, it mean what defendant urges: meaning the statute, and avoid avoid it must must mean what defendant statute, redundancy, meaning malice or ill ill will. will. malice or even in the under definition claims the amended However, even under this plaintiffs claims in this definition plaintiffs amended However, sufficient to complaint that she she was was raped raped and sexually and assaulted are sufficient to allege complaint that assaulted are allege sexually animus on the the basis of gender. She need further gender. need not allege allege evidence of She not any evidence of animus on basis of any further gender-based has gender-based animus. Defendant has conceded that herein are allegations animus. Defendant conceded that the the allegations herein are because of gender sufficient to show show that the the acts acts alleged alleged were 'committed on sufficient to that were 'committed because of or gender or on gender.' the basis of gender.' That was 'due, That the alleged alleged rape and and sexual sexual assault the basis of the rape assault was at at least least in in 'due, gender' to an animus based on the victim's is part, to an animus based on the victim's gender' is sufficiently pleaded by the pleaded the part, sufficiently by nature of the the crimes crimes alleged. of alleged. nature Rape and sexual sexual taken assault are, by definition, actions taken against the Rape and assault actions against the victim victim are, by definition, without the victim's Without sexual such as victim's consent. alleged without the consent. Without consent, sexual acts such as those alleged in acts those in consent, the complaint the victim's and an complaint are a a violation violation of the victim's expression of of bodily autonomy and an expression of the are autonomy bodily 11 A.M.P. v. Benjamin, Index No. Motion A.M.P. v. Index No. EFCA20l9003543, 10/09/20 Decision on to Pg. 10/09/20 Decision on Motion to Dismiss, 5 Pg, 5 Benjamin, EFCA2019003543, Dismiss, R-25 6 of 16 [*FILED: 6] BROOME COUNTY CLERK 10/23/2020 02:52 PM -NYSCEF .. . -- .....,--.- DOC. NO. 72 NYSCEF DOC. NYSCEF DOC. NO. NO. .... . ......-.,., ~ ---, _..,_...,. .... , -, - ., , - - - - ..... . - . INDEX NO. EFCA2019003543 ...., ..., RECEIVED NYSCEF: 10/23/2020 71 71 RECEIVED NYSCEF: 10/23/2 RECEIVED NYSCEF: 10/23/2 . . the perpetrator's contempt for that that autonomy. the perpetrator's contempt for autonomy. Coerced sexual activity is Coerced sexual is activity and fear-inducing. dehwnanizing and fearwinducing. Malice or ill will based on gender is Malice or ill will based on gender is apparent apparent dehumanizing from the alleged alleged commission of the the act act itself. itself. from the commission of Animus inheres where consent is Animus inheres where consent is absent. · absent. VGM." plaintiff has stated Accordingly, plaintiff has aa claim under VGM." Breest vv Haggis, 180 stated claim under Breest 180 Accordingly, Haggis, (l" A.D.3d A.D.3d 83, (19' Dept., 2019). 92-94 2019). Dept., 83, 92-94 "On to dism{ss motion pursuant ''On aa motion to pursuant to the pleading is be dismiss to CPLR CPLR 3211, the pleading is to to be 3211, afforded liberal construction afforded aa liberal construction (see, We the as in CPLR 3026). We accept the facts facts as alleged alleged 3026). accept in (see, CPLR the complaint as true, complaint accord the the as accord plaintiffs the benefit of every possible favorable plaintiffs benefit of favorable possible true, every determine and determine whether the facts and only whether the as fit within any inference, facts as alleged alleged fit within inference, only any cognizable legal (Morone v cognizable legal theory (Morone v Morone, Morone, 50 NY2d 481, 484; Rovello vv Orofino 50 NY2d Rovello Orofino 481, 484; theory Leon 40 NY2d 634). v. Realty Co., 40 NY2d 633,634). Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). 84 N.Y.2d 87-88 (1994). Martinez. Co., 633, Realty 83, "'When defendant's motion to dismiss dismiss to aa complaint for '"When reviewing aa defendant's motion complaint for failure failure reviewing to state state a a cause cause of action, court must to of aa court must give give the the complaint aa liberal liberal construction, complaint action, construction, accept accept the as provide plaintiffs plaintiffs with the benefit of the allegations allegations as true true and and provide the benefit with of every every inference' favorable favorable inference' (Nomura Home Equity Equity Loan, Loan, Inc., Inc., Series 2006-FM2 vv (Nomura Home Series 2006-FM2 Nomura Credit 30 NY3d Nomura Credit & Inc., 30 NY3d S72, 582, NYS3d 520, NE3d 743 & Capital, 69 NYS3d 92 NE3d 743 Capital, Inc., 572, 582, 69 520, 92 [internal quotation marks (2017] [internal quotation marks omitted]). 'Whether a plaintiff can ultimately omitted]). 'Whether a plaintiff can [2017] ultimately establish its allegations allegations is not not part of the its is part of in a motion to the calculus calculus in determining a motion to establish determining dismiss' v (EBC dismiss' (EBC I, Inc. Inc. v Goldman, Sachs & & Co., 5 NY3d NY3d 11, NE2d 26, 799 Sachs Goldman, I, Co., 5 11, 19,832 19, 832 NE2d 26, 799 170 [2005]). NYS2d NYS2d 170 [2005]). Furthermore, '.(u]nlike '[u]nlike on on a a motion motion for for summary judgment judgment Furthermore, summary parties' where the court court where the searches the and the of searches the record record and assesses assesses the sufficiency of the the parties' sufficiency on a evidence, on to the merely examines the of a motion motion to dismiss dismiss the court court examines of the the the adequacy evidence, merely adequacy pleadings' vv Boeheim, Boeheim, 24 NY3d 262,268,998 NYS2d 131, NE3d 999 (Davis 24 NY3d 998 NYS2d 22 NE3d 999 pleadings' (Davis 262, 268, 131, 22 omitted])." [internal quotation marks Cortlandt St. Recovery [20141 [internal quotation marks omitted])." Cortlandt St. Corp. vv Corp. [2014] Recovery Bonderman, 31 31 N.Y.3d N.Y.3d 30, 38 38 (2018). (2018). Bonderman, 30, Second Cause Cause of Action: of Action: Second second complaint The cause of in complaint charges ''Gender-Biased Assault & The second cause of action in the the amended amended charges "Gender-Biased & action Assault 79-n." Law Section Rights count other Battery, Civil Rights Law 79-n." The alleges, among otherth~s. forcible and Civil Section The count forcible and Battery, alleges, things, among physical assault whole and battery, or in violent physical abuse, assault violent and battery, which which was was intimidating and and motivate~ in in whole or in abuse, motivated, intimidating defendant's bias women. part, upon defendant's bias toward women. toward upon part, Violence are set 2016 LEXIS Violence and are {Gottwald vv Sebert. 2016 N.Y. Misc. LEXIS and intimidation intimidation set forth forth (Gottwald N.Y. Misc. Sebert, *23-24 2014). The defense defense forth common law remedy, but not 5202, *23-24 (S.Ct., NY Co., The has aa common law but not NY has set set forth remedy, 5202, (S.Ct., Co., 2014). is an anti-discrimination v. AUegany-Limestone Allegany-Limestone Cent. Sch. Dist., 2017 one is law. ~pring v. Cent. Sch. 2017 one which which an anti-discrimination law. Dist., Spring alleged U.S. Dist. LEXIS 209250 (W.D.N.Y., 2017). The conduct alleged is not specifically a sexual U.S. 209250 2017). The conduct is not a sexual Dist. LEXIS (W.D.N.Y., specifically and of without other factual and does does not not in in and of itself itself come under the statute statute allegations. and come under the without other factual allegations. assault assault (l" Breest vv Haggis, 180 83, (1st Dept., 2019). Breest 180 A.D.3d A.D.3d 92-94 2019). Haggis, 83, 92-94 Dept., regard gender of action information In to animus, the of states: "Upon infonnation and belief, In regard to gender the cause cause action states: "Upon and belief, animus, Index No. A.M.P. v. Benjamin, 10/09/20 Decision Decision on Motion Motion Pg. 6 6 AM.P. v. Index No. EFCA2019003543, 10/09/20 on to Pg. to Dismiss, Benjamin, Dismiss, EFCA2019003543, R-26 7 of 16 -- [*FILED: 7] BROOME COUNTY CLERK 10/23/2020 02:52 PM NYSCEF DOC. NO. 72 NYSCEF DOC. NYSCEF DOC. NO. NO. ...,'VI---, _...,._v ...., --, ---- 71 71 ...- . - . .. , ..., INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED NYSCEF: 10/23/2 RECEIVED NYSCEF: 10/23/~ . Defendant in whole whole toward Defendant Benjamin's Benjamin's actions actions were were motivated, in or or in in part, part, upon upon his his bias bias toward person's person's motivated, women." court sees nothing numbered paragraphs AMP's The court in the of of AMP's gender, i.e., sees in the opening numbered paragraphs gender, i.e., women." The nothing opening which would expand upon gender animus issue. which would expand upon the animus issue. the gender sufficient The finds that allegations are to bring the The court court finds that the the factual factual allegations are not not sufficient to bring the allegations allegations within the statute statute and the the second second cause of action action is dismissed. dismissed. of is within the and cause Third Cause Third Cause of Actio11: of Action: The third third cause action in the the amended complaint charges "Gender Based The cause of in complaint charges "Gender Based Verbal of action amended Verbal 79-n." Harassment and Civil Rights Law Section Alleged in the cause of Assault, Battery and Harassment, Civil Rights Law Section 79-n." Alleged in the cause of Assault, Battery offensive to other things is verbal action, among other things is verbal abuse, assault, battery and and harassment harassment offensive to plaintiff's plaintiffs abuse, assault, action, among battery dignity. Not specifically alleged are physical violence. Whether intimidation is is dignity. Not alleged are acts acts of of physical violence. Whether intimidation is alleged alleged is specifically (Gottwald aa closer question. (Gottwald vv Sebert, 2016 N.Y. Misc. LEXIS 5202, *23-24 (S.Ct., NY Co., closer question. 2016 N.Y. Misc. LEXIS *23-24 NY Sebert, 5202, Co., (S.Ct., alleged and of of itself, come 2014). The conduct conduct does not not specifically, in and under the statute statute without 2014). The alleged does in come under the without specifically, itself, (l" st v 92-94 2019). other factual allegations. Breest 180 A.D.3d A.D.3d other factual allegations. Breest v Haggis, 180 83, 2019). Haggis, Dept., 83, 92-94 (1 Dept., In to animus, the complaint states as In regard regard to gender gender the amended amended complaint states as follows: follows: animm, "105. Upon information such verbal verbal and "I 05. Upon information and belief, such abuse, assaul~ battery and and belief, abuse, assault, battery at least least Defendant Benjamin's bias toward AMP's harassment was at in part, by by Defendant Benjamin's bias toward AMP's gender, harassment was motivated, in part, motivated, gender, i.e., women. women. i.e., Defendant Upon further information and belief, Benjamin's and 106. Upon further infonnation and belief, Defendant Benjamin's demeaning and 106. demeaning conduct toward persons of AMP's not limited tio AMP. unwelcome AMP's is unwelcome conduct toward persons of gender, i.e., women, is not limited tio AMP. gender, i.e., women, Benjamin himself in a Rather, Defendant Benjamin regularly and consistently conducts himselfin toward Defendant and conducts a manner manner toward Rather, regularly consistently " gender others of gender." others AMP's of AMP's the court fmds Although at this this early point in the the action, court that the the allegations allegations point in the finds that Although sparsely pied, at pled, action, sparsely early to avoid dismissal. are sufficient to avoid dismissal. are sufficient Fourth Cause I!' ourth Cause of Action: of Action: The fourth fourth cause of action action in the the amended amended complaint charges"Sexual Civil The cause of in complaint charges"Sexual Harassment, Civil Harassment, 79-n." Rights Law Section Section The count count alleges that the the defendant defendant of power Law 79•n," The alleges that used his position of power over Rights used his position over the plaintiff to force force and intimidate intimidate her into into unwanted unwanted sexual actions and activity, the plaintiff to and her sexual advances, actions and advances, activity, at his based at least part, by bias against women. The appears to intimidation and based least in in part, against women. The cause cause appears to cover cover and intimidation by his bias sexual physical actions. It also unwanted also alleges alleges that the the conduct conduct occurred over of time time unwanted sexual physical actions. It that occurred over aa period period of June 2016 from June to November 2017. from 2016 to November 2017. cause of action The cause action states: and belief, The of states: "Upon information and belief, Defendant Benjamin's "Upon information Defendant Benjamin's unwelcomed sexual at least advances and other other were least in in part, and conduct were motivated, at part, by unwelcomed sexual advances his bias conduct bias motivated, by his toward person of MAP's MAP's intimidate and gender, i.e., women, and sought to intimidate and/or hann AMP as toward person of sought to and/or harm AMP as a a gender, i.e., women, thereof." result thereof." result A.M.P. v. Benjamin. Index No. 10/09/20 Decision Decision on Motion Motion to Dismiss. Pg. 7 A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to Benjamin, EFCA2019003543, Dismiss, Pg. R-27 8 of 16 [*FILED: 8] BROOME COUNTY CLERK 10/23/2020 02:52 PM , --, NYSCEF DOC. NO. 72 NYSCEF DOC. NYSCEF DOC. NO. NO. - --- ...- . - . --., 71 71 INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED RECEIVED NYSCEF: 10/23/2 NYSCEF: 10/23/2 Although at this this early point in the Although sparsely pied, at point in the finds that the action, the court court finds that the the allegations allegations pled, action, sparsely early are sufficient sufficient to avoid avoid are to dismissal. dismissal. Cause Fifth Cause of Action: of Action: Fifth The fifth fifth cause of action in the action the amended amended complaint charges The cause of in complaint charges "Intentional Infliction of "Intentional Infliction of 79-n." Emotional Civil Rights Law Section Section Emotional Distress, Civil Rights Law 79-n." The alleges that · The count count alleges that the the defendant defendant Distress, intended to cause cause "emotional intended to her, distress, anguish, anxiety;depression, embarrassment, her, "emotional distress, anguish, anxiety, depression, embarrassment, suffering," humiliation and mental mental pain and suffering," motivated and pain and by his bias against women. It humiliation motivated his bias against It further women. further by alleges so in in part to pressure that he he did did so her into unwelcome sexual alleges that part to pressure her unwelcome sexual acts into acts and and that that she she was was intimidated intimidated thereby. thereby. "Plaintiffs second cause of action action is framed framed "Plaintiff's second cause of is in of for in tenns terms of a a claim claim for intentional infliction of emotional emotional distress. To survive survive intentional infliction of distress. To aa motion to motion to dismiss, dismiss, plaintiff allegations must the rule set out in plaintiffss allegations must satisfy the rule set out in Restatement of Torts, Second, Restatement of Torts, satisfy Second, which we adopted in Fischer which we adopted in Fischer vv Maloney Maloney ((43 43 NY2d NY2d 553, 557), that: 'One who by that: 'One who 553, 557), by and outrageous extreme outrageous conduct or extreme and conduct intentionally or recklessly causes severe causes severe intentionally recklessly distress' to another emotional distress another is subject to liability emotional distress to is to for distress'(§ for such such emotional emotional subject liability (§ subd [I]). Comment d to that section that: 46, subd [ 1 ]}. Comment d to that section notes that: "Liability has been found only notes has found been 46, "Liability only where the conduct conduct has been so outrageous outrageous in character, and where the has been so in and so extreme in degree, so extreme in degree, character, as to to go go beyond all possible of decency, and to as beyond all possible bounds bounds of and be regarded as to be regarded as atrocious, decency, atrocious, and utterly intolerable in a a civilized and utterly intolerable in community". Murphy v. Home civilized community". v. Am, Am. Home Prods. Prods. Murphy 58 N.Y.2d 303 (1983). (1983). Corp., 58 N.Y.2d 293,303 See Chanko vv_American-Broadcasting American Broadcasting See also, Chanko Cog., 293, also, 27 NY3d 46 (2016). Cos., Inc., 27 NY3d 46 (2016). Cos., Inc., "We reach reach similar "We aa similar conclusion regarding plaintiff's cause of for conclusion plaintiff's cause of action action for regarding of emotional emotional well intentional infliction of distress. It settled that of intentional infliction distress. It is is wen settled that a a cause cause of action action for infliction of distress should not be entertained 'where for intentional intentional infliction of emotional emotional distress should not be entertained 'where the conduct conduct complained of falls falls well within the ambit ambit of other other traditional tort the complained of well within the of traditional tort liability'" liability"' (( Sweeney vv Prisoners' Prisoners' Legal Legal Servs. of N.Y., 146 AD2d 1, 7,538 146 AD2d Servs. 538 Sweeney N.Y., 7, 1, of lv N.Y.S.2d dismissed 74 NY2d Fischer N.Y.S.2d 370, Iv dismissed 14 NY2d 842, Fischer vv Maloney, Maloney, 43 NY2d 43 NY2d 370, 842, quoting quoting 402 N.Y.S.2d 373 N.E.2d 1215 [emphasis in 553,558,402 N.Y.S.2d 991,373 N.E.2d 1215 [emphasis in original]). original}). 553, 558, 991, facts Additionally, the alleged in complaint, even if are the facts alleged in the even if true, are the amended amended Additionally, complaint, true, state a cause of action intentional infliction of emotional of for infliction of insufficient to state a cause action for intentional emotional insufficient to which requires 'extreme outrageous [so transcending] the distress, which requires 'extreme and conduct [so the and outrageous conduct distress, transcending] bounds as to be regarded as atrocious and intolerable in a civilized bounds of as to be regarded as atrocious and intolerable in a civilized of decency decency society' 143)." Butler v. Delaware Otsego Delaware supra, at v. Otsego at 143)." Butler society' (( Freihofer Freihofer vv Hearst Hearst Corp., Corp., supra, (3drd 203 783, (3 Dept., 1994). · Cotp., A.D.2d 784-785 1994). 203 A.D.2d Corp., 783, 784-785 Dept., indecent If proven, court finds the allegations in this this matter matter to be . If proven, the finds the in to be extreme, outrageous, indecent the court allegations extreme, outrageous, intolerable. and and intolerable. Butler Based upon the case, of is Based upon the Irnlli[ that cause cause of action action is dismissed. dismissed. case, that Index No. 10/09/20 Decision Decision on Motion Motion to Dismiss, Pg. 8 8 A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to A.M.P. v. Benjamin, EFCA2019003543, Dismiss, Pg. Benjamin, R-28 9 of 16 [*FILED: 9] BROOME COUNTY CLERK 10/23/2020 PM _..,._ ....- 02:52 ..., .....--. -..--.---.... ---.... ---. - . ...., --, ..... , ..-, ---, ~ NYSCEF DOC. NO. 72 F DOC. NYSCE NYSCEF DOC. NO NO.. INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECE IVE D NY RECEIVED NYSCEF: 10/23/21 S CE F: 10/23/2 71 71 Seventh Cause of Action: Cause of Action: Seventh seventh of action in the amended The seventh cause the amended complaint charges legal malpractice in the the The cause of in complaint charges legal malpractice in action court representation of the the plaint6iff defendants. Defendant that the the legal legal family court representation of plaint6iffby Defendant argues that argues family by defendants. but that certain malpractice sounds in but that specifications in paragraph 153 malpractice sounds in negligence negligence certain specifications in paragraph 153 allege allege intentioñal Upon and strikes Upon review, the has and subsections (f) (1) torts. the court has to to agree agree strikes subsections thmugh intentional torts. court review, (f) through (1) thereof. thereof. Eighth Cause of Action: Cause of Action: Eighth The court court ruled on this this cause cause of action~ plaintiff has complied complied with the The previously ruled on of plaintiff has with the action, previously directives and defendant of of that that decision decision and defendant has has set set forth forth nothing which which causes causes the the court court to to alter its its directives alter nothing previous decision. previous decision. & Eleventh Causes Ninth & Eleventh Causes of Action: of Action: Ninth The ninth ninth cause of action action in the the amended amended complaint charges while the The cause of in complaint charges negligence, while the negligence, eleventh charges gross negligence. Defendants claim that of allege intentional eleventh charges gross negligence. claim that the the causes causes of action action allege Defendants intentional Benjamin torts cloaked in terms terms of neglect neglect and gross gross neglect. argues that the the negligence in of and neglect. Attorney Benjamin argues that torts cloaked negligence Attorney allegations are only incideñtal to the intentional tort and are used to the intentional tort allegations and are being used simply to allegations are incidental to allegations only being simply extend the statute statute of limitations. limitations. extend the of "A plaintiff cannot avoid shorter limitations period by casting her her "A plaintiff cannot avoid aa shorter limitations period merely merely by casting complaint in a a form form that wo~d would extend that period complaint in that extend that period (see. Brick vv Cohn-Hall-Marx Cohn-Hall-Marx (see, Brick 276 NY v Co., 264; Stadtman v Cambere, 13 73 AD2d 501, "Where the Stadtman AD2d 502). "Where the Co., 276 NY 259, 259, 264; Cambere, 501, 502). allegations of fraud another of fraud are only of are incidental incidental to to another cause cause of action, the the fraud fraud Statute Statute allegations action, only omitted]" of Limitations cannot be of Limitations cannot be invoked invoked [citation [citation omitted]" {( New New York Seven-Up York Seven-Up Co. v Dow Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 1053, a.ffdforreasons stated at Chem. 96 AD2d affd for reasons stated at Co., 1053, 1051, Bottling Div 61 NY2d Wildfoerster App 61 NY2d 828; see also, Paver & [In High & Wildfoerster [In re re Catholic Catholic High Paver also, 828; see App Div School of Assn. 38 NY2d School Assn. ofN.Y.], 38 NY2d 669, 674-675). Plaintiffs injury was by 674-675). Plaintiffs was caused caused N.Y.], 669, injury by alleged sexual in~entional tort. Defendant's alleged fraudulent conduct an intentional tort. Defendant's alleged alleged sexual abuse, an fraudulent conduct abuse, have facilitated access to plaintiff may facilitated access to plaintiff and managed to the and may managed to keep have the alleged alleged may have may have keep sexual abuse to the injuries for which · but it sexual abuse secret, but it did not directly give rise did not give rise to the injuries for which secret, directly recovery." (4thth seeks Doe v. v. Roe, 192 A.D.2d · plaintiff plaintiff seeks recovery." Doe 192 1089, 1090 (4 Dept., 1993). A.D.2d 1090 1993). Roe, 1089, Dept., "When the appJicable applicable statute courts to the of courts look to "When determining the statute of limitations, look the limitations, determining of stated the stated claims claims and ascribed to by plaintiffs and not not to to the the label label ascribed to them them the plaintiffs essence of the by the (see Western Western Elec. Co. v v Brenner, 41 NY2d (see Elec. Co. Brenner, 41 NY2d 291,293,360 NE2d 1091, 392 360 NE2d 392 291, 293, 1091, NYS2d 409 [1977]; Brick Brick vv Cohn-Hall-Marx Co., NY 259, 263-264, 11 Cohn-Hall-Marx 276 NY NYS2d 409 11 [1977]; Co., 276 259, 263-264, NE2d 902 NE2d 902 [1937]; Schetzeri Robotsis, 273 220, 220-221, 709 NYS2d 193 Schetzen v Robotsis, AD2d 273 AD2d 709 NYS2d 193 [1937]; 220, 220-221, plaintiffs' [2000]). the of the (2000]). Here, the gravamen of the plaintiffs' claims is that the defendant gravamen claims is that the defendant Here, subjected her to to unwelcome unwelcome sexual for purposes unrelated unrelated to subjected her sexual contact contact for purposes to medical medical treatment. Regardless of how it such aa claim alleges an is characterized, claim treatment. Regardless of how it is such alleges an characterized, intentional tort subject subject to a a one-year one-year to statute of (see intentional tort statute of limitations limitations (see CPLR CPLR 215 215 [3]; (3]; essence v A.M.P. v. Benjamin, Index No. Decision A.M.P. v. Index No. EFCA2019003543, 10/09/20 Decision on to Pg. 10/09/20 on Motion Motion to Dismiss. Pg.9 9 Ocñjsia, EFCA2019003543, Dismiss, R-29 10 of 16 [*FILED: 10] BROOME COUNTY CLERK 10/23/2020 02:52 PM NYSCEF DOC. NO. 72 F DOC. DOC. NYSCEF NYSCE NO NO.. ... ,..,, ... ..,,., ............ ...., INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 . NY RECEIVED RECEIVED NYSCEF: SCE F: 10/23/2 10/23/2 71 71 Catholic Diocese 271 AD2d Langford vv Roman Roman Catholic Diocese of Brooklyn, 271 494,495, 705 AD2d 705 494, 495, of Brooklyn, NYS2d 661 [2000]; Tserotas Greek Orthodox NYS2d 661 Tserotas vv Greek Orthodox Archdiocese ofN. & S. Am., 251 Archdiocese & 251 N. S. [2000]; Am., of AD2d 673 NYS2d 1011 Karczewski AD2d 323, 324, NYS2d 1011 [1998]; Karczewski vv Sharpe, 248 679, 248 AD2d AD2d 323, 324, 673 [1998]; Sharpe, 679, NYS2d 670 318 Sharon v Reverend 244 680, 670 NYS2d 318 [1998]; Sharon B. v Reverend S., 244 AD2d 878,879, 665 B. AD2d 665 680, [1998]; S., 878, 879, 139 [1997]). [1997]). Since the d~fendant's NYS2d NYS2d 139 Since the alleged conduct occurred on defendant's alleged conduct occurred on October October and the plaintiffs claim was not interposed interposed and the plaintiffs claim was not until October 3, the 29, until October the 29, 2001, 2001, 3, 2003, 2003, Supreme Court granted the defendant's motion correctly granted the defendant's motion to dismiss on the ground Supreme Court to dismiss on the ground correctly plaintiffs' that the the plaintiffs' claims claims were barred the one-year that were barred by by the statute of one-year statute of limitations limitations applicable to intentional (see CPLR intentional torts CPLR 215 215 [3]) to torts (see and, upon reargument, properly applicable upon [3]) and, reargument, properly determination." (2nd adhered to its its original original Doe v, adhered to determination." Doe 19 641,642 v. Jacobs, 19 A.D.3d A.D.3d 642 (2 nd Jacobs, 641, 2005). Dept., 2005). Dept., Langford these Both of these cases have have been defense of cases been cited by the and point. In of Both cited the defense and are on point. light are on In light of these these by the ninth and eleventh of causes of action action are dismissed dismissed as exceeding the statute of cases, the ninth and eleventh causes are as the statute of cases, exceeding limitations period. limitations period. Tenth Tenth Cause Cause of Action: of Action: tenth The tenth cause of action action in the the amended The cause of in complaint charges ''Negligent Infliction of amended complaint charges "Negligent of Infliction Distress." Emotional Distress.,, Emotional of action "A cause cause action recover "A of to damages for infliction of to recover damages for negligent negligent infliction of emotional emotional distress does not not require distress does aa showing of physical injucy but nmust generally be require of physical but "must be showing injury generally premised of a premised upon upon aa breach breach of owed directly to the plaintiff which either a duty to the plaintiff which either owed duty directly endangers unreasonably endangers aa plaintiffs plaintiff's physical physical safety or the plaintiff to or causes causes the plaintiff to fear fear unreasonably safety safety" her for safety'' (E.B. vv Liberation Liberation Publs., Pubis., 77 AD3d 566, 777 for his his or or her own own (E.B. AD3d 777 567, 566, 567, NYS2d 133 [2004]; Hecht v 221 AD2d 645 NYS2d 51 [1996]). NYS2d 133 Hecht v Kaplan, 221 AD2d 100,105,645 NYS2d 51 [1996]). ; [2004] Kaplan, 100, 105, Such claim must fail where, as here, '[n]o allegations of negligence negligence appear Such aa claim must fail as '[n}o allegations of appear in in here, where, pleadings' (Russo 73 AD2d AD2d 423 NY vv Iacono, Iacono, 73 913,913,423 NYS2d 253 [1980]). the the pleadings' (Russo S2d 253 [1980]). 913, 913, the plaintiffs made that the Moreover, the plaintiffs made no that conduct no allegation allegation the defendant's defendant's conduct Moreover, endangered the mother's or caused her unreasonably endangered the mother's physical safety physical or caused her to to fear for her her fear for unreasonably safety safety." (2nd nd Daluise v. Sottile, 40 A.D.3d 803-804 own v. 40 801, (2 Dept., 2007). own safety." Daluise A.D.3d 2007). Sottile, 801, 803-804 Dept., "Negligent Infliction of Distress (NIED) "Negligent Infliction Emotional Distress of Emotional (NIED) of an a breach of a to The of for NIED are breach of owed to The elements elements an action action for NIED are a a duty owed duty plaintiff which exposes him or or her her to to an an unreasonable risk of of bodily or plaintiff which exposes him risk bodily injury or unreasonable injury death 461 N.E.2d (Bovsun vv Sanperi, 61 NY2d 219,461 N.E.2d 843,473 N.Y.S.2d 357 death (Bovsun 61 NY2d 357 Sanperi, 219, 843, 473 N.Y.S.2d cause to physical injwy is element of of to [[1984]). 1984]). While While physical is not not a a necessary element of a a cause of action action injury necessary infliction emotional such of action must of distress, such a cause of action must recover for infliction recover for negligent negligent of emotional a cause distress, be upon conduct that unreasonably endangers aa plaintiffs plaintiffs generally be premised premised upon conduct that endangers generally unreasonably physical or causes fear for for her her own own (Saava safety (Saava vv Longo, Longo, 88 causes the plaintiff to fear physical safety or the plaintiff to safety safety v AD3d 779 N.Y.S.2d 129 Johnson New York Board 779 N.Y.S.2d 129 [2004]; Johnson v New York City Board of AD3d 551, 551, [2004]; City of of action action for Education, 210 310, N.Y.S.2d 281 A of for 270 AD2d AD2d 704 N.Y.S.2d 281 [2000]). [2000]). A cause cause Education, 310, 704 either intentional or negligent negligent of emotional emotional must be supported of distress must be supported either intentional or infliction infliction distress A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to A.M.P. v. Benjamin, Index No. 10/09/20 Decision Decision on Motion Motion to Dismiss. Pg. 10 10 Benjamin. EFCA2019003543, Dismiss, Pg. R-30 11 of 16 [*FILED: 11] BROOME COUNTY CLERK 10/23/2020 02:52 PM INDEX NO. EFCA2019003543 ...., RECEIVED NYSCEF: 10/23/2020 RECEIVED NYSCEF: 10 /23/2 RECEIVED NYSCEF: 10/23/2 NYSCEF DOC. NO. 72 NYSCEF DOC. NO. 71 NYSCEF DOC. NO~ 71 ... 'V',, ...--, ...,., ................. --- ...- . - - ,.., conduct "so outrageous in character, and so by allegations of by aa defendant "so in and of conduct' defendant outrageous so allegations character, by extreme to go beyond all possible bounds of and to be extrem~ in as to go beyond all possible bounds of decency, and to be in degree, as decency, degree, community" a civilized regarded as and utterly intolerable in community" (Murphy vv and utterly intolerable in a civilized regarded as atrocious, atrocious, (Murphy NY2d N.E.2d 461 N.Y.S.2d 448 58 American Home Home Prods. Prods. Corp., 58 NY2d 293,303,448 N.E.2d 86,461 N.Y.S.2d American 86, 293, 303, Corp., v Howell 232 [1983] Post [citation see also Howell v New York Post Co., NY2d 232 [citation omitted]; see also New York 81 NY2d Co., 81 omitted]; [1983] The I 15, 121-122, 596 N.Y.S.2d 350 [1993]). 612 N.E.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 The courts apply the [1993]). courts the 121-122, 699, apply the intentional intentional and negligence of emotional and theories of distress same standard to both the same negligence theories emotional distress standard to both (Young vv GSL Enters., 237 119,654 N.Y.S.2d 24 Naturman vv 237 AD2d AD2d 24 [1997]; GSL Enters., ; Naturman 119, 654 N.Y.S.2d [1997] (Young [1995]). Crain AD2d 628 281 Such extreme Crain Communications, 216 AD2d 150,628 N.Y.S.2d 281 [1995]). Such extreme 216 N.Y.S.2d Communications, 150, to survive and outrageous outrageous must for the and conduct must be clearly alleged for pleadings to conduct be alleged the pleadings survive clearly 251 dismissal (Trachtman vv Empire Empire Blue Blue Cross & Blue Shield, 2S 1 AD2d 322, dismissal (Trachtman Cross & Blue AD2d 673 Shield, 322, 673 2011 N.Y.S.2d 726 [1998]). N.Y. [1998]). Morris Rochdale Misc. LEXIS N.Y.S.2d 726 Morris yv Rochdale Vil,. Inc,. N.Y. Misc. LEXIS Vil., Inc., 2011 Queens 5969, *16-17 (S. Co., 2011). *16-17 (S. Ct., 2011). 5969, Co., Ct., Queens by "It is well-settled that a a person 'to whom a duty of care care is that person 'to of ... "It is well-settled whom a is owed owed . . . may duty may for harm harm result an initial, recover for sustained solely as of negligently-caused recover sustained as a a result of an negligently-caused initial, solely psychological but with psychic harm with residual physical psychological trauma, but with ensuing psychic hann with residual physical trauma, ensuing manifestations' ofNew (Johnson State 334 NE2d vv State of New York, [4137 NY2d 378,381,334 NE2d manifestations' (Johnson York, 378, 381, [4] 37 NY2d omitted]). breach 372 NYS2d 638 [citations A of the of care S90, 372 NYS2d 638 [1975] [citations omitted]). A breach of the duty of care 590, [1975] duty in emotional harm is even though no physical compensable in emotional hann is compensable even though no physical 'resulting directly 'resulting directly occurred' 448 NE2d 58 NY2d vv McKesson McKesson Co., NY2d 500, 504, NE2d 1332, injury occurred' (Kennedy Co., 58 500, 504, 448 1332, injury (Kennedy 421 [1983]) when the mental is rather than a 462 NYS2d 'a 462 NYS2d 421 when the mental injury is 'a direct, rather than a .. direct, [1983]) injury breach" result of the the breach" (id. (id. at at 506) and when when the claim claim possesses consequential, result of and the possesses consequential, 506) genuineness' v 'some guarantee of (Ferrara 5 NY2d 152 NE2d 'some guarantee of genuineness' (Ferrara v Galluchio, 5 NY2d 16, NE2d Galluchio, 16, 21, 21, 152 249, 176 NYS2d 996 [ 1958]). Applying these principles to negligent infliction of 176 NYS2d 996 [1958]). these principles to negligent infliction of 249, Applying emotional distress claims from exposure to HIV, New York courts have emotional distress claims arising from exposure to New York courts have HIV, arising required plaintiffs who have have not tested HIV positive to come come forward with proof HIV positive to forward with proof required plaintiffs who not tested anothar were HIV [** due to to the the negligence negligence of another party, of party, they exposed to 1190] that, due exposed to HIV that, they were [**1190] through 'a of of accepted method transmission the virus virus .. . and and that that through 'a scientifically accepted method of transmission of the ••. scientifically positive' the source source of the blood in HIV the of transmitted blood or fluid was in fact HIV positive' the allegedly transmitted or fluid was fact allegedly (Bishop vv Mount Mount Sinai Med. Ctr., 247 329, 331, NYS2d 530 Dept Sinai Med. 247 AD2d AD2d 669 NYS2d 530 [1st [Ist Dept Ctr., 329, 331, 669 (Bishop [internal quotation see O'Neill v 264 1998] [internal quotation marks omitted]; see O'Neill v O'Neill, 264 AD2d 766, marks AD2d omitted); O'Neill, 766, 1998] 694 NYS2d [2d Dept], 772 [2d ly dismissed 94 NY2d 704 NYS2d 725 694 NYS2d 772 /v dismissed 94 NY2d 858, NYS2d 533, 725 Dept], 858, 704 533, NE2d 1095 [1999]; Health AD2d NE2d 1095 Mclarney vv Community Health Plan, Plan, 250 310,680 250 AD2d 680 ; McLarney [1999] 310, Community NYS2d 281 [3d [3d Dept Dept lv dismissed NYS2d 281 1998], Iv 93 NY2d 848, NYS2d 495, 710 dismissed 93 NY2d 688 NYS2d 710 1998], 848, 688 495, [1999])." 1094 NE2d ornstein York & Hasps. Hosps. v. New City NE2d 1094 [1999])." Ornstein v. New York City Health & Com., 10 Health 10 Corp., N.Y.3d 6 (2008). N.Y.3d I, 6 (2008). 1, has satisfied Plaintiff satisfied the extreme, PJaintiffhas the outrageous, utterly intolerable conduct allegations in intolerable conduct allegations in extreme, outrageous, utterly the amended amended The Plaintiff the complaint. The has pled the physical aspects of complaint. Plaintiff has sparsely pled the physical aspects of the the damages, damages, sparsely at this this early in the point the action, the court court that the the allegations however, at point in the finds that are to fmds allegations are sufficient sufficient to however, action, early avoid dismissal. avoid dismissal. Thirteenth Cause Thirteenth Cause of Action: of Action: A.M.P. v. Benjamin, Index No. Decision A.M.P. v. Index No. EFCA2019003543, 10/09/20 Decision on to Pg. 10/09/20 on Motion to Dismiss, Motion Pg. 11 Bcñjamin, EFCA2019003543, Dismiss, R-31 12 of 16 ..... [*FILED: 12] BROOME COUNTY CLERK 10/23/2020 02:52 PM NYSCEF DOC. NO. 72 NYSCEF DOC. NO. 71 NYSCEF DOC. NO. 71 ~ . . ,-<al,_..,._.., ~-. ~. INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED NYSCEF: 10/23/2 RECEIVED NYSCEF: 10/23/2 The thirteenth thirteenth cause of action action in the the amended amended complaint The cause of in complaint charges, "Violation of "Violation of Judiciary charges, Judiciary 487." Law 487." Law Section Section · the pleadings in plaintiff's favor Liberally construiµg the pleadings in plaintiffs favor and the offered as and accepting the facts facts offered as Liberally construing accepting [3'drd as the court must do v. Power Niagara Mohawk 286 AD2d 522 do (McNeazy v. Niagara Mohawk Power Com., 286 AD2d 522 [3 Dept., tru~ as the court must (McNeary true, Cog., Dept., to be sufficient. the court court finds the pleadings on this this cause to be 2001]), the finds the pleadings on cause sufficient. 2001]), Fourteenth Cause of Cause Action: of Action: Fourteenth Damages." fourteenth of action action The cause of in complaint charges, "Punitive Damages." The fourteenth cause in the the amended amended "Punitive complaint charges, "New York does not recognize an independent cause of action for punitive an cause of for punitive "New York does not recognize independent action damages. demand or request request for punitive '[a] demand or for punitive damages is and damages is ~sitic parasitic and damages. Instead, Instead, '[a] action' possesses no viability absent possesses no absent its to cause of its attachment attachment to a a substantive substantive cause of action' viability NY2d (Rocanova Socy. (Rocanova vv Equitable Equitable Life Life Assur. Assur. Socy. of U.S., 83 NY2d 603, 616, NE2d 83 634 NE2d 603, 616, 634 of U.S., 612 NYS2d [1994]). Demands for punitive 612 NYS2d 339 Demands for punitive damages usually arise in 339 [1994]). damages arise in the the 940, 940, usually context of intentional intentional torts as fraud, of torts such libel, or malicious prosecution, and such as or malicious and context fraud, libel, prosecution, the availability therefore of therefore the of punitive damages is often discussed in of punitive damages is often discussed in terms terms of availability that is conduct is intentional, and done conduct that maliciou~ and in bad faith. In Ross vv Louise Louise Wise done in bad faith. In Ross Wise intentional, malicious, for the sole cause Servs., Inc., for example, the sole cause of action in issue was based on wrongful of action in issue was based on wrongful Servs., Inc., example, adoption and common-law common-law and fraud, which, as noted, required proof, inter as the the court court required inter adoption fraud, which, noted, proof, a false the specific deceive of a false representation made with the specific intent to deceive the plaintiff of representation made with intent to the plaintiff alia, alia, Wise Servs., (see Ross at 488). In other (see Ross vv Louise Louise Wise Inc., 88 NY3d NY3d at In contexts, however~ 488). other Servs., Inc., however, contexts, well-settled that conduct award 'need itit is that warranting an of punitive damages 'need not is well-settled conduct an award of punitive damages not warranting be may consist of actions which constitute willful or be intentionally hannful but harmful but consist of actions which constitute willful or intentionally may recklessness' negligence or Ins. Co. American Home Home Prods. Prods. wanton or recklessness• (Ho.me (Home Ins. Co. v v American wanton negligence NY2d Corp., 75 NY2d 196,204,550 NE2d 930,551 NYS2d 481 [1990]; see e.g. 75 550 NE2d 551 NYS2d 481 see e.g. 196, 204, 930, ; Corp., [1990] Guariglia vv Price Price Chopper Operating Co., Inc., 38 1043, 830 NYS2d 871 Guariglia Chopper 38 AD3d AD3d 830 NYS2d 871 Co., Inc., 1043, Operating lv denied denied 872 NE2d 840 NYS2d Gruber [2007), Iv 99 NY3d NY3d 801, NE2d 252, 840 NYS2d 566 Gruber vv 566 [2007]; [2007], 801, 872 252, [2007]; or 208 AD2d 84 [1994]). Such Craig, 208 AD2d 900,901,618 NYS2d 84 [19941). Such wantonly negligent or negligent 618 NYS2d 900, Craig, 901, wantonly blameworthy,' conduct must be ~ust be 'sufficiently blameworthy,' and of punitive reckless conduct and the the award award of punitive reckless 'sufficiently damages must advance of the State its future aa strong public policy of the State by deterring its future damages must advance public policy by deterring strong [1993]). violation (Doe vv Roe, Roe, 190 463, 474-475, ·599 NYS2d 350 Indeed, violation (Doe 190 AD2d AD2d 599 NYS2d 350 [1993)). 463, Indeed, 474-475, Appeals a goal punitive or as of has said, a principal goal of punitive or exemplary as the the Court Court of Appeals has often often principal of said, exemplary conduct' to 'deter 'deter future reprehensible the wrongdoer 'and others damages is future reprehensible conduct' by the wrongdoer 'and others damages is to by situated' [citations (Ross Wise Servs at 479,489 489 [citations vv Louise Louise Wise Inc., 88 NY3d NY3d at similarly situated' (Ross Servs., .• Inc., 479, similarly see v Shearson Lehman 84 NY2d 642 see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 316, omitted]; Zurich Ins. Co. Hutton, 309, 316, 642 omitted]; Farm 618 NYS2d 609 [1994]; Soto v State 83 NY2d NE2d 1065, 618 NYS2d 609 Soto vState Farm Ins. Ins. Co., NY2d 718, NE2d 718, 1065, [1994]; Co., 83 Walker 10 NY2d 613 NYS2d 352 vv Sheldon, IO NY2d 401, 724,635 NE2d 1222, 613 NYS2d 352 [1994]; 635 NE2d Sheldon, 401, 1222, ; Walker 724, [1994] Belli NE2d 488 see also Sufolk Sports Ctr. v 179 NE2d 497, 223 NYS2d 488 [ 1961]; see also Suffolk Sports Ctr. v Belli 179 223 NYS2d 404, 404, 497, [1961]; We decline 952 [1995]). [1995]). decline to hold, 212 AD2d Constr. Corp., 212 241,247,628 NYS2d 952 We to Constr. AD2d 241, hold, Corp., 247, 628 NYS2d done evil that only conduct with as our our dissenting colleagues as colleagues apparently would, that conduct done with evil would, only dissenting apparently or in in bad faith through punitive damages. Courts in bad faith warrants deterrence through punitive damages. Courts in motive warrants deterrence motive or to this state state have have recognized that those those without to this long recognized that who, without specifically intending who, intending long specifically Motion to Dismiss, Pg. 12 12 A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to Pg. A.M.P. v. Benjamin, Index No. 10/09/20 Decision Decision on Motion Benjamin, EFCA2019003543, Dismiss, R-32 13 of 16 [*FILED: 13] BROOME COUNTY CLERK 10/23/2020 02:52 PM NYSCEF DOC. NO. 72 NYSCEF DOC. NYSCEF DOC. NO NO~ ........... ._. . . . . . . . . . . . . w ...... ~'W', ----, ...... _... ~ ... _, .. .... , INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECE IVED NYSCE F: 10/23/2( RECEIVED NYSCEF: 10/23/2( 71 71 • cause cause harm, nevertheless nevertheless engage engage in in grossly negligent negligent or or reckless reckless conduct conduct showing harm, showing grossly be of the the an disregard for or rights of others, may also be deserving of utter disregard for the the safety or rights of also an utter others, safety may deserving v American of punitive damages (see Home Ins. Ins. Co. American Home Home Prods. Prods. imposition imposition of punitive damages (see e.g. e.g. Home Co. v 481 NY2d 550 551 NYS2d [products Corp., 75 NE2d 930,551 NYS2d 481 [1990] [products liability 75 NY2d 196,550 NE2d 196, 930, Corp., liability [1990] 73 NY2d 532 to Giblin v Murphy, 73 NY2d 769,532 NE2d 1282, action based on action based on failure failure to warn]; Giblin v NE2d Murphy, 769, 1282, ; warn] proof of outright outright 536 NYS2d 54 [breach of duty without proof of fraud]; 536 NYS2d 54 [1988] [breach of fiduciary without fraud]; fiduciary duty [1988] Gas Distrib.. 42 AD3d 834 Fordham~Coleman vv National National Fuel Fuel Gas Distrib.. Corp., 42 106, Fordham-Coleman AD3d Corp., 106, 834 [negligent Public Service NYS2d 422 [negligent failure to fuel under Public Service Law]; NYS2d 422 [2007] failure fuel under to supply Law); [2007] supply 830 NYS2d 871 Guariglia Guariglia vv Price Price Chopper Operating Co., Inc., 38 1043, 830 NYS2d 871 Chopper 38 AD3d AD3d Co., Inc., 1043, Operating NYS2d 566 [2007], Iv denied 9 NY3d 801, 872 NE2d 252, 840 NYS2d 566 [2007] denied NY3d 872 NE2d 840 ly 9 801, 252, [2007), [2007] Colombini Colombini vv [negligence prescription drugs within reach of toddler]; [negligence in prescription drugs within reach of in leaving toddler]; leaving 808 Westchester AD3d NYS2d 705 24 AD3d 712,715,808 NYS2d 705 Westchester County.Healthcare Corp., CountyHealthcare 24 712, 715, Corp., failure to materials from an MRI MRI magnet]; [2005] [negligent failure to keep ferrous materials away from an [negligent ferrous magnet]; away [2005] keep [negligent Sosa vv Ideal Ideal El. El. Corp., 216 128, NYS2d 253 [negligent Sosa 216 AD2d AD2d 629 NYS2d 253 [1995] 128, 629 Corp., (1995] maintenance of elevator]; v AD2d 618 NYS2d 84 [1994] of Gruber Gruber v Craig, 208 208 AD2d 900,618 NYS2d 84 maintenance Craig, 900, elevator]; [1994] Women's 201 [negligent failure to repair repair gas pipe] to gas pipe];; Figueroa Figueroa vv Flatbush Flatbush Women's Servs., 201 [negligent failure Servs., in performance AD2d 608 NYS2d 235 [medical malpractice AD2d 613, 613-614, 608 NYS2d 235 [1994] [medical malpractice in performance 613, 613-614, [1994] of abortion]; Doe v 190 AD2d at 474-476 [unauthorized disclosure of of Doe v Roe, 190 AD2d at 474-476 [unauthorized disclosure of abortion]; Roe, HIV-status information in of Health Law]; vv HIV-status information in violation violation of Public Public Health Graham ; Graham Law] [negligent NYS2d 185 AD2d 753,588 NYS2d 2 [1992] [negligent Co/umbia-Presbyt. Med Ctr., Columbia-Presbyt. Med. 185 AD2d 588 2 Ctr., 753, [1992] abandonment physician of unstable patient by physician of physically unstable patient during treatment]; . abandonment ; during treatmcat] by physically AD2d 585 NYS2d while Rinaldo vv Mashayekhi, Mashayekhi, 185 585 NYS2d 615 [driving while Rinaldo 185 AD2d 435, 615 [1992] 435, [1992] [driving 145 AD2d 536 McWilliams Catholic Diocese Mc Williams v Catholic Diocese of Rochester, 145 AD2d 904,536 intoxicated]; v 904, ; of Rochester, intoxicated] [mistreatment in community residence NY S2d 285 285 [1988] of patient for mentally NYS2d [mistreatment of patient in residence for [1988] community mentally (2°dnd A.D.3d 80-82 Is. 46 retarded persons]). Randi Randi A. J, v. Long Is. Surgi-Center, 46 A.D.3d 74, 80-82 (2 retarded persons]). A._J._v, Long Surgi-Center, 74, 2007). Dept., 2007). Dept., of action, dismissed the outset. the third third cause for punitive is dismissed uAt the the cause of for punitive damages, is outset, action, damages, in inasmuch as York does an cause in its its entirety, inasmuch as 'New 'New York does not not recognize recognize an independent independent cause entirety, damages' AD3d of for punitive damages' ((Gershman Gershman vv Ahmad, Ahmad, 156 868, 868 [2d of action action for punitive 156 AD3d 868 [2d 868, 2017])." Dept Contr. Beach Youth & Family Roxbury v. Long v. Beach Youth & Servs., 2020 N.Y. Dept 2017]).n Roxbury Contr. 2020 N.Y. Long Family Servs., 2020). Misc. LEXIS *3 (S. (S. Ct, Suffolk Misc. LEXIS 6235, *3 Co., 2020). Ct, Suffolk Co., 6235, "At although for punitive damages was erroneously "Finally, although the for punitive damages was set the request request set "Finally, erroneously in a a separate separate of action, was not not improper improper forth cause it was for the the Suprem" Supreme Court to forth in cause of it for Court to action, deem that cause cause of action action demand for damages damages in the the first first cause of action deem that of aa demand for in cause of (see, action (see, 732)." 143 AD2d AD2d Classic Appraisals Laufer vv Rothschild, Rothschild, Unterberg, Towbin, 143 732)." Classic Ap_prai5als Unterberg, Towbin, (2"dnd Corp. v. DeSantis, 159 A.D.2d A.D.2d 538 (2 1990). Corp. v. 159 537, 538 Dept., 1990). DeSantis, 537, Dept., Laufer The separate fourteenth cause of action is dismissed. Punitive of is Punitive damages are The separate fourteenth cause dismissed. damages are already action already demanded in the the first first cause of action. action. cause of demanded in Fifteenth Cause Fifteenth Cause o/Action: of Action: A.M.P. v. Benjamin, Index No. on Motion A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to 10/09/20 Decision Decision Motion to Dismiss, Pg. l3 13 Benjamin, Dismiss, Pg. EFCA2019003543, R-33 14 of 16 .. .....--. ...---.-... .... NYSCEF DOC. NO. 72 [*FILED: 14] BROOME COUNTY CLERK 10/23/2020 02:52 PM ...-~ . NYSCEF NYSCEF DOC. DOC. ~~ NO. NO. ..... ----........... ..,_...,......, ---..- - .__ ... , -~·, _..,_.... --, ...-, ~ 71 71 ................, ...~ . - - ..., INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED RECEIVED NYSCEF: 10/23/2 NYSCEF: 10/23/2 • The fifteenth fifteenth cause of action action The cause of in complaint alleges vicarious liability on in the the amended complaint amended alleges vicarious on the the liability law part office. part of the law office. Attorney Benjamin repeats his that is Benjamin repeats his arguments arguments that his his law law office office is not a not a Attorney separate entity. separate entity. of the As indicated indicated the court court this should As previously, the feels this await the of but feels should await the completion completion of discovery, but previously, discovery, if appropriate, the court court is willing if the is to address the matter again at that time. to address the matter again at time. that appropriate, willing Sanctions: Sanctions: As Attorney Benjamin has presented more As Beajamin has presented more cogent ~ents and this cogent arguments and case case law law with this with Attorney the court does not believe that sanctions motion, the court does not believe that sanctions are appropriate. are appropriate. motion, Sealing: Sealing: The motion motion to seal seal papers which of the The to papers which reveal the of plaintiff is and reveal the plaintiff the identity is granted granted and such such identity are sealed. sealed. Defendants papers directed to redact are directed plaintiff's plaintiffs identifying information from redact papers are Defendants are to information from identifying future filings and to to provide copies future filings and provide redacted copies of filed papers. redacted of already filed papers. already SUMMARY/ORDER: SUMMARY/ORDER: it is Therefore, it is hereby Therefore, hereby that the the Second Second of Action ORDERED, that Cause of isis dismissed, as to sufficient Cause Action as it it fails fails to set set forth forth sufficient ORDERED, dismissed, factual allegations to bring it within within of Section to bring it the of 79-n CRL, and it is further the ambit ambit factual allegations Section and it is further 79-n CRL, that the the motion motion to dismiss is denied to is as Cause of and ORDERED, that dismiss denied as to to the the Third Third Cause of Action, it is and it is ORDERED, Action, further further that the to dismiss the motion motion disadss is denied denied as to ORDERED, that to is as Cause of and to the the Fourth Fourth Cause of Action, and it it ORDERED, Action, further is is further Fifth that the the Fifth Cause of Action Action is dismissed, it is ORDERED, that Cause of is and and it is further further ORDERED, dismissed, that as as to to the the Seventh Cause of Action, ORDERED, that Cause of subsections (t) (I) Seventh subsections through are ORDERED, Action, (f) through (1) are and and it is further it is further stricken, stricken, that the the motion to dismiss to is as Cause of and ORDERED, that motion dismiss is denied denied as to to the the Eighth Eighth Cause and it of Action, it ORDERED, Action, . is further is further that the the Ninth and Eleventh Eleventh Causes of Action Action are dismissed dismissed the Causes of are as the ORDERED, that Ninth and as exceeding ORDERED, exceeding of and of limitations, and it is further statute statute it is further limitations, that the the motion motion to dismiss dismiss is denied denied as to to is as and Causes of to the the Tenth Tenth and Thirteenth Thirteenth Causes of ORDERED, that ORDERED, Action, and it is further and it is further Action, A.M.P. v. Benjamin, Index No. Decision to Dismiss, A.M.P. v. Index No. EFCA2019003543, 10/09/20 on to Pg. 10/09/20 Decision on Motion Motion Pg. 14 Benjamin, EFCA2019003543, Dismiss, R-34 15 of 16 •. _. -- . [*FILED: 15] BROOME COUNTY CLERK 10/23/2020 02:52 PM ....--. ----.... -.... ...-,--,..---- - - , _..,_..,. ......- . - . .,.. ~Vf NYSCEF DOC. NO. 72 NYSCEF DOC. NYSCEF DOC. • NO. NO. I 71 71 .. . • INDEX NO. EFCA2019003543 RECEIVED NYSCEF: 10/23/2020 RECEIVED RECEIVED NYSCEF: 10/23/: NYSCEF: 10 / 23 /: York not that the Fourteenth Cause Action is dismissed, ORDERED, that Cause of is as New York does as New does not the Fourteenth of Action dismissed, ORDERED, daranges separate action for punitive punitive are recognize cause of of action for punitive damages, and, punitive damages are already recognize aa separate cause and, damages, already under the First First Cause of Action, and it it is is further further requested of and requested under the Cause Action, that the the motion is at at this this time time denied as to to the the Fifteenth Fifteenth Cause of to is denied as Cause of motion to dismiss dismiss ORDERED, that ORDERED, Defendant to renew renew his motion, if appropriate, the completion completion of Action, allowing the his if following the of the Defendant to motion, appropriate, Action, allowing following and further discovery, and it it is is further discovery, request is denied, is and that the the request for sanctions sanctions against Benjamin and it it is ORDERED, that for against Attorney Benjamin is ORDERED, denied, Attorney further further that the the papers are to to be ORDERED, that papers filed identifying the plaintiff are be sealed, Attorney filed the plaintiff ORDERED, sealed, identifying Attorney replacement of the inclusion in the is pages obscuring the identity of the plaintiff for inclusion in Beñjamin is to to file file replacement pages the plaintiff for the Benjamin obscuring identity record disclosed filings. and plaintifrs identity is be disclosed in filings. public and that that plaintiff's is not not to to be in future future public record identity constitutes opinion and order order of the and of This the decision, the court. court. This constitutes the opinion decision, October Dated: 2020 Dated: October!!, , 2020 RICHARD W. RICH, JR. RICHARD W. JR. RICH, Supreme Acting Supreme Court Justice Court Justice Acting ~[1 {b[§[Q) OCT 0CT 28 28 2020 2020 BROOME BROOME COUNTY COUNTY CLERK CLERK A.M.P. v. Benjamin, Index No. 10/09/20 Decision on Motion A.M.P. v. Index No. EFCA20l9003543, 10/09/20 Decision on to Pg. Motion to Dismiss, Pg. 15 15 Benjeria, EFCA2019003543, Dismiss, R-35 16 of 16

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