Sokola v Weinstein

[*1] Sokola v Weinstein 2023 NY Slip Op 23047 Decided on February 7, 2023 Supreme Court, New York County Tisch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 7, 2023
Supreme Court, New York County

Kaja Sokola, Plaintiff,

against

Harvey Weinstein, ROBERT WEINSTEIN, THE WALT DISNEY COMPANY, DISNEY ENTERPRISES, INC., MIRAMAX HOLDING CORP., MIRAMAX FILM NY LLC, DOE CORP. 1-10, Defendants.



Index No. 950250/2019


Attorneys for Plaintiff
Wigdor LLP
Douglas H. Wigdor, Esq.
Bryan L. Arbeit, Esq.
85 Fifth Avenue
New York, NY 10003
Tel.: 212-257-6800
dwigdor@wigdorlaw.com barbeit@wigdorlaw.com

The Law Office of Kevin Mintzer, PC
Kevin Mintzer, Esq.
1350 Broadway, Suite 1400
New York, NY 10018
Tel.: 646-843-8180
km@mintzerfirm.com

Attorneys for Defendant Harvey Weinstein
Aidala Bertuna & Kamins PC
Imran A. Ansari, Esq.
546 Fifth Avenue, 6th Floor
New York, NY 10036
Tel.: 212-486-0011
iansari@aidalalaw.com

Attorneys for Defendant Robert Weinstein
Schulte Roth & Zabel LLP
Gary Stein, Esq., Brian T. Kohn, Esq., Abigail F. Coster, Esq.
919 Third Avenue
New York, NY 10022
Tel.: 212-756-2000
Gary.stein@srz.com, brian.kohn@srz.com, Abigail.coster@srz.com

Attorneys for Defendant Miramax Film NY LLC f/k/a Miramax Film Corp.
Latham & Watkins LLP
Marvin Stanley Putnam, Esq.
10250 Constellation Boulevard, Suite 1100
Los Angeles, CA 90067
Tel.: 424-653-5588
Marvin.putnam@lw.com

Attorneys for remaining Defendants
Cravath Swaine & Moor LLP
Evan R. Chesler, Esq., J. Wesley Earnhardt
825 Eighth Avenue
New York, NY 10019
Tel.: 212-474-1243
echesler@cravath.com
Alexander Tisch, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 31, 35, 43, 44, 45, 55, 63 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 10, 11, 12, 13, 14, 32, 36, 46, 47, 48, 56, 64 were read on this motion to/for DISMISS.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 27, 28, 34, 38, 52, 53, 54, 58, 62 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, all defendants move to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7).[FN1]

BACKGROUND

Plaintiff commenced the instant action on December 19, 2019 pursuant CPLR 214-g of the Child Victims Act (CVA)[FN2] asserting a cause of action for battery against Weinstein and a cause of action for negligence against defendants Robert Weinstein (RW), The Walt Disney Company and Disney Enterprises Inc. (together, Disney), Miramax Holding Corp. (MHC), and Miramax Film NY, LLC (Miramax).[FN3]

The facts set forth in the complaint are as follows: In the late 1970s, defendants Harvey and Robert Weinstein created an independent film-distribution company named Miramax, which grew in prominence in the film industry throughout the 1980s and subsequent years for producing and distributing "films that achieved both critical attention and commercial success" (see NYSCEF Doc No 1, complaint at ¶ 22-26). By the time of plaintiff's alleged assault in 2002, the brothers "had become enormously powerful and influential producers in the film and television industry" (id. at ¶ 27). Plaintiff also alleges that, by 2002, Weinstein "developed a propensity for sexually harassing, sexually assaulting, and/or attempting to sexual assault women who worked or were seeking to work in the film industry" (id. at ¶ 28). "Using the power, influence and resources of his position at Miramax, Harvey Weinstein often met privately with women who were seeking acting roles in Miramax productions. During many of these meetings, which were supposed to be for business purposes, Harvey Weinstein sought sexual contact with the women whom he had induced to see him, using promises of career assistance, threats of career destruction and physical force to overcome the resistance of women who did not wish to have sexual contact with him" (id. at ¶ 29).

In or about September of 2002, plaintiff Kaja Sokola met defendant Harvey Weinstein [*2](Weinstein) at an event in Manhattan associated with her modeling agency. Plaintiff, then 16 years old, told Weinstein she wanted to become an actress and Weinstein allegedly said that they will have lunch to discuss her career.

Approximately three days later, Weinstein called plaintiff advising that he would pick her up for lunch. They did not go to a restaurant for lunch but to Weinstein's apartment instead. "Once alone with Sokola, Harvey Weinstein wasted no time in aggressively and threateningly demanding sex. He told her that if she wanted to be an actress, she would have to be comfortable doing whatever the director told her to do-including losing her inhibitions and getting naked. He then instructed Sokola to take off her clothes" (id. at ¶ 39). The complaint continues to allege that he proceeded to forcibly touch her and made her touch herself; plaintiff alleges she did not consent and continually stated the same.

During the alleged assault "Harvey Weinstein threatened and pressured Sokola, saying that he had 'made' the careers of Penelope Cruz and Gwyneth Paltrow, and that neither would be working without him. He intimated that Sokola would never work as an actress unless she acquiesced to his demands" (id. at ¶ 42).

After Weinstein ejaculated on the floor, plaintiff "tried to leave the apartment, but she could not get out because Weinstein was blocking the door, holding her arms and yelling at her to calm down" (id. at ¶ 46). "Weinstein insisted that what had just happened was normal. [Plaintiff] began to scream at Harvey Weinstein, telling him that she did not want to touch him or do what he wanted of her," which allegedly made Weinstein angry (id. at ¶ 46).

Weinstein contacted plaintiff a week later to ask how she was doing, and plaintiff alleges that he "thereafter persisted in his pursuits against [her] and took every opportunity to make sure that she understood that he was the only person who could help her become an actress" (id. at¶ 50).

DISCUSSION

When deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), a plaintiff's "allegations are presumed to be true and accorded every favorable inference"; however, "conclusory allegations . . . consisting of bare legal conclusions with no factual specificity" will not suffice (Godfrey v Spano, 13 NY3d 358, 373 [2009]; see Goldfarb v Schwartz, 26 AD3d 462, 463 [2d Dept 2006]). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Additionally, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

Negligent Retention & Supervision

"It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff" (Pulka v Edelman, 40 NY2d 781, 782 [1976]). "In the absence of duty, there is no breach and without a breach there is no liability" (id.).

There is generally no duty to control the harm-producing conduct of a third party (i.e., the tortfeasor) absent a special relationship either between the defendant and the plaintiff or the defendant and the tortfeasor (see Pulka, 40 NY2d at 783; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [2001], op after certified question answered, 264 F3d 21 [2d Cir 2001]).

"The key in each is that the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" (Hamilton, [*3]96 NY2d at 233; see, e.g., 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 289 [2001] ["Landowners, for example, have a duty to protect tenants, patrons and invitees from foreseeable harm caused by the criminal conduct of others while they are on the premises, because the special relationship puts them in the best position to protect against the risk"])."That duty, however, does not extend to members of the general public"; thus, circumscribing liability "because the special relationship defines the class of potential plaintiffs to whom the duty is owed" (532 Madison Ave. Gourmet Foods, 96 NY2d at 289).

However, in the case of the special relationship at issue here, between an employer and employee, the focus is not on the potential plaintiff, but on the employer and its relationship with the defendant-tortfeasor (see Waterbury v New York City Ballet, Inc., 205 AD3d 154, 161 [1st Dept 2022]). This is because "[t]he negligence of the employer . . . arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee" (Sheila C. v Povich, 11 AD3d 120, 129 [1st Dept 2004]; see Roe v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church, 198 AD3d 698, 699-702 [2d Dept 2021], quoting Johansmeyer v New York City Dept. of Educ., 165 AD3d 634, 634-37 [2d Dept 2018]; see also Doe v Congregation of the Mission of St.Vincent De Paul in Germantown, 2016 NY Slip Op 32061[U] at *6 [Sup Ct, Queens County 2016] [hereinafter Doe v Congregation]). Thus, "the duty of care in supervising an employee extends to any person injured by the employee's misconduct" (Waterbury, 205 AD3d at 162).

With these principles in mind and as explained below, this Court finds that, to state a claim for negligent hiring, retention or supervision under New York law, a plaintiff must plead, in addition to the elements required for a claim of negligence:[FN4] (1) the existence of an employee-employer relationship; (2) "that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept 1997]; Sheila C., 11 AD3d at 129-30); and (3) "a nexus or connection between the defendant's negligence in hiring and retaining [or supervising] the offending employee and the plaintiff's injuries" (Roe, 198 AD3d at 701; Gonzalez v City of New York, 133 AD3d 65, 70 [1st Dept 2015] ["what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance"]; see Waterbury, 205 AD3d at 161-62; Anonymous v Dobbs Ferry Union Free School Dist., 290 AD2d 464, 464-65 [2d Dept 2002]; K.I. v New York City Bd. of Educ., 256 AD2d 189, 189-192 [1st Dept 1998]; see also Farrell v Maiello, 38 AD3d 592, 592-93 [2d Dept 2007]; R. v R., 37 AD3d 577, 578-79 [2d Dept 2007]; Lemp v Lewis, 226 AD2d 907, 907-08 [3d Dept 1996]).

Employment Relationship [FN5]

"Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results" (Castro-Quesada v Tuapanta, 148 AD3d 978, 979 [2d Dept 2017], quoting Matter of O'Brien v Spitzer, 7 NY3d 239, 242 [2006] [internal quotations omitted]). A [*4]predominant factor of whether an employment relationship exists is the extent of the employer's power to order and control the employee's performance of work (Castro-Quesada, 148 AD3d at 979, quoting Barak v Chen, 87 AD3d 955, 957 [2d Dept 2011]; Griffin v Sirva, Inc., 29 NY3d 174, 185-86 [2017]). Factors include "'(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct'" (Griffin, 29 NY3d at 186, quoting State Div. of Human Rights v GTE Corp., 109 AD2d 1082, 1083 [4th Dept 1985]).

Defendant MHC

Plaintiff alleges that MHC was a subsidiary of one of the Disney entities but does not allege a specific employment relationship between MHC and Weinstein or duty of care owed on the part of MHC, particularly in comparison to the detailed allegations of the other defendants. Based on plaintiff's own allegations in the complaint that Miramax (Miramax Film NY, LLC) assumed the liabilities of Miramax Film Corp., and that Weinstein had employment agreements with Miramax and Disney, but not MHC, the Court finds that any suggestion that MHC should be held liable as an employer is contradictory and, accordingly, the complaint fails to state a claim against MHC (see, e.g., Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 430 [2d Dept 2005]). The Court rejects plaintiff's contention in opposition that discovery would be necessary to show whether MHC is a proper defendant (see Kornfeld v Chen Hua Zheng, 185 AD3d 420, 421 [1st Dept 2020]; HT Capital Advisors v Optical Resources Group, 276 AD2d 420 [1st Dept 2000]).

Disney Defendants

Contrary to defendants' contentions, the complaint sufficiently alleges an employment relationship with Disney, including the existence of employment agreements between Weinstein and the Disney entities (see complaint at ¶¶ 15-17, 89) and specifically named Disney executives or employees that exercised oversight over Miramax and Weinstein, and to whom Weinstein directly reported (id. at ¶¶ 90-91). Accordingly, the Court finds that, at least at this juncture, there is a sufficient basis to hold Disney liable for a negligent supervision and/or retention claim as an "employer," without resorting to any corporate-veil-piercing arguments as between Disney and Miramax, as the allegations of Disney's employment relationship with Weinstein are not "barebone" legal conclusions that would be insufficient to withstand a motion to dismiss (see, e.g., Vestal v Pontillo, 158 AD3d 1036, 1038 [3d Dept 2018]).

Defendant Robert Weinstein

Plaintiff alleges that RW may be held individually liable for negligent supervision and retention. "A corporate officer is not held liable for the negligence of the corporation merely because of his official relationship to it. It must be shown that the officer was a participant in the wrongful conduct" (Aguirre v Paul, 54 AD3d 302, 304 [2d Dept 2008], quoting Clark v Pine Hill Homes, Inc., 112 AD2d 755, 755 [4th Dept 1985] [internal quotation marks omitted]; see Fletcher v Dakota, Inc., 99 AD3d 43, 49 [1st Dept 2012] ["a director may be held individually liable to third parties for a corporate tort if he either participated in the tort or else 'directed, controlled, approved, or ratified the decision that led to the plaintiff's injury'"], quoting 3A Fletcher, Cyclopedia of Corporations § 1135). This is so "regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced" (American Express Travel Related Servs. Co. v North Atl. Resources, 261 AD2d 310, 311 [1st Dept 1999]; see Peguero v 601 Realty Corp., 58 AD3d 556, 558-59 [1st [*5]Dept 2009]).

Plaintiff's theory of liability against RW [FN6] in terms of negligent supervision or retention is that he "directed, controlled, approved, or ratified" the negligent acts or decisions to retain Weinstein or otherwise negligently supervised him, which could have avoided the foreseeable harm. In this vein, the Court finds that the complaint adequately alleges a claim against RW individually for negligent supervision and retention because of the allegations that RW knew about Weinstein's predatory behavior, prior sexual assaults, and actively assisted and/or participated in their settlements or otherwise helped conceal the same (complaint at ¶¶ 53-66) (see, e.g., Sisino v Island Motocross of NY, Inc., 41 AD3d 462, 464-65 [2d Dept 2007] [plaintiff did not allege the individuals were "vicariously liable" for the corporate tort; rather, the individuals "were personally responsible for the policy that permitted ATVs and motocross bikes to simultaneously share the same track during practice sessions, one of the allegations underlying the plaintiff's contention that the defendants increased the risks inherent in the sport of motocross"]; Dooley v Metro. Jewish Health Sys., 02-CV-4640(JG), 2003 WL 22171876, at *11 [EDNY July 30, 2003] [finding individual board members could be found liable for negligently hiring two employees]; Donkov Realty, LLC v Radjb Realty Inc., 2008 NY Slip Op 31967[U], 2008 WL 2785622 [Sup Ct, New York County July 8, 2008] [Bransten, J.] [denying motion to dismiss where the complaint alleged that "the individual defendants . . . negligently supervis[ed] the renovation, [committing] a tort that caused it damage"]).

Notice of Employee's Propensity

The Court finds that the complaint sufficiently pleads the notice or prior knowledge element for negligent retention and supervision. Although there is no requirement that the claim "be pleaded with specificity" (Kenneth R., 229 AD2d at 162), the Court finds that the allegations as against RW, Disney, and Miramax sufficiently detailed to demonstrate that these defendants knew or should have known of Weinstein's propensity to commit sexual assault, abuse and/or harassment (see complaint at ¶¶ 53-96).

"Nexus"

As stated above, the last requirement is that plaintiff plead "a nexus or connection between the defendant's negligence in hiring and retaining [or supervising] the offending employee and the plaintiff's injuries" (Roe, 198 AD3d at 701).

Defendants argue that plaintiff fails to adequately plead the last prong of the claim, which they contend requires that "the tort was committed on the employer's premises or with the employer's chattels" pursuant Ehrens v Lutheran Church (385 F3d 232, 235 [2d Cir 2004], citing D'Amico v Christie, 71 NY2d 76, 87 [1987]). They argue that plaintiff's complaint fails to state a claim for negligent supervision or retention because there is no allegation that the alleged assault occurred on one of the defendants' premises or with their chattels. Rather, defendants point to the allegations in the complaint demonstrating that the alleged assault occurred in Weinstein's private home; on his own time (i.e., during a break for lunch); and contend that the alleged use of a company phone, car, and driver are insufficient to meet the chattels requirement.

Plaintiff argues that the last element as recited by the court in Ehrens is not required under New York law and should not be followed; instead, plaintiff argues for the application of § 41 of the [*6]Restatement (Third) of Torts: Physical & Emotional Harm (2012). Consequently, plaintiff claims that the allegations of the company car, driver, and phone should be sufficient given the way businesses operate in modern society — often remotely or requiring travel, with most business being conducted digitally. Plaintiff further argues that the "facilitation" requirement in § 41 is met because Weinstein abused the power, authority, and resources he has in the film industry. Such power, authority, and resources were bestowed upon him by his employers, which he would not have otherwise had absent the employment relationship. Accordingly, plaintiff contends that the employers should be responsible for negligent supervision of him and his misuse of that power, authority, and resources to commit sexual assaults and abuses.

As an initial matter, this Court agrees that Ehrens incorrectly sets forth the applicable law in this state concerning the last element required for a negligent hiring, supervision or retention claim.

Although the Second Circuit cited the New York State Court of Appeals decision in D'Amico (71 NY2d 76), a closer examination of the D'Amico decision reveals that there was no formal adaptation of the Restatement (Second) of Torts § 317 (1965). Rather, the high Court's discussion of § 317 of that Restatement appeared to be limited to rejecting the plaintiff's argument in Henry v Vann (the companion appeal with D'Amico), finding that the scope of an employer's duty in that case should not be enlarged based on this particular section of the restatement. Notably, the Henry v Vann appeal did not involve or assert a claim for negligent hiring, retention or supervision, but fell under the much broader question of a defendant's duty to control a tortfeasor. The issue, as framed by the Court, was "whether an employer who fires an inebriated employee and orders him off the work site owes a duty to users of the public highways who may later be injured by him" — and more specifically, whether the employer could be liable "failing to control or supervise [the inebriated employee] after terminating his employment" (D'Amico, 71 NY2d at 87).

The Court of Appeals recited the well-settled principle that "[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others" absent a special relationship (id. at 88). It first held that there was "no question that [the employee] was acting outside the employment relationship at the time of the accident" and consequently did not give rise to a duty under respondeat superior (id. at 88). Plaintiffs then argued, in the alternative, that §§ 317 and 319 of the Restatement (Second) of Torts should serve as a basis for imposing a duty on the employer. With respect to § 317, the Court stated that "[t]hat duty, however, as formulated in the Restatement, is limited to torts committed by employees on the employer's premises or with the employer's chattels, and similarly would be unavailing to plaintiffs because the accident occurred off the employer's premises and did not involve the employer's property" (id. at 88 [emphasis added]).

In rejecting plaintiffs' arguments that were premised upon both § 317 and § 319 of the Restatement (Second) of Torts (the latter of which imposes a duty upon a defendant who "takes charge" of a tortfeasor), the Court focused on control, noting that the employee was no longer in the employer's control once he was discharged; nor did plaintiffs show that any of the employee's conduct was of the type that, under the circumstances, "defendant here might reasonably have controlled" (id. at 89).

Clearly, the Ehrens court incorrectly inserted an element into a negligent hiring, [*7]retention, or supervision claim that had not even been adopted by the courts of this state.[FN7] To be sure, the Appellate Division, Second Department, over twenty (20) years later, explicitly acknowledged that § 317 of the Restatement (Second) of Torts had not been adopted by the courts of this State (Fernandez v Rustic Inn, Inc., 60 AD3d 893, 897 [2d Dept 2009]).

Accordingly, this Court finds that Ehrens incorrectly set forth the elements of a claim for negligent supervision and should not be followed to the extent it requires a plaintiff to strictly plead or prove the "chattels" or "premises" element set forth in Restatement (Second) of Torts§ 317. Consequently, it is this Court's view that any cases citing Ehrens in support of the recitation of the elements of a negligent hiring, supervision, or retention claim, should not be followed. This includes the many federal cases,[FN8] as well as state court cases cited by the defendants.[FN9] Some of these state court cases may have cited Ehrens but the decisions did not turn [*8]or rely on the "chattels" or "premises" requirement and would therefore still be good law in terms of their conclusions (see, e.g., Eng v NYU Hospitals Center, 2018 NY Slip Op 30742[U], *3-4, 2018 WL 1964187 [Sup Ct, NY County April 26, 2018] [Mendez, J.]; Doe v Congregation, 2016 NY Slip Op 32061[U], *4-8; Silverstein v Fairway Westbury LLC, 2016 WL 10732253, Sup Ct, Nassau County, January 20, 2016, index no. 6010662014; Johnson v Classis of Nassau-Suffolk of the Refm. Church of Am., 2008 NY Slip Op 31164[U] [Sup Ct, Suffolk County 2008]).

The Court also rejects the defendants' claim that § 317 has been otherwise adopted in other state court decisions. Upon closer examination, each of the cases cited by the defendants cited § 317 for the general proposition that an employer could be held liable under theories of negligent retention or supervision when an employee acts outside the scope of his/her employment, and noted how such a claim is distinctly different from a negligence claim based on vicarious liability (see Gonzalez, 133 AD3d at 67 [citing § 317 for the proposition that "under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment" in contrast to a vicarious liability claim]; Scollar v City of New York, 160 AD3d 140, 147-48 [1st Dept 2018] [citing § 317 and stating "Under this theory [of negligent supervision and retention], an employer may be liable for the acts of an employee outside the scope of his or her employment"]; Herskovitz v Equinox Holdings, Inc., 2013 NY Slip Op 31193[U] [Sup Ct, New York County 2013] ["In those instances where an employer cannot be held vicariously liable for torts committed by its employee [as beyond the scope of his employment], the employer can be held liable under theories of negligent hiring and negligent retention"], citing, inter alia, § 317; Demartino v 3858, Inc., 34 Misc 3d 1227[A], 2012 NY Slip Op 50268[U] [Sup Ct, Kings County 2012], affd 114 AD3d 634 [2d Dept 2014] [same]).

Plaintiff and amici argue that this Court should reject the antiquated principles of the Restatement (Second) of Torts § 317 and should, instead, adopt § 41 of the Restatement (Third) of Torts: Physical & Emotional Harm (2012), which provides:

"(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.(b) Special relationships giving rise to the duty provided in Subsection (a) include:(1) a parent with dependent children,(2) a custodian with those in its custody,(3) an employer with employees when the employment facilitates the employee's causing harm to third parties, and(4) a mental-health professional with patients."

The comment to § 41 elaborates on the "facilitates" inquiry and also explains how and why it differs from § 317 of the Restatement (Second) of Torts:

"Employment facilitates harm to others when the employment provides the employee access to physical locations, such as the place of employment, or to instrumentalities, such as a concealed weapon that a police officer is required to carry while off duty, or other means by which to cause harm that would otherwise not be available to the employee. * * * "The Restatement Second of Torts § 317 imposed a duty on masters to third parties for the acts of their servants occurring on the master's premises or other premises to which the servant was provided access because of the employment relationship or when the employee was using a chattel of the employer. The idea of the employment facilitating the employee causing harm captures these requirements contained in the Second Restatement and provides a bit of flexibility for courts confronting unusual situations" (id., comment [e], duty of employers).

The comment also provides the following illustration as an example of how the provision would be applied:

"Welch Repair Service knows that its employee Don had several episodes of assault in his previous employment. Don goes to Traci's residence, where he had previously been dispatched by Welch to perform repairs, and misrepresents to Traci that he is there on Welch business to check those repairs. After Traci admits Don to her home, he assaults her. Welch is subject to a duty under this Subsection with regard to Don's assault on Traci" (id.).

The amicus contends that such reiteration set forth in subdivision (b) (3) "captures the elements set forth in the Second Restatement while providing courts the necessary flexibility to balance fairness to employers with a public need to hold them accountable for harm they have caused or failed to prevent" (NYSCEF Doc No 42, amicus brief at 32-33). Plaintiff also argues for the adoption of the same, arguing that "any requirement today that an employee use a physical object or premises of the employer in connection with committing an intentional tort does not comport with modern society and how businesses operate"; noting, too, that "employees more often work remotely and travel for business, blurring the line of where an employer's work is conducted" (NYSCEF Doc No 46, plaintiff's memorandum of law in opposition at 36).

The Disney and MHC defendants argue that "Restatements are available to New York courts only as guidance '[i]n the absence of legal precedent'" but that D'Amico is binding legal precedent that the tort requires the chattels or premises element (NYSCEF Doc No 62, reply mem at 10-11, quoting Thorn v Stephens, 169 Misc 2d 832, 834 n 2 [Sup Ct, Westchester County 1995]).

As noted above, this Court finds that the chattels and/or premises element is not legally required. However, the Court does agree that the legal precedent in this state has been established in that it requires a nexus between the employment relationship and the tort, among other factors. The "facilitates" requirement of § 41 of the Restatement (Third) of Torts does not appear to be different in this regard. Therefore, while the Court does find § 41 useful for providing more flexibility, the courts of this state do not need to formally adopt it to analyze this type of claim.

Rather, the law, as set forth in the decisions of the courts in this state, have always suggested that a "nexus" is required between the tort and the employment relationship, which is [*9]not limited to an employer's premises (i.e., the location of the tort) (e.g., Johansmeyer, 165 AD3d at 634-37; Doe v Congregation, 2016 NY Slip Op 32061[U], *4-8), or chattels (see, e.g., Waterbury, 205 AD3d 154), but is instead a fact-intensive analysis as to how the employer or the employment relationship is involved or connected with the tort; including the ability of the employer to control the employee and its knowledge of the need to exercise such control (see, e.g., Waterbury, 205 AD3d at 161-62; Johansmeyer, 165 AD3d at 634-37; Doe v Congregation, 2016 NY Slip Op 32061[U], *4-8; cf. K.I., 256 AD2d at 189-192).

"The 'nexus' requirement does not mean that the harm suffered must relate to the employer's business activities" (Waterbury, 205 AD3d at 162). Indeed, as the First Department, Appellate Division reasoned, imposing such a requirement may blur the line on what is outside the scope of employment versus what is within the scope of employment and in furtherance of the employer's business (see id.). "Rather, [nexus] means that the employer's negligence must be a proximate cause of the plaintiff's injury" (id. at 162).

Here, it cannot be said that plaintiff failed to adequately plead the nexus requirement between the alleged assault and Weinstein's employment relationship. Plaintiff alleges that the defendants' failure to adequately supervise Weinstein and failure to dismiss or discipline Weinstein was a proximate cause of her injury. More specifically, plaintiff argues that she and Weinstein agreed to meet to discuss her career, including opportunities for film roles, and that she would not have met with Weinstein were it not for his renown influence in the film industry (see complaint at ¶ 1, 29). Plaintiff's allegations further support the connection between the assault and his employment relationship, wherein it is alleged that he deemed himself to have controlled the careers of many successful actresses and could equally destroy those careers (¶¶ 39, 42, 50). Further, were it not for defendants' negligence, plaintiff adequately alleges that the then-infant plaintiff would have been spared from the alleged sexual assault that she experienced (complaint at ¶¶ 6, 52, 96, 107-109).

The location of the assault is not dispositive (see, e.g., Roe, 198 AD3d at 699-702; Johansmeyer, 165 AD3d at 634-37 [FN10] ["although the sexual abuse ultimately occurred in the [*10]infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with [the school employee] during school hours on a regular basis. During these times, [the employee] engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the [employer] knew or should have known of such behavior and [the employee's] propensity for sexual abuse"]; Doe v Congregation, 2016 NY Slip Op 32061[U], *4-5 [finding negligent hiring and retention adequately plead even though the alleged sexual assaults of the infant-plaintiff did not occur on the employer's premises]; see also Waterbury, 205 AD3d at 161-62 ["In our view, if an employer knows that employees are using its property to injure others, especially during working hours, reasonable steps should be taken to prevent foreseeable harm. Any other outcome would give an employer carte blanche to ignore known employee workplace misconduct, however pervasive and persistent, so long as that misconduct was carried out on employees' personal devices"]).

For example, in Roe v Domestic & Foreign Missionary Society of the Protestant Episcopal Church, "the complaint alleged that when the plaintiff was seven years old, she was abducted near her home by a man (hereinafter the alleged attacker) who drove her to a secluded area and brutally sexually assaulted her" (198 AD3d 699). The Second Department, Appellate Division held that the plaintiff failed to allege a nexus to hold the employer liable under a theory of negligent hiring and retention, "since the sexual assault occurred far from the Church's premises, and there is no allegation in the complaint that the plaintiff had any prior contact with the alleged attacker, any prior relationship with any of the defendants, or even any knowledge, at the time of the sexual assault, that the alleged attacker was employed by the defendants" (id. at 701 [emphasis added]). The Court finds the allegations here are distinguishable because Weinstein's employment was the predominant, if not sole, foundation for plaintiff's encounter [*11]with him. Although defendants claim that the event where she met Weinstein was arranged by her modeling agency, it is unclear at this juncture why Weinstein was there in the first place; nor can it be said that the modeling industry is completely unconnected or has no overlap with the film industry.

Other cases are distinguishable where the facts demonstrate that the location of the tort, being offsite from an employer's premises, was not a significant factor to demonstrate a nexus, particularly where the employer had no duty, opportunity, or ability to control the employee at that distant location (see, e.g., Milosevic v O'Donnell, 89 AD3d 628, 628-29 [1st Dept 2011] [aside from the lack of the employer's notice of "the CFO's violent propensities when intoxicated or of the possibility of an assault," there were "no allegations or indication that [the employer] controlled the premises such that it could be held responsible for injuries caused by the intoxicated CFO"]; Barley v Burger Keeper LLC, 2017 WL 11094980, Sup Ct, Westchester County, January 27, 2017, index no. 60379/2016 ["the complaint fails to state a cause of action for negligent supervision since it alleges the assault occurred, not at the [employer's] restaurant, but at a location "miles away" from it. In addition, the complaint fails to allege [the employer] had control over [the employee] at that distant location or that [the employer] had a duty to prevent [the employee] from leaving the restaurant"]).

This case is also distinguishable from cases where the tort was not only separated from the employer and employment relationship by "time" and "place," but also because of "intervening independent acts" of the tortfeasor (see, e.g., "John Doe 1" v Board of Educ. of Greenport Union Free Sch. Dist., 100 AD3d 703, 704 [2d Dept 2012] [where "the infant plaintiff repeatedly and unequivocally testified that he first met [the tortfeasor employee] due to his friendship with her son, with whom he shared some classes, and that both the development of his relationship with [the employee], as well as all of their sexual trysts, occurred off of school grounds and outside of school hours"]; Anonymous, 290 AD2d at 464-65 [where the infant-plaintiff's parents invited the employee-teacher to their home for a New Year's Eve party, and the employee was invited to stay over the house because he was allegedly intoxicated, and molested the infant plaintiffs]; K.I., 256 AD2d at 189-192 ["though . . . plaintiff first met [the tortfeasor] through the school, plaintiff's personal encounters with his abuser were not set up through school channels, and occurred in [the tortfeasor's] apartment after his volunteer work at the school had ceased . . . . Accordingly, defendant cannot be held liable because any nexus between [the tortfeasor's] volunteer activities at the school and his assault upon plaintiff was severed by time, distance and [his] intervening independent actions"]; Lemp, 226 AD2d at 907-08 ["The incident wherein plaintiff was injured occurred after [the employee] had left the place of his employment, traveled approximately 20 miles over the course of 30 minutes and confronted plaintiff; [the employee] was off duty and no longer under [the employer's] supervision and control"]; MS v Arlington Cent. Sch. Dist., 128 AD3d 918, 918-20 [2d Dept 2015] ["Although [the infant plaintiff] first met [the employee] through the marching band, [plaintiff's] injuries were not proximately caused by any negligent retention or supervision by the appellants"]).

Here it cannot be said that the "intervening independent acts" of Weinstein render his liability as the sole and only proximate cause of plaintiff's injury. As the First Department, Appellate Division aptly noted in Gonzalez v City of New York: "'An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent' and the occurrence of that act did not approach that degree of attenuation condemned in Palsgraf" (133 [*12]AD3d at 70-71, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316 [1980] and citing Palsgraf v Long Is. R.R. Co., 248 NY 339, 342-344 [1928]; see also Waterbury, 205 AD3d at 163 ["The possibility that harm might have occurred if a defendant had not breached its duty does not negate liability for the harm that occurred because the defendant did breach its duty"]).

Affirmative Negligence Against Defendant Robert Weinstein

Plaintiff alleges that RW's affirmative acts in "covering up for Harvey Weinstein's sexual misconduct with women with whom he worked created a continuing risk of Harvey Weinstein engaging in similar sexual misconduct, but Robert Weinstein nonetheless allowed Harvey Weinstein to have the authority and resources to engage in sexual misconduct with female employees and actresses and knew Harvey Weinstein continued to engage in sexual misconduct and/or that Harvey Weinstein had the temptation or opportunity to engage in sexual misconduct" (complaint at ¶ 106).

In support of this claim, plaintiff points to RW's affirmative assistance in paying victims' settlements and claims that RW's "concealment" of Weinstein's "persistent predatory behavior" affirmatively created a dangerous situation for which he should be liable to plaintiff (see NYSCEF Doc No. 46, plaintiff's mem in opp at 43 and 46).

The Court already reasoned above that RW may be liable to plaintiff as a director or officer of the corporate entity for active participation in the corporate tort of negligent supervision and/or retention. However, the Court finds that there cannot otherwise be a cognizable negligence claim for RW's alleged acts as he had no direct duty to the plaintiff (see David v Weinstein Co. LLC, 431 F Supp 3d 290, 306-08 [SDNY 2019]). "[W]hile the existence of a duty involves scrutiny of the wrongfulness of a defendant's action or inaction, it correspondingly necessitates an examination of an injured person's reasonable expectation of the care owed and the basis for the expectation and the legal imposition of a duty" (Palka v Servicemaster Mgt. Services Corp., 83 NY2d 579, 584-85 [1994]; see Waters v New York City Hous. Auth., 69 NY2d 225, 228-229 [1987] ["the concept of a duty of care . . . has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed"]; 532 Madison Ave. Gourmet Foods, 96 NY2d at 289 [the existence of a "special relationship" may "define[] the class of potential plaintiffs to whom the duty is owed"]).

The complaint fails to contain any allegation of a direct relationship between RW and the plaintiff. In this vein, plaintiff is no more different than a member of the general public and RW cannot be held liable to her "without a duty running directly to the injured person" (Hamilton, 96 NY2d at 232, quoting Lauer v City of New York, 95 NY2d 95, 100 [2000] [internal quotations and alteration omitted]).

CONCLUSION

Accordingly, it is hereby ORDERED that the motion to dismiss by defendants THE WALT DISNEY COMPANY, DISNEY ENTERPRISES, INC., and MIRAMAX HOLDING CORP. (motion sequence no. 4) is granted to the extent that the complaint is dismissed insofar as asserted against defendant MIRAMAX HOLDING CORP. with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further

ORDERED that the reminder of motion sequence no. 4 is otherwise denied; and it is further

ORDERED that the motion to dismiss by defendant MIRAMAX FILM NY LLC f/k/a [*13]MIRAMAX FILM CORP. (motion sequence no. 1) is denied; and it is further

ORDERED that defendants THE WALT DISNEY COMPANY, DISNEY ENTERPRISES, INC., and MIRAMAX FILM NY LLC f/k/a MIRAMAX FILM CORP. shall file and serve an answer to the complaint within thirty (30) days after service of a copy of this order with notice of entry; and it is further

ORDERED that the motion to dismiss by defendant ROBERT WEINSTEIN (motion sequence no. 2) is granted solely to the extent of dismissing a general negligence claim against him and denied as to the negligent supervision and/or retention claim; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and it is further

ORDERED that the caption be amended to reflect the dismissal of defendant MIRAMAX HOLDING CORP. and that all future papers filed with the court bear the amended caption; and it is further

ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further

ORDERED that service of this order upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (see section J);[FN11] and it is further

ORDERED that the parties shall proceed with discovery pursuant to CMO No. 2, Section IX (B) (1) and submit a first compliance conference order within 60 days from entry of this order. This constitutes the decision and order of the Court.

2/7/2023 Footnotes

Footnote 1: Defendant Harvey Weinstein's motion to dismiss the complaint based on New York State Constitutional grounds (motion sequence no. 3) is decided by separate decision and order.

Footnote 2: See Sokola v Weinstein, 68 Bankr Ct Dec 246, 2020 WL 3605578, *1-7 (SDNY July 2, 2020) for background of this case's previous removal to federal court and related Weinstein cases.

Footnote 3: For purposes of this decision, "Miramax" would also include Miramax Film Corp., as alleged in the complaint (see complaint at ¶ 14) as a predecessor for Miramax Film NY, LLC, but does not include, Miramax Holding Corp., which appears to be separate as set forth infra.

Footnote 4: To state a negligence claim, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]).

Footnote 5: This element is not disputed by defendant Miramax.

Footnote 6: It is clear that plaintiff is not suggesting that RW "directed, controlled, or ratified" the decision to sexually assault plaintiff.

Footnote 7: Interestingly, the Ehrens court did not even need to do it. The District Court dismissed the negligent supervision claim based on the lack of knowledge of the employee's propensity to commit the tortious act (Ehrens, 385 F3d at 235). The Second Circuit affirmed the dismissal of that claim on those grounds, but then took an additional step under the principle that it may "'affirm a district court's grant of summary judgment on any ground upon which the district court could have rested its decision'" (id. at 235, quoting Santos v. Murdock, 243 F3d 681, 683 [2d Cir 2001]), and went on to hold that there was "yet another ground supporting the district court's dismissal of these claims: Ehrens acknowledges that the incidents of sexual assault about which he complains did not occur on church property but instead were perpetrated at his home and at [the tortfeasors's] home" (id. at 235-236).

Footnote 8: For example, defendants cite to Doe v Alsaud (12 F Supp 3d 674 [SDNY 2014]), where the U.S. Southern District of New York rejected the same argument set forth by the plaintiff here, on the grounds that the "the Court of Appeals explicitly noted that the 'duty on the part of an employer to control the conduct of its employee even outside the scope of employment .... as formulated in the Restatement, is limited to torts committed by employees on the employer's premises or with the employer's chattels, and similarly would be unavailing to plaintiffs because the accident occurred off the employer's premises and did not involve the employer's property'" (id. at 683, quoting D'Amico, 71 NY2d at 88 [emphasis added]). Attention is drawn to the word "noted" because it is true the Court of Appeals simply "noted," i.e., mentioned, the Restatement in rejecting plaintiffs' arguments as set forth above. One would think that in a formal adaptation of § 317 of the Restatement (Second) of Torts, when there had been none before, that the Court of Appeals would make it explicit, or otherwise not so casual without any other cases to support the adaptation with respect to a requirement for premises or chattels, specifically.

Footnote 9: One such case cited by defendants, Scipio v Jimmy Jazz, Inc. (2018 WL 1363088 *1 [NY Sup Ct, Bronx County 2018] [Gonzalez, J.] No. 23049/2013E. January 23, 2018) contains the language of Ehrens but quoted Ramos v Jake Realty Co. (21 AD3d 744, 746 [1st Dept 2005]), which contains no such language and focused exclusively on vicarious liability. Another case, Moncho v Miller (2020 WL 3124242, 2020 NY Slip Op 31821[U], 25-26, Index no No. 155382/2017 [Sup Ct NY County, June 12, 2020] [Perry, J.]) should also not be followed at all on this type of claim, because the claim was dismissed for a different reason upon reargument in an order dated November 20, 2020, which was affirmed on appeal for what appeared to be yet another different reason (Moncho v Miller, 200 AD3d 533 [1st Dept 2021]).

Footnote 10: Due care should be given to cases involving students and defendant-schools where legally separate and distinct claims can occasionally be muddled. For example, this Court finds that Doe v New York City Dept. of Educ. (126 AD3d 612 [1st Dept 2015]) is not relevant. Defendant RW relies on the Appellate Division holding where it stated: "The court correctly dismissed the negligent supervision claim, because the misconduct occurred after school hours and off school premises (see Stephenson v City of New York, 19 NY3d 1031, 1034 [2012])" (Doe, 126 AD3d 612). However, the Stephenson case discussed a school's duty to adequately supervise its students — it is a duty of care that is owed directly to the student by the school under the well-known in loco parentis doctrine (see generally Mirand v City of New York, 84 NY2d 44, 49-50 [1994]). Thus, this Court finds that Doe's reasoning with the citation to Stephenson should not be construed to be applicable to the distinctly different claim that is sub judice: negligent supervision or retention. The only part of Doe that is applicable to the negligent hiring and retention claim was based exclusively on the prior notice element, and not the nexus element.

Similarly, Tanaysha T. v City of New York (130 AD3d 916, 916-17 [2d Dept 2015]) cannot aid this Court's analysis because of a perhaps inaccurately cited proposition. There, "the infant plaintiff, who was then 14 years old, allegedly was sexually assaulted by her former eighth-grade math teacher, the defendant Horace Bedeau" (Tanaysha T., 130 AD3d at 916). "At the time of the incident, Bedeau was tutoring the infant plaintiff at his home" (id.). The Court held that summary judgment was properly granted to defendants because "[a]ll of the improper acts allegedly committed by Bedeau took place off school premises and outside of school hours, when the NYCDOE did not have custody or control of the infant plaintiff and had no duty to monitor or supervise Bedeau's conduct" (id. at 917). In support, the Appellate Division cited Begley v City of New York (111 AD3d 5 [2d Dept 2013]) and Banks v New York City Dept. of Educ. (70 AD3d 988 [2d Dept 2010]) both of which solely address the duty to supervise the infant-student(s). It also cited "John Doe 1" v Board of Educ. of Greenport Union Free Sch. Dist., 100 AD3d 703, 705 [2d Dept 2012]), where that court stated that the evidence submitted "established that all of the improper acts by [defendant employee] took place off school premises and/or outside of school hours, when the school defendants had no custody or control of the infant plaintiff and no duty to monitor or supervise the conduct of [the employee]" (100 AD3d at 705). In support of that finding, the "John Doe 1" court cited Banks, supra, and Pratt v Robinson, 39 NY2d 554, 560 [1976]), which, like Banks, exclusively discusses a school's duty owed to the infant student when in the school's custody. Accordingly, Tanaysha T. (130 AD3d 916) cannot aid this Court's analysis when the cases it cited in support concerned a different legal duty (compare Restatement (Third) of Torts: Emot. & Phys. Harm § 40 and § 41).

Footnote 11: The Protocol is accessible at the "E-Filing" page on the court's website: www.nycourts.gov/supctmanh.