Opinion
Index No. xxxx3/2018E
06-08-2022
G.A., Plaintiff, v. B.A. p/k/a C., K.K.C. p/k/a O., Quality Control Management, LLC, Mark Hotel, LLC, and John Does 1-3, Defendants.
Counsel for plaintiff: Daniel Szalkiewicz, Esq. Daniel Szalkiewicz & Associates, P.C. Counsel for defendant KKC p/k/a O: Veneble LLP Jessie F. Beeber, Esq. Counsel for defendant BA, p/k/a C Lori F. Graybow, Esq. Kiernan Trebach LLP
Unpublished Opinion
Counsel for plaintiff: Daniel Szalkiewicz, Esq. Daniel Szalkiewicz & Associates, P.C.
Counsel for defendant KKC p/k/a O: Veneble LLP Jessie F. Beeber, Esq.
Counsel for defendant BA, p/k/a C Lori F. Graybow, Esq. Kiernan Trebach LLP
MARY ANN BRIGANTTI, J.S.C.
The following papers numbered _119_ to _158__were read on these motions (Seq. No. 9) for DISMISS_ noticed on _February 2, 2021_ and duly submitted as Nos. on the Motion Calendar of March 2, 2022_
Sequence No. NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed 119-126
Cross Motion - Exhibits and Affidavits Annexed 134-148
Answering Affidavit and Exhibits, Memorandum of Law 151-157
Reply Affidavit 158
This motion is decided in accordance with the accompanying memorandum decision.
Upon the foregoing papers, the plaintiff G.A. (hereinafter, "Plaintiff") moved for an order compelling the defendant B.A. p/k/a C. (hereinafter, "C.") to provide certain discovery and/or to impose discovery sanctions on C.
C. opposed the motion and cross-moved to dismiss Plaintiff's complaint in its entirety pursuant to CPLR 3211(a)(7), or in the alternative, for a protective order, a confidentiality order, and certain discovery sanctions against Plaintiff. Plaintiff opposed the cross-motion.
By order dated February 24, 2022, Justice Julia Rodriguez, J.S.C., denied Plaintiff's motion with leave to renew after a decision is rendered on C.'s cross-motion to dismiss. Justice Rodriguez referred that branch of C.'s cross-motion to the undersigned.
Background
This matter arises out of an alleged incident that took place on May 8, 2018, outside of the premises of the Mark Hotel located at 21 East 77th Street in New York, New York. On May 7, 2018, C. and co-defendant K.K.C., p/k/a O. ("O.") were invited guests to attend the 2018 "Met Gala," an event that raises money for the Metropolitan Museum of Art's Costume Institute (Complaint at Par. 28). Plaintiff alleges that after the gala, C. and O. were accompanied by defendants identified as "Unknown Assailants"-who are described as "three individuals who were employees, agents, security personnel, friends and/or contractors" of C., O., and defendant Quality Control Management, LLC ("QCM") (id. at Par. 18). C., O., and the Unknown Assailants attended an after-party that took place at the Mark Hotel (id. at 29).
At or about 2:15AM the next morning, C., O., and the Unknown Assailants, along with others, left the after-party and encountered Plaintiff as they exited the hotel (id. at 31). Plaintiff, who was not invited to the event, was waiting outside ropes and barricades that were placed outside the Mark Hotel doors (id. at 32). Plaintiff was waiting along with a small crowd of other individuals hoping to meet and receive photographs from C. and other celebrities attending the after-party (id.).
Plaintiff alleges that C. was "was not interested in greeting fans" and "shouted at Plaintiff '[f]__k outta here n___a, I will slap the s__t outta you" (id. at 33). Plaintiff verbally expressed his disappointment with being ignored, but C., O., and the Unknown Assailants walked past him (id.). Plaintiff claims that before entering her vehicle, "C. and/or O. signaled to the Unknown Assailants that they wanted Plaintiff to be physically attacked" (id. at 34). As C. was entering her vehicle, O. allegedly said to Plaintiff "shut up, bro, before a n___a beat you out here" (id. at 35). Plaintiff responded by saying "Aw man, for an autograph? Damn, that's serious" (id. at 36).
Within seconds, "John Doe 1" and another unknown assailant, "John Doe 2" began to attack Plaintiff (id. at 37-38). Plaintiff was punched and kicked repeatedly by three Unknown Assailants (id. at 38). The assailants then left the scene in black SUVs and Plaintiff was taken to the hospital (id. at 40-42).
As relevant to this motion, Plaintiff's complaint asserts causes of action against C. for assault (third cause of action), vicarious liability assault and battery (fifth cause of action), intentional infliction of emotional distress (sixth cause of action), reckless infliction of emotional distress (seventh cause of action), and punitive damages (eleventh cause of action).
C. now seeks dismissal of the above on the grounds that Plaintiff's complaint fails to state a claim, pursuant to CPLR 3211(a)(7).
Standard of Review
On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205 [1st Dept. 1997][on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (CPLR 3026). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v. Martine z, 84 N.Y.2d 83, 87-88 [1994]). Importantly, "in the context of a motion to dismiss, the Court does not assess the relative merits of the complaint's allegations against defendant's contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims" (M.H.B. v. E.C.F.S., 177 A.D.3d 479, 480 [1st Dept. 2019]). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 A.D.2d 98 [1st Dept. 1992]). Plaintiff need only sufficiently apprise the defendant of the "transactions, occurrences, or series of transactions" that form the basis of the complaint (High Definition MRI, P.C. v. Travelers Companies, Inc., 137 A.D.3d 602, 603 [1st Dept. 2016], citing CPLR 3013).
Factual allegations normally presumed to be true on a motion pursuant to CPLR 3211 (a)(7) may properly be negated by affidavits and documentary evidence (CPLR 3211 [a][1], Wilhemlina Models, Inc. v. Fleisher, 19 A.D.3d 267 [1st Dept. 2005]). When documentary evidence is submitted by a defendant, "the standard morphs from whether the plaintiff has stated a cause of action to whether it has one" (John R. Higgitt, CPLR 3211 [a][7]: Demurrer or Merits - Testing Device?, 73 Albany Law Review 99, 110 [2009]). Dismissal is appropriate under these circumstances only where the documentary evidence flatly rejects a plaintiffs well-pleaded and cognizable claim, or "conclusively establishes a defense to the asserted claims as a matter of law" (Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 136 [1st Dept. 2014]). In order for evidence submitted under a CPLR 3211 (a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996-997 [2nd Dept. 2010][internal quotation marks omitted]).
Applicable Law and Analysis
C. first argues that Plaintiff's complaint fails to state a cause of action against her for assault. To adequately plead a cause of action to recover damages for civil assault, a plaintiff must allege physical conduct that placed plaintiff "in imminent apprehension of harmful contact" (Holtz v. Wildenstein & Co., 261 A.D.2d 336 [1st Dept. 1999]; see also Okoli v. Paul Hastings LLP, 117 A.D.3d 539, 540 [1st Dept. 2014]). The claim must involve a "grievous affront or threat to the person of the plaintiff" and "words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause of action alleging assault" (Gould v. Rempel, 99 A.D.3d 759, 760 [2d Dept. 2012], citing inter alia Carroll v. New York Prop. Ins. Underwriting Assn., 88 A.D.2d 527, 527 [1st Dept. 1982]).
In this case, Plaintiff failed to adequately allege a cause of action against C. for civil assault. Plaintiff only claims that C. "shouted" at him "[f]__k outta here n____a, I will slap the s__t outta you," and walked past him. As she was getting into her vehicle, C. allegedly signaled to the Unknown Assailants to physically attack Plaintiff. C.'s alleged verbal threats do not constitute an assault, as there is no claim that she physically encroached upon Plaintiff at any point (cf. Berg v. Chelsea Hotel Owner, LLC, 203 A.D.3d 484, 486 [1st Dept. 2022]). C.'s alleged signaling to the assailants is not the type of "menacing gesture or act" that would constitute an assault on her part - such conduct did not place Plaintiff is imminent apprehension of harmful contact from C. herself. Accordingly, this cause of action is dismissed.
C. next argues that Plaintiff has failed to state a cause of action against her for vicarious liability for assault and battery (Plaintiff's fifth cause of action). Movant alleges that, contrary to the allegations in the complaint, the Unknown Assailants were not her employees. In support of this contention, C. submits a personal affidavit alleging inter alia that she "did not employ, control, supervise, direct or provide instructions" to the Unknown Assailants "to act in any manner" and she had no involvement in the alleged incident. C. further alleges that she did not have any prior notice of the violent tendencies of these individuals.
This branch of C.'s motion is denied. On a motion to dismiss pursuant to CPLR 3211(a)(7), a movant may submit documentary evidence, however dismissal would only be appropriate where such evidence "conclusively establishes that plaintiff has no cause of action" (Basis Yield Alpha Fund [Master], 115 A.D.3d at 134, citing Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 636 [1976]). It is settled, however, that "affidavits, 'which do no more tha[n] assert the inaccuracy of plaintiffs' allegations" cannot be considered as they do not conclusively establish a defense as a matter of law (Art and Fashion Group Corp. v. Cyclops Production, Inc., 120 A.D.3d 436, 438 [1st Dept. 2014], quoting Tsimerman v. Janoff, 40 A.D.3d 242, 242 [1st Dept. 2007]; see also Bou v. Llamoza, 173 A.D.3d 575 [1st Dept. 2019]). Accordingly, the affidavit denying the accuracy of Plaintiff's allegations does not establish that Plaintiff has no cause of action. Furthermore, as stated above, at this procedural posture "the Court does not assess the relative merits of the complaint's allegations against defendant's contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims" (M.H.B., 177 A.D.3d at 480). Plaintiff here has adequately alleged facts that, if true, would subject C. to vicarious liability for the intentional conduct of her employees (see, e.g., Faunteroy v. EMM Group Holdings, LLC, 133 A.D.3d 452, 452-53 [1st Dept. 2015]). C.'s motion to dismiss Plaintiff's fifth cause of action is therefore denied.
C. next contends that the complaint fails to state a cause of action against her for intentional infliction of emotional distress (Plaintiff's sixth cause of action). As stated by the Court of Appeals in Murphy v. American Home Prods. Corp.:
To survive a motion to dismiss, plaintiff's allegations must satisfy the rule set out in Restatement of Torts, Second, which we adopted in Fischer v Maloney (43 N.Y.2d 553, 557), that: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress" (§ 46, subd [1]). Comment d to that section notes that: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (58 N.Y.2d 293, 303 [1983]).
The First Department directs that an adequately stated claim for intentional infliction of emotional distress must "allege '(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress'" (Drimer v. Zionist Organization of America, 194 A.D.3d 641, 642 [1st Dept. 2021], quoting Scollar v. City of New York, 160 A.D.3d 140, 145-46 [1st Dept. 2018]).
In this case, C. argues that she is entitled to dismissal of this cause of action because the complaint does not allege sufficiently extreme or outrageous conduct. She contends that the complaint only alleges that she "vaguely threatened to slap [Plaintiff] before walking away." C., however, ignores the other allegation in the complaint - specifically that she also directed/signaled to Unknown Assailants to physically attack Plaintiff. The individuals allegedly carried out this directed attack and caused injuries that sent Plaintiff to the hospital, and according to the complaint, caused mental anguish/anxiety/shock and emotional distress. Assuming that all of Plaintiff's contentions are true, "the acts complained of could be found by a trier of fact to amount to extreme and outrageous conduct which cannot be tolerated in a civilized community and that they, therefore, adequately stated a cause of action for intentional infliction of emotional distress" (Elson v. Consolidated Edison Co. of New York, Inc., 226 A.D.2d 288, 289 [1st Dept. 1996]; see also Hall v. City of Buffalo, 151 A.D.3d 1942, 1944 [4th Dept. 2017]; Bunker v. Testa, 234 A.D.2d 1004 [4th Dept. 1996]; Gibson v. Campbell, 16 Misc.3d 1123 [A] Sup. Ct., NY Cty. 2007][Stallman, J.]). C. advances no other arguments in support of dismissal of this cause of action; therefore, this branch of the motion is denied.
Plaintiff's seventh cause of action against alleging "Reckless Infliction of Emotional Distress," however, must be dismissed." [R]eckless conduct is encompassed within the tort of intentional infliction of emotional distress and does not constitute a separate and distinct cause of action" (James v. Flynn, 132 A.D.3d 1214, 1216 [3rd Dept. 2015], citing, inter alia, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 [1985]; see also Doe v. Hall, 64 Misc.3d 1211[A][Sup. Ct., NY Cty., 2019][Reed, J.]).
Plaintiff's eleventh cause of action alleging punitive damages is also dismissed because "there can be no separate cause of action for punitive damages" (Feiner & Lavy, P.C. v. Zohar, 195 A.D.3d 411 [1st Dept. 2021][cleaned up]). However, contrary to C.'s contentions, punitive damages may be appropriate if the allegations contained in Plaintiff's surviving causes of action against her are established at trial (see, e.g., Carlson v. Chelsea Hotel Owner, LLC, 202 A.D.3d 589, 590 [1st Dept. 2022]; Berg v. Chelsea Hotel Owner, LLC, 203 A.D.3d 484, 486 [1st Dept. 2022]; Barnes v. Hodge, 118 A.D.3d 633 [1st Dept. 2014][vicarious liability for punitive damages can be established where the defendant authorized or ratified intentional or deliberate wrongdoing, evincing a fraudulent or evil motive, or is in conscious disregard of the rights of another that is deemed willful and wanton]). The Court notes that Plaintiff's ad damnum clause asserts recovery for punitive damages, which remains undisturbed by this decision.
Conclusion
Accordingly, it is hereby
ORDERED, that C.'s cross-motion to dismiss pursuant to CPLR 3211(a)(7) is granted only to the extent of dismissing Plaintiff's third, seventh, and eleventh causes of action, and it is further, ORDERED, that the cross-motion to dismiss pursuant to CPLR 3211(a)(7) is otherwise denied.