Opinion
Index No. 150605/2020
07-27-2023
J.I., Plaintiff, v. Hudson 410 Inc., Alpha Xi Delta Fraternity, Nicole Nelson, Mackenzie Goode, John Doe #1, Defendants.
Plaintiff is represented by Marina Tricorico Esq. of Scamardella, Gervasi & Kasegrande P.C.
Unpublished Opinion
Plaintiff is represented by
Marina Tricorico Esq. of
Scamardella, Gervasi & Kasegrande P.C.
Hon. Catherine M. DiDomenico, Acting Justice Supreme Court
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Numbers indicated above.
Document Numbered
Summons & Amended Complaint 1
Notice of Motion for Default Judgment (Seq. No. 001) 2
Post Inquest Summations 3
Transcript of Inquest Proceedings 4
Evidence offered at Inquest (Pl. 1-4) 5
Procedural History
The present action was commenced with the filing of a Summons and Verified Complaint on May 25, 2020. An Amended Complaint was filed on May 26, 2020. Pursuant to her Amended Complaint, Plaintiff asserts causes of action against all Defendants for assault, battery, common law negligence, and the intentional and/or negligent infliction of emotional distress. Plaintiff also asserts a separate cause of action for negligent hiring and supervision against Defendants Hudson 410 Inc. ("Hudson") and Alpha Xi Delta Fraternity ("AZD"). Plaintiff seeks an award of damages to be determined by this Court for physical injuries and mental anguish sustained during hazing rituals committed against her while she was pledging for AZD.
As AZD is a Woman's Fraternity, the trial record also identifies the organization as a "sorority."
On or about June 11, 2020, Defendant Mackenzie Good (sued as "Goode") interposed a Verified Answer to Plaintiff's Complaint. On or about July 17, 2020, Defendant Alpha Xi Delta Fraternity interposed their Verified Answer to the Complaint. In or around January 2022 these two appearing Defendants settled with Plaintiff for undisclosed sums and the claims against them were discontinued.
The remaining defendants Hudson 410 Inc. and Nicole Nelson ("Nelson') failed to appear in this action. Defendant Hudson is a corporate "holding company" that owned the home located at 410 Hudson Avenue, Albany, New York, where the AZD Fraternity was housed. Defendant Nelson was the senior sorority member that Plaintiff alleges organized and directed the alleged hazing. On or about May 24, 2021, Plaintiff filed a Notice of Motion (Seq. No. 001) seeking an Order finding Hudson and Nelson to be in default and granting leave to enter a default judgment against them. Plaintiff's motion was granted on the record of October 28, 2021 and the matter was scheduled for an evidentiary inquest to determine the proper award of damages, if any, against defendants Nelson and Hudson.
An Order encompassing the Court's default ruling on the Record was submitted to Court on April 3, 2023, when it was discovered that no contemporaneous order had been filed. The Order was signed nunc pro tunc to October 28, 2021.
The Inquest was held on September 20, 2022. The defaulting defendants again failed to appear notwithstanding being served with additional notice of the inquest date. Plaintiff testified in support of her claims and submitted documents into evidence (Pl. 1-4). A comprehensive investigative report prepared by the Director of Equity and Compliance at the University of Albany was made part of the inquest record (Pl. 3). Photographs of the physical injuries sustained by Plaintiff during the hazing incidents were also admitted into evidence (Pl. 2a & 2b). Initial and supplemental written Summations were received from Plaintiff's counsel on March 4, 2022, and April 3, 2023.
Findings of Fact
The following Findings of Fact are made by this Court after considering the credible testimony offered by Plaintiff and after having the benefit of observing her testify:
Plaintiff J.I. (then 19 years old) was a freshman student at the State University at Albany when she first attended a recruitment fair to learn about "Greek Life" on campus. Alpha XI Delta is a Women's Fraternity, or Sorority, that was on probation at the time of the recruitment fair. Plaintiff was aware that the sorority was on probation but did not know why. After weighing her options Plaintiff, along with eight other female freshman students, were accepted as pledges for AZD. Plaintiff believed that joining a sorority would be a good opportunity to make friends, have a good time, and improve her resume.
In or around February 2019, Plaintiff began the "pledging" process, a time in which prospective members need to "prove" they are worthy of acceptance into the sorority. Defendant Nelson was appointed "pledge mom" and oversaw what would take place during the pledging process. From the very beginning of the process Plaintiff felt as if she was under the control of the sorority and could not refuse to do anything demanded of her. Each of the 40 members of the sorority were permitted to decide which pledge they wanted to use on any given day. Required tasks began "low key" such as delivering food and running errands, but also included degrading activities such as scrubbing toilets. Pledges were also ordered to do unethical activities such as forging homework or attending classes for the sorority members. Some of the tasks happened off campus, but many occurred in the sorority house rented from Defendant Hudson.
In addition to being forced to do the bidding of sorority members, Plaintiff credibly testified that she was subjected to several harmful and degrading incidences of "hazing" during the ten-week pledging period. Plaintiff credibly testified that she (along with her fellow pledges) was ordered to report to the sorority house at 410 Hudson every night, regardless of anything else going on in their personal or academic life. Upon arrival, the house would become a chamber of horrors for her and her fellow pledges. On most days the basement of the house served as the situs for acts of torture. On other days, when the hazing rituals were so depraved that Defendant Nelson directed that they be done away from the House, 410 Hudson served as the meeting and staging point for the pledges and sorority members.
The first incident detailed by Plaintiff happened within days of her decision to pledge. When she arrived at the sorority house, Plaintiff was directed to enter the basement and told that her first day wouldn't be "too rough." Plaintiff was then blindfolded and subjected to sorority members screaming profanities and other degrading names at her, and the other pledges. Among other insults, the sorority girls screamed directly into her face and ears that she was "worthless" and 'ugly," and that her "life doesn't matter." She was also told that she was "not good enough" and "would never amount to anything." Defendant Nelson, a senior member of the sorority, enthusiastically participated in, and led, these degrading screaming tirades. Plaintiff testified that this verbal abuse persisted for "almost ten weeks, for three to four days a week." Plaintiff testified that the degrading comments made her feel terrible about herself.
Plaintiff also testified to being "touched" by various members of the sorority as part of this initial hazing. She was repeatedly "slapped, hit, and pinched" by the sorority members on her breasts, legs, and face. Plaintiff described the slaps as "really hard." These slaps and pinches left bruises, pictures of which were entered into evidence. Plaintiff was also assaulted while blindfolded and struck with objects ranging from eggs to pieces of furniture. At other times, Plaintiff was forced to do "planking exercises" on grains of rice and shattered glass. While enduring this torture, the sorority girls would step on their backs, forcing them to press their arms into the rice and glass resulting in cuts and abrasions. A pledge's failure to hold the plank for the mandated time elicited additional punishments.
Another form of torture endured by Plaintiff was forced "wall sitting." This activity, which involves prolonged periods of leaning on a wall in a forced sitting position, was notably painful due to the basement walls being "sharp concrete which would scratch your back when you sit there." To exacerbate the pain sorority members would sit on Plaintiff's legs while in the sitting position causing her to press harder against the jagged wall. In another incident, Plaintiff was forced to submerge herself in ice water while wearing a tank top and shorts. Other times, she would have to stand at attention while ice water was thrown on her body.
Notably, stress positions such as forced wall sitting, and the use of ice water on captured soldiers has been found to constitute torture by the Geneva convention and the U.S. Government. See United States v. Zubaydah, 142 S.Ct. 959 (2022); see also Justin R. v. Taqiyya Niang, 2010 U.S.Dist. Lexis 143991 (S.D.NY 2010).
The hazing rituals endured by Plaintiff and her fellow pledges also included forced and excessive drinking of alcohol at a time when she was underage. Plaintiff credibly testified that on several occasions she was forced to drink vile "alcoholic concoctions" without being informed of their contents. Plaintiff later discovered that these concoctions included dangerous ingredients like raw meat. In one such incident, Plaintiff's sorority invited an all-male fraternity to the house. Plaintiff was forced to drink between ten and twenty beers, although she lost track of the exact number consumed. This dangerous activity was made worse by the sorority members. If Plaintiff appeared as if she was going to vomit, sorority members would hold her mouth closed and tilt her head back so that she would be forced to swallow her vomit. As a result of these drinking episodes, Plaintiff was constantly sick, her body broke out into cold sweats, and that she vomited often.
Plaintiff and her fellow pledges were also forced to eat things that were unappetizing at best, such as an entire raw onion. On another night, the sorority members poured hot sauce all over her face and in her mouth. Plaintiff was not permitted to wash it off, and as it remained there Plaintiff suffered significant pain and a temporary loss of vision. The sorority members would continue to berate the pledges while they were suffering. Similar events occurred several times a week for the ten-week pledge period in the basement of the sorority house.
The hazing incidents cumulated in a scavenger hunt organized by Defendant Nelson and the sorority members in conjunction with the members of an all-male fraternity. Plaintiff credibly testified that the scavenger hunt began with forced drinking to prepare the pledges for their list of tasks. The "list of things to do" given to the pledges directed them to engage in sexual acts, take drugs, and drink even more alcohol. Defendant Nelson personally handed Plaintiff her copy of the list. The pledges were ordered to complete the tasks and to send video proof of the same on a group chat app called "GROUPME."
Plaintiff testified that the worst aspects of the scavenger hunt were the sexual activities included on her "to do" list. One such sexual incident involved Plaintiff having a male fraternity member lick whipped cream off an intimate part of her body. Plaintiff testified that this incident happened in the bathroom of an off-campus deli because Defendant Nelson didn't want that type of activity in the sorority house. As required, the event was videotaped and published onto GROUPME. In the video Plaintiff's face and intimate parts of her body were visible which made her feel ashamed and horrible. The video was shared to at least thirty-five people in the group chat.
As a result of the hazing incidents detailed above, Plaintiff felt embarrassed, traumatized, afraid, degraded, humiliated and weak. She experienced strong feelings of self- hate for allowing it to take place, but she desperately wanted to have friends and fit in. Plaintiff testified that she was told by sorority members that she would be kicked out of school if she left during pledge week or informed school authorities of what she was doing. Once the process started, Plaintiff felt very strong peer pressure to continue. She did not want to be seen as a failure and tried to cope with the torture by telling herself that if she survived, she could enjoy sorority life for the remainder of college.
Plaintiff testified as to how her life was impacted during the pledge weeks. She was depressed, stopped going to her classes, and felt tired and sick. She was "not in a good state of mind" and cut off virtually all communication with her family with whom she had a close loving bond prior to her decision to pledge. Plaintiff explained that her attendance suffered because she was depressed and sick, but also because she was forced to attend sorority member's classes for them. The continuous hazing over this ten-week period left Plaintiff feeling physically and emotionally bruised, hurt, emotionally scarred, and utterly deflated as a human being. Plaintiff credibly testified that on more than one occasion she had thoughts of suicide.
Plaintiff also suffered physical manifestations of her emotional trauma during the pledge period. Plaintiff testified that her anxiety caused her to stop eating. In addition to loss of appetite, Plaintiff felt like she had no time to eat because she was always running errands for the sorority members during the day, followed by torturous nights in the basement of 410 Hudson. On other nights, Plaintiff was unable to sleep because sorority members required pledges to send hourly videos to prove they were awake. The requirement to send videos ended at four o'clock in the morning, which left her little time for rest since she had to wake up early for class or to run errands for sorority members. Plaintiff testified that even trying to "sneak a nap" in between errands became impossible because she was always on edge. She feared that if one of the sorority members found her sleeping, she would be subjected to additional punishment. Plaintiff explained that those found to be in violation of the sorority's directives would be singled out to receive the brunt of that night's torture. If eggs were being thrown, the offender would get the most eggs, or if people were getting hit, the offender would be hit the hardest. Plaintiff indicated that there were many ways to get yourself in trouble with the sorority, such as cleaning the sorority house poorly, or doing a bad job with a member's homework. The homework was a particular problem because the pledges were freshmen forced to do work intended for juniors and seniors. An unsatisfactory grade on a test or paper would result in additional punishment for the pledge.
Plaintiff's involvement with the sorority ended on or about April 12, 2019. On that date the sorority members directed Plaintiff and four other pledges into the basement of 410 Hudson. They were singled out because the sorority members had discovered that they the pledges were texting each other about being upset with how they were being treated. Plaintiff testified that she and the other four pledges had "a really bad experience" that night as they were once again forced to plank on rice and broken glass. Defendant Nelson was personally present on this occasion and threw eggs directly onto Plaintiff's head and poured hot sauce onto her face and into her eyes. This incident left Plaintiff physically bloodied and scarred emotionally.
The next morning, Plaintiff called home and confided in her sister as to what had been taking place. Plaintiff testified that this conversation made her finally realize that she couldn't, and didn't want to, participate any further. She "just couldn't take it anymore." Her sister informed her parents who drove to Albany the next day. At the insistence of her parents, Plaintiff gave school authorities a detailed account of what was occurring. In response, the school launched a lengthy investigation which included interviews and hearings. Plaintiff identified the perpetrators, including Defendant Nelson, and revealed that they were still attempting to manipulate her by promising that they would still "love her" if she stopped cooperating with the investigation.
Plaintiff dropped out of the University at Albany that semester, never to return. Plaintiff testified that before she went to college, she was happy, friendly, and outgoing with a desire to fit in and live life. She was excited to attend the University at Albany and interested in experiencing what it was like to be in a sorority. However, Plaintiff credibly testified that the hazing she was subjected to left her a completely different person. By the time she left the school she had become depressed, moody, and anti-social.
When Plaintiff returned home her mental health deteriorated. Plaintiff's parents became concerned and worried about her ability to cope with what she had experienced. Plaintiff's mother found letters in Plaintiff's room that she had written to "say goodbye" to her family. The letters indicated that she didn't want to live anymore because she felt worthless and ashamed. Plaintiff began treating with a therapist who diagnosed her with PTSD, depression, and anxiety. Plaintiff credibly testified that the trauma she experienced still haunts her and diminishes her quality of life to this day. Plaintiff has since enrolled in a local college where she is slowly working towards regaining trust and earning a degree.
Decision
By failing to Answer Plaintiff's Summons and Amended Complaint, defendants Nicole Nelson and Hudson 410 Inc. were found to be in default pursuant to CPLR §3215. By defaulting, these defendants have "admitted all traversable allegations in the complaint, including the basic allegation of liability." Kim v. S&M Caterers 136 A.D.3d 755, (2d Dept. 2016). Accordingly, the sole issue to be determined at inquest is the extent of damages sustained by the plaintiff. See Rokina Optical Co. v. Camera King, Inc. 63 N.Y.2d 728 (1984); see also Gonzalez v. Wu, 131 A.D.3d 1205 (2d Dept. 2015). At an inquest, it is error to deny a properly plead cause of action on the issue of liability against a defendant who has defaulted. See Younja Lee v. Hong Kong Supermarket, 214 A.D.3d 964 (2d Dept. 2023); see also LD Acquisition Co.9, LLC., v. TSH Trade Group, LLC., 211 A.D.3d 928 (2d Dept. 2022).
However, if this Court were to reach the issue of liability, it would find that the egregious acts committed by Defendant Nelson against Plaintiff are sufficient to sustain the various causes of action asserted against her in the Amended Complaint. The credible testimony offered by Plaintiff that she was punched, pushed, and bombarded by objects clearly satisfies the elements of assault and battery. See Tarasiuk v. Levoritz, 216 A.D.3d 1031 (2d Dept. 2023); see also Bastein v. Sotto, 299 A.D.2d 432 (2d Dept. 2002). Moreover, the physical torture and degrading treatment endured by Plaintiff was inflicted through a "deliberate and malicious campaign of harassment" orchestrated by Defendant Nelson that is sufficient to satisfy the elements of both the negligent and intentional infliction of emotional distress. See Eves v. Ray, 42 A.D.3d 481 (2d Dept. 2007); see also Estreicher v. Oner, 148 A.D.3d 867 (2d Dept. 2017). The cumulative acts of hazing inflicted on Plaintiff were intentional, extreme, and outrageous, and caused her to endure severe emotional distress including thoughts of suicide. The acts of hazing described by Plaintiff are "utterly intolerable in a civilized community." See Matter of Leff v. Our Lady of Mercy Academy, 150 A.D.3d 1239 (2d Dept. 2017); see also Peters v. Rome City Sch. Dist., 298 A.D.2d 864 (4th Dept. 2002).
In addition to the specific causes of action plead by Plaintiff, this Court takes notice that acts of hazing are specifically prohibited by criminal statute. "A person is guilty of hazing in the first degree when, during another person's initiation or affiliation with any organization, he intentionally or recklessly engages in conduct, including, but not limited to, making physical contact with, or requiring physical activity of such other person, which creates a substantial risk of injury to such person, or a third person and thereby causes such injury." See Penal Law §120.16; §120.17. In addition to criminal liability, this statute has been interpreted as to create an implied private civil cause of action against those who engage in such acts. See Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 257 A.D.2d 924 (3d Dept. 1999). Plaintiff's testimony, coupled with the uncontested allegations of the Amended Complaint, make out the required elements of this statute. Accordingly, this Court finds that defendant Nelson is liable to Plaintiff for at least two acts of hazing when she stood on Plaintiff's back after compelling her to plank on rice and shattered glass, and when she pelted her with eggs and other objects causing her physical injuries.
With respect to Defendant 410 Hudson, Plaintiff's Verified Complaint alleges five causes of action including several intentional torts. Defendant Hudson is a holding company that owns the real property leased to the sorority. Accordingly, it would be legally impossible to sustain an award of damages against Hudson for assault, battery, or the intentional infliction of emotional distress. A careful review of the Amended Summons and Compliant reveals that only one cause of action, sounding in negligence, contains specific factual assertions against Defendant Hudson. A landlord has a common law duty to take minimal precautions to protect tenants from foreseeable harm including the illegal acts of third parties. See Tarasiuk v. Levoritz, 2023 NY Slip Op 02698 (2d Dept. 2023); see also Lane v. Barker, 241 A.D.2d 739 (3rd Dept. 1997). Plaintiff's Verified Complaint alleges that Defendant Hudson knew that hazing was taking place in its property and took no action to stop it. Given the procedural posture of this case, and the fact that Defendant Hudson failed to Answer, the Court is constrained to make a finding of liability. See LD Acquisition Co. 9, LLC v. TSH Trade Group, LLC, 211 A.D.3d 928 (2d Dept. 2022).
Regarding the issue of damages, Plaintiff credibly and extensively testified how the trauma she suffered has affected her life. She explained that the anxiety and paranoia that developed after the hazing has diminished the quality of her life in many ways starting right after the hazing and continuing to date. Plaintiff has trouble trusting women her age and making new friendships. She wakes up in the middle of the night from nightmares. She is afraid of starting new things because she believes she cannot finish them or will be traumatized by the process. After leaving the University at Albany Plaintiff became an unhappy recluse, sitting in her room, lying in bed, and refusing to leave the house. Beginning in 2021, with the help of her therapist, Plaintiff slowly began leaving her home when accompanied by a close friend. Plaintiff never experienced anxiety or any of these other trauma related consequences prior to the hazing she endured.
Plaintiff credibly testified that the trauma also affected her relationships because of how moody and closed off she became. She was "at a really low point" when she left Albany. After relocating back home Plaintiff enrolled in a local college but found herself to be unmotivated and depressed. Plaintiff's schoolwork suffered as a result. Plaintiff failed almost all her classes in the semester after her return home because she couldn't get out of bed and did not complete her assignments. Plaintiff testified that she completed her first semester at the University at Albany with a 3.5 GPA, but when she completed her next semester at the College of Staten Island, her GPA dropped to 1.9 which placed her into academic probation.
Plaintiff further testified that the traumatic experiences she lived through also affected her work life. She would make appointments for job interviews but then fail to show out of fear. This fear was considerably worse if she believed the interviewer was a woman. Retail jobs were not possible because she felt uncomfortable around people. When asked if she still feels affected by everything she went through, plaintiff stated "Yes. I think I'm still working towards a lot of things. It will always be there I guess, what happened, but I'm trying to move forward." This Court fully credits Plaintiffs account of what occurred when she pledged for AZD and the traumatic and long-lasting effects the events had on her life.
After listening to the credible and moving testimony offered by Plaintiff and considering the documentary and photographic evidence offered in support of her claim for damages, this Court awards the following: against Defendant Nelson, the Court awards Plaintiff the sum of $300,000 for past and future pain, suffering, and mental anguish. As against Defendant Hudson, the Court awards Plaintiff the sum of $50,000 in relation to the negligence cause of action.