Supreme Court, New York County, March 1, 2024

Kaufman Borgeest & Ryan LLP (David Bloom and Brennan Breeland of counsel) for John Doe, defendant.

Leila Cardo for Samuel Field YM & YWHA, defendant.

The Law Firm of Andrew M. Stengel (Andrew Stengel of counsel) for plaintiff.

In August 2023, plaintiff Jane Doe commenced this action under the Adult Survivors Act (CPLR 214-j), and Victims of Gender-Motivated Violence Protection Law (hereinafter, GMVL) against John Doe, Camp Poyntelle, and Samuel Field YM & YWHA, alleging John Doe sexually assaulted her while she was intoxicated at a summer camp reunion in Pennsylvania. In motion sequence 003, John Doe moves to dismiss (1) plaintiff's causes of action for battery, intentional infliction of emotional distress, and intentional violations of five statutes in article 130 of the New York State Penal Law pursuant to CPLR 3211 (a) (5) as barred by the statute of [*2]limitations, and (2) her causes of action for negligence and statutory violation of the GMVL under CPLR 3211 (a) (7) for failure to state a cause of action. In motion sequence 004, Samuel Field moves to dismiss plaintiff's causes of action for negligence and intentional violation of the GMVL pursuant to the same two CPLR rules. While plaintiff opposes both motions in their entirety, she seeks to serve an amended complaint in response to motion sequence 004. For the following reasons, motion sequence 003 is denied in its entirety and motion sequence 004 is granted in part.

On or about August 6, 2016, plaintiff and defendant John Doe—both alleged residents of New York—attended an "Alumni Day" reunion for Camp Poyntelle in the Poconos operated by Samuel Field YM & YWHA. (NY St Cts Elec Filing [NYSCEF] {**83 Misc 3d at 410}Doc No. 1 ¶ 17, original complaint.) Many of those attending the reunion stayed at a nearby, unnamed inn, including plaintiff. (Id. ¶ 19.) That evening, plaintiff alleges that the inn's bar hosted "a continuation" of the reunion festivities, during which she and others became intoxicated. (Id. ¶¶ 21-22.) After her friends escorted her to her room and put her to bed, plaintiff describes waking sometime later to find defendant having sexual intercourse with her to which she did not consent. (Id. ¶¶ 23-25.) Plaintiff's first cause of action against Doe is for battery and intentional violations of New York State Penal Law article 130 (entitled "Sex Offenses"), in particular sections 130.35 (1) and (2) (rape in the first degree), 130.65 (1) and (2) (sexual abuse in the first degree), and 130.52 (forcible touching). Her second and third causes of action against Doe are for, respectively, intentional infliction of emotional distress and section 10-1104 of the Administrative Code of the City of New York, or the Gender-Motivated Violence Protection Law.

As to the relationship between Samuel Field and the inn, in her original complaint, plaintiff alleges that Samuel Field (1) should have known about Doe's alleged propensity to sexually assault camp attendees (NYSCEF Doc No. 1 ¶¶ 29, 32, 33), (2) did not have policies or protocols in place to protect attendees and did not properly monitor or otherwise supervise Doe's interactions with attendees (id. ¶¶ 30, 36-37), and (3) failed to take appropriate measures to evaluate Doe's fitness to attend the reunion in the first place (id. ¶ 62). Plaintiff's amended complaint provides more context: she avers that Samuel Field suggested reunion attendees stay at the inn (NYSCEF Doc No. 58 ¶ 19, proposed amended complaint), that the inn was the only place where camp employees and attendees could gather and sleep (id. ¶ 21), that camp employees told reunion attendees to gather at the bar at the inn on August 6 (id. ¶ 24), and that camp staff observed underage drinking at the bar yet failed to intervene (id. ¶ 25).

In contrast, Adam Popper, who was the assistant director of Camp Poyntelle during the relevant time, testifies that the activities for the reunion began at 12 noon and ended at 5 p.m., when attendees were asked to depart the camp unless attending a campfire at the lake on the campgrounds. (NYSCEF Doc No. 50 at 2, Popper aff.) Additionally, Popper explains that Samuel Field did not book or make arrangements for attendees' hotel accommodations in connection with the event, had no affiliation with any of the inns surrounding the camp, nor "make {**83 Misc 3d at 411}arrangements for, sanction or host any continuation of Alumni Day at any location off camp grounds." (Id.) In his words, "[t]he after-Alumni Day activities at the local inn of which plaintiff complains were not in any way part of the camp alumni reunion, and were not organized, sanctioned or supervised by Samuel Field." Plaintiff asserts causes of action against [*3]Samuel Field for negligence and violation of the GMVL.

Dismissal under CPLR 3211 (a) (5)—Statute of Limitations

Plaintiff commenced this action approximately six years after her sexual assault under the Adult Survivors Act (ASA), specifically CPLR 214-j. Effective May 24, 2022, this CPLR provision provides:

"Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article [130] . . . committed against such person who was eighteen years of age or older . . . which is barred . . . because the applicable period of limitation has expired . . . is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section." (CPLR 214-j [emphasis added].)

In motion sequences 003 and 004, defendants Doe and Samuel Field contend that the Adult Survivors Act and CPLR 214-j operate to revive only claims and causes of action premised on sexual offenses committed in New York. This is because (1) New York only has the power to enact and enforce criminal statutes within its territorial borders, (2) to be prosecuted under article 130 for a "sexual offense," the conduct constituting the crime must have taken place in New York, and (3) by its very terms, CPLR 214-j applies to conduct which constitutes an offense under article 130. (See NYSCEF Doc No. 35 at 10-12, John Doe mem of law.) Moreover, defendants argue that certain rules of statutory interpretation support their theory, namely that "unless expressly stated otherwise, no legislation is presumed to . . . operate outside the territorial jurisdiction of the state . . . enacting it." (See S.H. v Diocese of Brooklyn,{**83 Misc 3d at 412} 205 AD3d 180, 187-188 [2d Dept 2022] [internal quotation marks omitted], citing Goshen v Mutual Life Ins. Co. of N.Y., 286 AD2d 229, 230 [1st Dept 2001].) Being, then, that plaintiff alleges she was sexually assaulted in Pennsylvania, defendants contend CPLR 214-j does not revive plaintiff's otherwise untimely commenced action. The court is unpersuaded.

In Samuel W. v United Synagogue of Conservative Judaism, the First Department analyzed the territorial scope of the Child Victims Act (CVA) and CPLR 214-g, which revived otherwise time-barred causes of action brought by child victims of sexual abuse and, in doing so, served as a model for the ASA. Like the Second Department in S.H. v Diocese of Brooklyn, the First Department found that the CVA and CPLR 214-g apply to claims of sexual abuse irrespective of where the incidents themselves occurred, whether within or outside New York. (Samuel W., 219 AD3d 421, 422 [1st Dept 2023]; Doe v Wilhelmina Models, Inc., 226 AD3d 30 [1st Dept 2024]; Diocese of Brooklyn, 205 AD3d at 187.) The First Department explained its rationale as such:

"[c]ontrary to defendants' position, 'it is not a violation of one of the enumerated penal statutes that is required to trigger the revival of certain civil causes of action, but rather it is "conduct which would constitute" . . . a sexual offense . . . ' New York's criminal statutes' territorial [*4]limitations are, thus, not a basis for excluding claims under the CVA." (Samuel W., 219 AD3d at 422 [emphasis added and citations omitted].)

The Court went on to refute the suggestion that the purpose of the CVA was to apply only to those "acts of sexual abuse that occurred in" the State of New York (see Gumpel v New York Province of the Socy. of Jesus, U.S.A., 2022 WL 14813805, *2, 2022 NY Misc LEXIS 40975, *4 [Sup Ct, NY County 2022]), explaining that the purpose of CPLR 214-g was to remedy the injustices to survivors of child sex abuse by extending the "restrictive" statute of limitations that required most survivors to file civil actions or criminal charges long before they reported or came to terms with their abuse. (Samuel W., 219 AD3d at 422.) Further, in refuting the proposition that long-established rules of statutory interpretation require a different conclusion, the First Department pointed out that, under CPLR 214-g's plain language, the term "every" applies to all "civil claim[s] or cause[s] of action" that would have been properly brought in New York in the first instance. (Id.) Accordingly, even though{**83 Misc 3d at 413} the alleged sexual abuse in Samuel W. occurred outside New York, the plaintiff's cause of action was properly revived since she was a resident of New York. (Id. at 422; see also Diocese of Brooklyn, 205 AD3d at 190-191 ["CPLR 214-g does not apply extraterritorially, where the plaintiff is a nonresident, and the alleged acts of sexual abuse were perpetrated by a nonresident outside of New York"].)

In attempting to cast doubt on Samuel W.'s persuasive authority, John Doe selectively cites Monahan v Toback to argue that at least one court has already determined that the ASA—not the CVA—"applied only to conduct that occurred within the State of New York." (2023 WL 2895178, *4, 2023 NY Misc LEXIS 27127, *9-10 [Sup Ct, NY County 2023].) The relevant quote, however, is "the history, purpose, and the text of the statute along with relevant caselaw demonstrate that the ASA applies to acts of sexual abuse that occurred in the state of New York regardless of where the plaintiff lives at the time of filing." (Id.) Of course, armed with the full quote, Monahan neither limits CPLR 214-j's applicability to only those cases involving sexual assaults within New York nor addresses factual circumstances where, like here, both plaintiff and defendant Doe are residents and the crime itself takes place outside New York.

Given that the ASA is, in defendant Doe's words, "a functionally identical revival statute" to the CVA, the court sees no reason why the First Department's holding in Samuel W. should not be applied to the ASA. Accordingly, since plaintiff alleges that both she and defendant were residents of New York State at the time the alleged sexual assault occurred, CPLR 214-j revives her claims. The branches of motion sequence 003 and 004 that seek dismissal based on the statute of limitations are denied.^[FN1]

Dismissal under CPLR 3211 (a) (7)—Failure to State a Cause of Action

Motion Sequence 003—John Doe

On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87 [1994]; JF{**83 Misc 3d at 414} Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764[*5][2015].) A court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its only function is to determine whether, from facts alleged and inferences drawn therefrom, plaintiff has stated the elements of a cognizable cause of action. (JF Capital Advisors, 25 NY3d at 764; Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003].)

The GMVL provides, "any person claiming to be injured by a party who commits, directs, enables, participates in, or conspires in the commission of a crime of violence motivated by gender has a cause of action against such party in any court of competent jurisdiction." (Administrative Code of City of NY § 10-1104.) Moreover, "crime of violence" is defined by the statute to mean "an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law." (Administrative Code § 10-1103.) As with CPLR 214-g and 214-j, the GMVL's plain language demonstrates that a plaintiff has a cause of action based on whether the individual engages in conduct that constitutes a crime of violence—not on whether the offender may or may not (given the location of the crime) be prosecuted for such crime. Accordingly, for the GMVL to exceed the territorial limitations of New York City or even New York State, it is insufficient, in and of itself, for the alleged sexual assault to have taken place outside New York City.

To this point, while defendant John Doe contends "the GMVL has no applicability to acts allegedly committed by a non-resident and outside the City and State of New York" (NYSCEF Doc No. 35 at 15), his only evidence that he was not/is not a resident of New York City is his affidavit. Per paragraph three, John Doe alleges, "On August 6, 2016, I was not resident of the City of New York, but of Nassau County, New York." (NYSCEF Doc No. 34 ¶ 3, John Doe aff.) Yet he does not attach documentary evidence establishing this fact, meaning the court cannot take it to be true, since to do so would require it to reject facts plaintiff has alleged in her complaint. Accordingly, for purposes of this motion, the court must treat both parties as residents of New York City.

But even if John Doe is considered a resident of Nassau County, as he asserts in his affidavit, it is not clear this would have any effect on the outcome on this motion. Based on the court's reading of Samuel W., the only residency that is relevant{**83 Misc 3d at 415} to whether CPLR 214-g, 214-j, or the GMVL can be applied "territorially" to sexual assaults occurring outside New York is the plaintiff's. (See Samuel W., 219 AD3d at 422 ["plaintiff's claims were properly revived under CPLR 214-g. Even though the alleged sexual abuse occurred outside of New York, plaintiff was a New York resident at the time the action accrued" (emphasis added)].)^[FN2] As this quote makes clear, there is simply no reference to the defendant's residency as bearing any weight in this consideration. And yet, defendant Doe suggests, "upon information and belief" only, that plaintiff was not a resident of New York City on August 6, 2016. (See NYSCEF Doc No. 34 ¶ 4.) Since the court must also accept plaintiff's residency to be in New York City, defendants have not demonstrated the GMVL to be inapplicable to plaintiff's claims.[*6]

Motion Sequence 004—Samuel Field

To properly plead a claim for negligence, plaintiff must show that Samuel Field owed her a duty, breached that duty, and that breach proximately caused harm to the plaintiff. (Katz v United Synagogue of Conservative Judaism, 135 AD3d 458, 459 [1st Dept 2016].) Whether a duty exists between the parties depends on circumstance and is an issue of law for the court. In analyzing whether a duty exists, it must consider a broad range of societal and policy factors like "the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability." (Id., citing Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 500 [1st Dept 2007]; On v BKO Express LLC, 148 AD3d 50, 54-55 [1st Dept 2017].) Furthermore, while it is true generally that a defendant has no duty to control the conduct of third persons to prevent them from harming others (see Moskowitz v Masliansky, 198 AD3d 637, 639 [2d Dept 2021]; Duncan v Black Veterans for Social Justice, Inc., 218 AD3d 442, 443 [2d Dept 2023]), certain special relationships—like employers and employees, parents and children, and common carriers—give rise to a duty that requires defendant to protect plaintiff from the conduct of others. (Moskowitz, 198 AD3d at 639.){**83 Misc 3d at 416}

Here, plaintiff has neither pleaded nor argued that a special relationship of the kind cited above exists between her and Samuel Field.^[FN3] Instead, she asks the court to find a duty based on the fact that defendant knew or should have known Doe posed a danger to plaintiff. (See NYSCEF Doc No. 59 at 16-17.) However, plaintiff merely alleges that Doe "violated some rules and regulations" when working as a former camp counselor. There are no other allegations from which to conclude that Samuel Field should have known of Doe's alleged dangerous propensities. (See N. X. v Cabrini Med. Ctr., 280 AD2d 34, 40-41 [1st Dept 2001] ["An act of sexual deviance committed by a doctor with no history of sexual misconduct is no doubt possible . . . . In assessing the scope of duty owed by (defendant's) nurses, however, a mere possibility of improper conduct is insufficient to impose liability since, historically, liability for negligence has been determined by what is probable, not merely by what is possible"].) Without anything more substantive, plaintiff's allegation of a duty based on what Samuel Field should have known is, essentially, little more than a bare conclusory allegation. (See Godfrey v Spano, 13 NY3d 358, 373 [2009] ["(C)onclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss"]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014].) Accordingly, since plaintiff has failed to establish Samuel Field owed her a duty on this basis, plaintiff's negligence claim is dismissed pursuant to CPLR 3211 (a) (7).

Accordingly, for the foregoing reasons, it is hereby ordered that defendant John Doe's motion to dismiss (mot seq 003) is denied in its entirety, and it is further ordered that the branch of defendant Samuel Field YM & YWHA's motion to dismiss (mot seq 004) pursuant to CPLR 3211 (a) (5) is denied; and it is further ordered that the branch of defendant Samuel Field's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted to the extent that plaintiff's cause of action for negligence against it is dismissed.