The following e-filed documents, listed by NYSCEF document number (Motion 003) 61, 62, 63, 64, 68, 74 were read on this motion to/for DISMISS.

Plaintiff N. H. ("Plaintiff") moves to dismiss all counterclaims asserted by Defendant John Douglas Graham ("Defendant") pursuant to CPLR §§ 3211(a)(1), (5), and (7). Specifically, Plaintiff seeks dismissal of Defendant's counterclaims for defamation, intentional infliction of emotional distress, and unjust enrichment. For the reasons set forth below, the motion is granted in its entirety.

This case arises under the Child Victims Act (CPLR § 214-g), pursuant to which Plaintiff alleges she was subjected to grooming and sexual abuse beginning in 1995, when she was a minor. According to the amended complaint, Plaintiff, then a 14-year-old fashion model, met Defendant—a man 31 years her senior and then a partner at KPMG—who allegedly began a pattern of abuse that continued well into her adulthood. Plaintiff alleges that Defendant orchestrated a prolonged and coercive sexual relationship that began with acts of oral sex at hotels paid for with corporate funds and eventually involved sexual intercourse and sadomasochistic practices during her minority.

Defendant denies these allegations, asserting that his romantic relationship with Plaintiff began in 2004, when she was over the age of majority. In response to the allegations set forth in [*2]the amended complaint, Defendant has filed counterclaims sounding in defamation, intentional infliction of emotional distress, and unjust enrichment.

Plaintiff now moves to dismiss the counterclaims on the grounds that (1) the defamation counterclaim is barred by the absolute litigation privilege; (2) the emotional distress claim is time-barred; and (3) the unjust enrichment claim fails to state a cause of action and is duplicative of the other claims.

Plaintiff, through counsel, argues that the defamation counterclaim is wholly premised on statements made in the complaint and amended complaint, and is thus barred under New York's absolute litigation privilege. Plaintiff also contends that the intentional infliction of emotional distress claim is untimely, as it is based on events that ended no later than 2016, invoking the one-year statute of limitations applicable to intentional torts. As to the unjust enrichment claim, Plaintiff asserts that it fails to plead the requisite elements and merely restates allegations derivative of the defamation claim.

Defendant, proceeding pro se, contends that the litigation privilege does not apply due to the allegedly "scandalous," "irrelevant," and "malicious" nature of certain allegations in the complaint, including references to Ghislaine Maxwell and Jeffrey Epstein. He asserts that the privilege is overcome by malice, citing Front, Inc. v. Khalil, 24 NY3d 713 (2015). He also argues that the claim for emotional distress is not time-barred due to the presence of "actual malice" and that the unjust enrichment claim is independently viable because Plaintiff allegedly derived reputational or economic benefit through a lawsuit that lacks merit. He references police reports and medical records to support his allegations of abuse by Plaintiff during the course of their relationship.

"On a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(5) on the ground that it is barred by the statute of limitations, a movant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011][quoting Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 [2d Dept 2008]); see also Gravel v Cicola, 297 AD2d 620 [2d Dept 2002]). "The burden then shifts to the [opponent] to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendant" (QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 65 [2d Dept 2013]; see MTGLQ Investor, LP v Wozencraft, 172 AD3d 644 [1st Dept 2019]; Epiphany Community Nursery School v Levey, 171 AD3d 1 [1st Dept 2019]; J.A. Lee Elec., Inc. v City of New York, 119 AD3d 652 [2d Dept 2014]).

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 Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). Ordinarily, the court's inquiry is limited to assessing the legal sufficiency of the pleadings; accordingly, the court's only function is to determine whether the facts as alleged fit [*3]within a cognizable legal theory (JF Capital Advisors, 25 NY3d at 764, supra). However, where the complaint consists of bare legal conclusions with no factual specificity (Godfrey v Spano, 13 NY3d 358, 373 [2009]) or where the statements in a pleading are not sufficiently particular to give the court and parties notice of the transactions and/or occurrences intended to be proven (CPLR §3013; Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 31 NY3d 1090, 1091 [2018]), the motion to dismiss should be granted. Indeed, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Garber v Board of Trustees of State Univ. of NY, 38 AD3d 833, 834 [2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). CPLR §2013, states that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Thus, conclusory allegations will not suffice (see DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 239 [2d Dept 1984]; Fowler v American Lawyer Media, 306 AD2d 113, 113 [1st Dept 2003]; Sheriff v Murray, 33 AD3d 688 [2d Dept 2006]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted (see Schuckman Realty v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Ch., Local No. 852, Civ. Serv. Empls. Assn., 95 AD2d 800, 800 [2d Dept 1983]).

On a motion to dismiss under CPLR § 3211 (a)(1), courts may grant such relief only where the "documentary evidence" is of such nature and quality —"unambiguous, authentic, and undeniable" — that it utterly refutes plaintiff's factual allegation, thereby conclusively establishing a defense as a matter of law (see Phillips v Taco Bell Corp., 152 AD3d 806, 806-807 [2d Dept 2017]; VXI Lux Holdco S.A.R.L v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019] ["A paper will qualify as 'documentary evidence' if ... (1) it is 'unambiguous,' (2) it is of 'undisputed authenticity,' and (3) its contents are 'essentially undeniable"'].) The Appellate Division, First Department, has explained that the documentary evidence must "definitely dispose of the plaintiff's claim" (Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

New York law provides an absolute privilege for statements made in the course of judicial proceedings so long as the statements are "material and pertinent to the questions involved." (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007]; Gottwald v Sebert, 40 NY3d 240 [2023]). The Court of Appeals has repeatedly affirmed that this privilege is not subject to a malice exception, even where the statements are inflammatory or allegedly false (id.)

Defendant's reliance on Front, Inc. v Khalil, 24 NY3d 713, supra, is misplaced. That case dealt with whether privilege extended to pre-litigation communications, not to the well-settled absolute privilege governing statements made in pleadings. Here, Defendant expressly cites paragraphs in the amended complaint (e.g., ¶¶20, 21, 25) as the foundation of the defamation counterclaim. As such, the privilege squarely applies.

Nor does Defendant's argument about "scandalous" or "irrelevant" material change the analysis. Courts have held that the test for pertinence is "extremely liberal" (Flomenhaft v Finkelstein, 127 AD3d 634 [1st Dept 2015]) and that "any doubt should be resolved in favor of upholding the privilege" (Dachowitz v Kranis, 61 AD2d 783 [2d Dept 1978]).

Accordingly, the defamation counterclaim must be dismissed.

Claims for intentional infliction of emotional distress are subject to a one-year statute of limitations under CPLR § 215(3) (Gallagher v Directors Guild of Am., 144 AD2d 261 [1st Dept 1988]; Ross v Louise Wise Servs., Inc., 28 AD3d 272 [1st Dept 2006]). Defendant's own affidavit acknowledges that the conduct giving rise to this claim occurred between 2003 and 2016. This action was commenced in 2019, and the counterclaim was not timely interposed within one year of the alleged events.

To the extent Defendant argues that malice tolls the limitations period, that assertion is unsupported by legal authority. The tolling doctrine does not apply to claims barred under CPLR § 215(3), and the presence of "malice" does not extend a statutory deadline otherwise governed by clear precedent.

The court further notes that allegations based on the content or consequences of the litigation itself—such as emotional distress caused by the complaint—cannot support an intentional infliction of emotional distress claim, as such acts are not considered "outrageous" or "atrocious" in a legal sense (Kaye v Trump, 58 AD3d 579 [1st Dept 2009]).

The emotional distress claim is thus untimely and legally deficient.

To establish a claim for unjust enrichment, a party must show (1) that the other party was enriched, (2) at the movant's expense, and (3) that equity and good conscience require restitution. (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]).

Defendant fails to meet this standard. His unjust enrichment counterclaim is based on allegations that Plaintiff gained notoriety and benefit from publicizing untrue claims. However, as courts have emphasized, a litigant cannot bootstrap a defamation claim into a quasi-contractual unjust enrichment theory merely by alleging that the subject of the speech derived reputational or economic benefit (Corsello v Verizon NY, Inc., 18 NY3d 777, 790 [2012]).

Moreover, where an unjust enrichment claim "simply duplicates, or replaces, a conventional tort claim," it must be dismissed (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). Here, Defendant's claim overlaps entirely with his defamation theory and lacks the independent factual basis required to sustain a quasi-contractual claim.

For the foregoing reasons, it is hereby

ORDERED that Plaintiff's motion to dismiss Defendant's counterclaims is granted in its entirety; and it is further

ORDERED that Defendant's counterclaims for defamation, intentional infliction of emotional distress, and unjust enrichment are dismissed with prejudice pursuant to CPLR §§ 3211(a)(1), (5), and (7).

This constitutes the decision and order of the court.