I. Statement Pursuant to CPLR § 2219 [a]

The following papers were read on this motion. Defendant's Notice of Motion with Affirmation of Counsel and Exhibits; (NY St Cts Filing [NYSCEF] Doc Nos. 4-6) Plaintiff's Affirmation in Opposition with Exhibits, including Plaintiff's Affidavit; (NY St Cts Filing [NYSCEF] Doc Nos. 9-11) Defendant's Reply Affirmation (NY St Cts Filing [NYSCEF] Doc [*2]No. 12). Oral argument was heard in court on August 14, 2025.

Upon the foregoing papers, the Decision and Order is as follows:

II. Facts

Plaintiff commenced this action by filing a Summons and Verified Complaint on March 3, 2025. (NY St Cts Filing [NYSCEF] Doc No. 1). The pleading asserts fourteen causes of action sounding in assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, gross negligence, violations of the Penal Law characterized as prima facie tort, violation of the New York City Gender-Motivated Violence Protection Law ("GMVPL"), sexual assault and related theories, and violations of the New York State and City Human Rights Laws.

The claims arise from three discrete medical appointments with Defendant, a licensed physician, occurring on November 29, 2022; October 31, 2023; and January 18, 2024. The Verified Complaint alleges that on each date, Defendant, while acting in his professional capacity, maintained continuous and inappropriate eye contact with Plaintiff during examinations, and thereafter invited her into his private office without clinical justification, test results to discuss, or therapeutic purpose. Plaintiff alleges that these acts fell outside accepted medical practice and caused her emotional distress.

In a sworn affidavit submitted in opposition, Plaintiff amplifies these allegations, averring that during the November 29, 2022 gynecological examination, Defendant inappropriately touched her legs and deliberately made contact with her nipples without medical necessity, while maintaining unwavering eye contact. Plaintiff describes feeling violated and perceiving the contact as sexual rather than medical. She further attests that during the January 18, 2024 appointment, Defendant again invited her into his private office without a medical purpose, which she perceived as personal rather than professional. Plaintiff avers that these incidents caused considerable emotional distress, anxiety, and a loss of trust in the medical profession, leading her to discontinue care.

Defendant now moves under CPLR § 3211 [a] [5] to dismiss as time-barred, asserting CPLR § 215 [3]'s one-year period applies to the intentional tort claims, and under CPLR § 3211 [a] [7] for failure to state a claim, contending that the conduct alleged, even as supplemented by the affidavit, does not meet the legal thresholds for any of the asserted causes of action. Defendant also challenges the affidavit as improperly adding new factual allegations.

Plaintiff opposes, asserting that the affidavit is a permissible amplification under Leon v Martinez, 84 NY2d 83 (1994); that the conduct can be characterized as professional negligence or malpractice governed by the 2½-year period under CPLR § 214-a; that the GMVPL carries a seven-year limitations period (A.M.P. v Benjamin, 201 AD3d 50 [3d Dept 2021]); and that all claims are sufficiently pleaded under the liberal construction standard.

III. Conclusions of Law

On a motion under CPLR § 3211 [a] [7], the Court must accept the facts alleged as true, accord the plaintiff the benefit of every favorable inference, and determine only whether those facts fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83 [1994]). Affidavits may be considered to remedy defects in the complaint and to amplify allegations consistent with the pleading (see id at 88). Under CPLR § 3211 [a] [5], dismissal on statute-of-limitations grounds is warranted only where untimeliness appears on the face of the pleading and no factual dispute exists; where more than one limitations period may apply, the one most favorable to the plaintiff is applied at this stage.

Here, Plaintiff's allegations of nonconsensual, non-therapeutic contact during medical care can be viewed as both intentional torts and as professional negligence or malpractice. The latter characterization carries a 2½-year limitations period under CPLR § 214-a. On this record, the Court cannot conclusively determine that CPLR § 215 [3]'s one-year period governs to the exclusion of all others. The possibility that the claims sound, at least in part, in malpractice precludes dismissal on limitations grounds. Accordingly, the CPLR § 3211 [a] [5] branch is denied in its entirety.

A. Each Cause of Action Addressed

Turning to the CPLR § 3211 [a] [7] branch, the Court addresses each cause of action.

Assault: as defined in Teller v Galak, 162 AD3d 959 [2d Dept 2018], assault is the intentional placing of another in apprehension of imminent harmful or offensive contact. Plaintiff alleges that Defendant's conduct during examinations, including fixed and unwavering eye contact coupled with physical proximity, placed her in apprehension of imminent unwanted contact. If proven, these facts satisfy the element of apprehension; intent may be inferred at the pleading stage. This cause of action is sufficiently stated.

Battery: Lepore v Town of Greenburgh, 120 AD3d 1202 [2d Dept 2014], holds that battery is the intentional, nonconsensual touching of another. Plaintiff's affidavit describes physical contact with her legs and nipples without medical necessity or consent. These sworn allegations satisfy the elements of intentional contact and lack of consent, and the professional setting does not negate their sufficiency at this stage.

Intentional Infliction of Emotional Distress: Under Video Voice, Inc. v Local T.V., Inc., 156 AD3d 848 [2d Dept 2017], the elements are extreme and outrageous conduct, intent or reckless disregard, causation, and severe emotional distress. Allegations of sexualized contact in a medical examination by a physician, if proven, could be found extreme and outrageous by a trier of fact. The sworn facts allege intent or reckless disregard, a causal link to Plaintiff's distress, and the severity of that distress, satisfying all elements.

Negligent Infliction of Emotional Distress: Feaster v Poly Prep Country Day Sch., 227 AD3d 668 (2d Dept 2024) confirms that such a claim requires a duty, breach, causation, and injury, with the guarantee of genuineness supplied by the circumstances. Here, the physician-patient relationship establishes duty; alleged non-therapeutic touching constitutes breach; emotional distress and loss of trust supply causation and injury. The nature of the alleged conduct provides the requisite guarantee of genuineness.

Negligence: The elements of duty, breach, causation, and damages are plainly alleged. The duty flows from the professional relationship; breach is alleged in the form of intimate contact without medical justification; causation and harm are asserted in Plaintiff's emotional injuries. This cause of action is viable under Leon's liberal standard.

Gross Negligence: Defined in Est. of Pierro v. Carmel Richmond Healthcare, 81 Misc 3d 1085 [Sup Ct, Richmond County 2023], as conduct that smacks of intentional wrongdoing or demonstrates reckless indifference. Plaintiff's allegations of repeated intimate contact without clinical basis, in violation of a fiduciary duty, if proven, could meet this standard.

Violations of Penal Law/Prima Facie Tort: Although challenged as time-barred and insufficient, these claims rest on the same alleged acts underlying other viable causes of action. The Court cannot conclude at this stage that they fail as a matter of law, and they survive under the liberal pleading rule.

GMVPL: NYC Admin. Code § 10-1103 defines a "crime of violence" as conduct [*3]constituting a misdemeanor or felony against the person involving a serious risk of injury, motivated by gender. In Engelman v Rofe, 194 AD3d 26 [1st Dept 2021], and Breest v Haggis, 180 AD3d 83 [1st Dept 2019], the First Department recognized that nonconsensual sexual contact satisfies the statute's definition. AMP. v Benjamin, 201 AD3d 50 [3d Dept 2021], confirms a seven-year limitations period. Plaintiff's sworn allegations describe such conduct, motivated by gender, within the statutory period. All elements are therefore met at the pleading stage.

Sexual Assault/Abuse/Sexual Battery: For the reasons discussed under assault and battery, and given the potential applicability of the malpractice limitations period, these claims cannot be dismissed at this stage.

NYS and NYC HRL: The NYS HRL prohibits discrimination in public accommodations, including medical offices, on the basis of gender (see Hernandez v Robles, 7 NY3d 338 [2006]); the NYCHRL is to be construed liberally for its broad remedial purposes. Allegations of unwanted, gender-motivated conduct in a medical setting meet these standards. The pleadings assert the statutory elements of protected status, denial of full and equal enjoyment of services, and causation.

IV. Conclusion and Decretal Paragraphs

For the foregoing reasons, the Court finds that none of the causes of action are conclusively time-barred on the face of the pleadings, and that each is sufficiently stated under the liberal construction standard applicable on a CPLR § 3211 motion. The factual allegations, as amplified by Plaintiff's sworn affidavit, fit within cognizable legal theories under the statutes and case law cited.

It is hereby ORDERED that Defendant's motion to dismiss pursuant to CPLR § 3211 [a] [5] is DENIED in its entirety; and it is further,

ORDERED that Defendant's motion to dismiss pursuant to CPLR § 3211 [a] [7] is DENIED in its entirety; and it is further,

ORDERED that Defendant's request to deem the action frivolous is DENIED.