Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

98 CA 24-01812

Present: Lindley, J.P., Curran, Ogden, And Greenwood, JJ.

Appeal from an order of the Supreme Court, Erie County (Dennis E. Ward, J.), entered September 6, 2024. The order dismissed the amended complaint in part upon the motions of defendants-respondents for summary judgment.

[*1]

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by striking from the first and fourth ordering paragraphs the phrase "insofar as it alleges Penal Law

§ 130.35," denying the motion of defendant Matthew J. Downen in part and reinstating the twelfth cause of action against him, denying the motion of defendant Benjamin Rydzik in part and reinstating the fifth cause of action against him, and denying those parts of the motion of defendant James J. Manno seeking summary judgment dismissing the first and second causes of action and the fourth cause of action to the extent that it alleges the existence of a hostile work environment after January 15, 2017, against him and reinstating those causes of

action against him, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained from an alleged sexual assault committed against her by defendants Matthew J. Downen, Mason A. King, and Patrick Jankowski, all of whom at the time worked with plaintiff at defendant 64 Franklin, Inc., doing business as Soho Buffalo (Soho Buffalo), a bar owned and operated by defendant James J. Manno. The amended complaint alleges that plaintiff was drugged and then gang-raped by Downen, King, and Jankowski in Jankowski's apartment [*2]following a mandatory work meeting at Soho Buffalo on the evening of January 15, 2017.

In appeal No. 1, plaintiff appeals from an order insofar as it purportedly denied her request for disclosure of an unredacted copy of text messages exchanged between Manno and Downen and between Manno and a nonparty, whom plaintiff sued in a separate proceeding. In appeal No. 2, plaintiff appeals from that part of an order granting the motion of King insofar as it sought to preclude plaintiff from calling at trial eight witnesses for whom she did not provide notice before the deadline set by Supreme Court for completion of discovery. In appeal No. 3, plaintiff appeals from an order that, inter alia, granted the motions of Downen and defendant Benjamin Rydzik for summary judgment dismissing the amended complaint against them and granted in part the motions of Manno, King, and Jankowski for summary judgment dismissing the amended complaint against them.

The amended complaint asserts causes of action against Downen, King, and Jankowski for, inter alia, "Aggravated Sexual Abuse in the First Degree" based on claims that their conduct constituted several sexual offenses as defined in article 130 of the Penal Law, including rape in the first degree, and for failing to warn her that they had a sexually transmitted disease, which plaintiff contracted during the sexual assault. The amended complaint also asserts causes of action against Manno as well as Rydzik, who served as manager of Soho Buffalo when plaintiff was allegedly raped, for, inter alia, negligent hiring, retention, and supervision; unlawful service of alcohol to a minor (i.e., plaintiff); sexual harassment and gender discrimination under the New York State Human Rights Law (NYSHRL); unlawful retaliation; and aiding and abetting a violation of the NYSHRL.

Plaintiff contends in appeal No. 1 that the court abused its discretion in allowing Manno to redact portions of the text messages, which the court reviewed in camera, because they may contain relevant information. We conclude that plaintiff's appeal from the order in appeal No. 1 must be dismissed. That order did not deny plaintiff's request for a copy of the unredacted text messages; instead, it stated that the court was going to review the messages in camera, which occurred at a later date. The order thus left the dispute over the redacted text messages for another day, and "[n]o appeal lies from a portion of an order or judgment which fails to decide a motion and leaves it pending and undecided" (Town of Smithtown v Northeast Mines, 103 AD2d 741, 741 [2d Dept 1984]; see Rael Automatic Sprinkler Co., Inc. v Schaefer Agency, 52 AD3d 670, 673 [2d Dept 2008]).

In any event, we note that, inasmuch as the unredacted text messages reviewed by the court in camera were not provided to this Court on appeal, we could not have "undertake[n] meaningful review of [plaintiff's] contentions on appeal" (Christa Constr., LLC v Vanguard Light Gauge Steel Bldgs. [appeal No. 3], 181 AD3d 1310, 1311 [4th Dept 2020]) to determine whether the court abused its discretion in approving the challenged redactions. "It is incumbent upon an appellant to assemble a proper record, including the relevant documents that were before the lower court" (Momentum Auto. Mgt., LLC v Radium2 Capital, Inc., 195 AD3d 1436, 1436 [4th Dept 2021] [internal quotation marks omitted]).

With respect to appeal No. 2, plaintiff contends that, because all parties agreed with King's motion insofar as it sought to vacate the note of issue and allow defendants to depose the new witnesses, the court erred in granting the motion insofar as it sought, in the alternative, to preclude plaintiff from calling the new witnesses at trial. We reject that contention. Trial courts are afforded broad discretion to supervise discovery, "and only a clear abuse of discretion will prompt appellate action" (Castro v Admar Supply Co., Inc. [appeal No. 2], 159 AD3d 1616, 1617 [4th Dept 2018] [internal quotation marks omitted]; see Crysler v Erk [appeal No. 2], 227 AD3d 1410, 1412 [4th Dept 2024]; see generally Hirschfeld v Hirschfeld, 69 NY2d 842, 844 [1987]).

Here, we cannot conclude that the court abused its discretion in refusing to extend the discovery deadline. We note that the case had been pending for more than four years and that the court simultaneously precluded defendants from conducting a post-note of issue independent medical examination of plaintiff. We also note that plaintiff noticed other witnesses in a timely manner and did not explain why the testimony of additional witnesses was relevant or necessary. We therefore affirm the order in appeal No. 2.

In appeal No. 3, plaintiff contends that the court improperly limited the twelfth cause of action to a single violation of Penal Law former § 130.35, i.e., sexual intercourse with plaintiff when she was unable to consent by reason of being physically helpless. Plaintiff's twelfth cause of action, entitled "Aggravated Sexual Abuse in the First Degree," alleges that Downen, King, and Jankowski, in subjecting her to nonconsensual sexual intercourse and oral sexual conduct, violated Penal Law former §§ 130.35 and 130.50 and 130.70. According to plaintiff, those Penal Law-based civil claims are properly asserted pursuant to CPLR 213-c, which establishes a 20-year limitation period for "all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute" certain sex crimes identified in the statute.

Contrary to plaintiff's contention, however, CPLR 213-c "does not create a cause of action where none otherwise exists" (Gutierrez v Mount Sinai Health Sys., Inc., 188 AD3d 418, 418 [1st Dept 2020]), nor does it create a private cause of action under the Penal Law (cf. Doe v Doe, 83 Misc 3d 1282[A], 2024 NY Slip Op 51143[U], *1 [Sup Ct, Richmond County 2024]). Instead, CPLR 213-c simply extends the statute of limitations for intentional torts from 1 year (see CPLR 215 [3]) to 20 years where the underlying conduct constitutes one of the sex crimes specified in the statute. Plaintiff is required to prove a sex crime only to the extent that defendants seek dismissal of the amended complaint on statute of limitations grounds, an affirmative defense not relevant to this appeal. Inasmuch as the twelfth cause of action states a claim for battery, which occurs when "a person intentionally touches another without that person's consent" (Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293, 298 [2005], cert denied 546 US 818 [2005]), the court erred in limiting the twelfth cause of action to an alleged violation of Penal Law former § 130.35. We therefore modify the order in appeal No. 3 accordingly.

Plaintiff next contends that the court erred in granting that part of Downen's motion with respect to the twelfth cause of action. We conclude that Downen failed to meet his initial burden on the motion, and we therefore modify the order accordingly. In support of the motion, Downen submitted, among other things, plaintiff's deposition testimony, in which she testified that, although her memory was hazy due to having been drugged, she recalled all three men—Downen, King and Jankowski—passing her around and having sexual intercourse with her. That testimony is sufficient to raise triable issues of fact whether Downen subjected plaintiff to sexual intercourse without her consent or, even if Downen engaged only in oral sexual conduct with plaintiff, whether plaintiff was unable to consent to such conduct by reason of being physically helpless.

We reject the court's determination that plaintiff's claim that she was physically helpless "is incompatible with plaintiff actively providing oral sex" to any of the coworkers. As a preliminary matter, the court's finding that plaintiff actively participated in sexual activity improperly assumes the truth of the coworkers' testimony, which is disputed by plaintiff, who has no such recollection (see Gonzalez v McCarver, 206 AD3d 1584, 1585 [4th Dept 2022]). Further, one need not be comatose or unconscious to be unable to consent due to being physically helpless. A conscious person may be physically helpless if "physically unable to communicate unwillingness to an act" (Penal Law § 130.00 [7]), and an issue of fact exists here whether plaintiff was unable to consent on that ground.

We also reject the court's determination that plaintiff provided no evidence of having been drugged. Although plaintiff did not see anyone tamper with her drink, her testimony about the feelings she experienced after arriving at the apartment is sufficient to raise an issue of fact whether she was drugged (see Fineberg v Anain, 196 AD3d 1138, 1139 [4th Dept 2021]). According to plaintiff, she felt fine before arriving at the apartment and became dizzy and disoriented shortly after drinking shots of alcohol prepared by one or more of her coworkers. Requiring plaintiff to provide direct evidence that she

had been drugged fails to consider the inherently surreptitious nature of the crime.

Plaintiff further contends in appeal No. 3 that the court erred in granting Manno's motion with respect to the first, second, and fourth causes of action, which assert claims against him under the NYSHRL for sexual harassment and gender discrimination, unlawful retaliation, and hostile work environment. We agree that the court erred in granting the motion with respect to [*3]the first and second causes of action and that part of the fourth cause of action alleging the existence of a hostile work environment after January 15, 2017, and we therefore further modify the order in appeal No. 3 accordingly. A plaintiff's NYSHRL claims are sustainable against a sole owner as an employer when the owner was a perpetrator of the discriminatory conduct (see Matter of Sortie Marble & Granite, Inc. v Imperial, 222 AD3d 1407, 1408 [4th Dept 2023]; Matter of El Agave Mexican Grill, Inc. v New York State Div. of Human Rights, 192 AD3d 1565, 1566-1567 [4th Dept 2021]; see also Patrowich v Chemical Bank, 63 NY2d 541, 542 [1984]). Here, it is undisputed that Manno is the owner of Soho Buffalo, plaintiff's corporate employer. Because Manno was directly involved in the alleged conduct that forms the basis of plaintiff's discrimination, retaliation, and hostile workplace causes of action, plaintiff may assert substantive NYSHRL causes of action against him.

Plaintiff contends that the court also erred in granting that part of Rydzik's motion with respect to the fifth cause of action, which alleged that he aided and abetted the NYSHRL violations. We agree, and we therefore further modify the order in appeal No. 3 accordingly. Assuming, arguendo, that Rydzik met his initial burden, upon viewing the facts in the light most favorable to plaintiff, the nonmoving party, we conclude that plaintiff raised triable issues of fact in opposition. Plaintiff's discrimination and hostile work environment claims are based, in part, on Rydzik's conduct as a manager for Soho Buffalo after plaintiff allegedly informed him that she was raped by her coworkers. Specifically, plaintiff alleged that Rydzik was dismissive of her complaint and failed to discipline Downen, Jankowski, and King. Rydzik also continued to schedule plaintiff to work with her three alleged assailants. Thus, although Rydzik was not plaintiff's employer, there are triable issues of fact whether Rydzik, as plaintiff's supervisor, "actually participate[d]" in the conduct giving rise to the alleged NYSHRL violation, rendering him liable for aiding and abetting (Mahoney v City of Albany, 211 AD3d 1408, 1411 [3d Dept 2022]).

We have reviewed plaintiff's remaining contentions in appeal No. 3 and conclude that they lack merit.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court