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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
VE,
 Plaintiff,
 v.
 DARREN K. INDYKE AND RICHARD D.
KAHN, AS JOINT PERSONAL
REPRESENTATIVES OF THE ESTATE OF
JEFFREY E. EPSTEIN, NINE EAST 71st
STREET, CORPORATION, FINANCIAL
TRUST COMPANY, INC., NES, LLC,
 Defendants.
 X

Index No. 1:19-cv-07625-AJN-DCF

## DEFENDANTS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022
Tel: 212-704-6000
Fax: 212-704-6288

Attorneys for Defendants

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## TABLE OF CONTENTS

## Page(s)

| PRELIMINARY STATEMENT   | PRELIMINARY STATEMENT                                                                                                                                                                                         | 1   |
|-|-|-|
| I                       | ARGUMENT.                                                                                                                                                                                                     | 2   |
| a.                      | Plaintiff fails to point to alleged facts supporting her recitations of<br />elements of causes of action against the Corporate Defendants—there are<br />none.                                               | 2   |
| b.                      | CPLR § 215(8)(a) does not revive Plaintiff's battery claims that expired<br />over a decade ago because the referenced criminal indictment did not arise<br />from Decedent's alleged battery of Plaintiff... | 7   |
| C.                      | New York Law applies to Plaintiff's claim for punitive damages because<br />she alleges the subject torts took place in New York.                                                                             | 10  |
| CONCLUSION.             |                                                                                                                                                                                                               | 10  |

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# TABLE OF AUTHORITIES

## Page(s)

| Cases                                                                                                                                                 | Cases       |
|-|-|
| Arista Records, LLC v. Doe 3,<br />604 F.3d 110 (2d Cir. 2010)..                                                                                      | .4          |
| Ashcroft v. Iqbal,<br />556 U.S. 662 (2009)..                                                                                                         | .1, 7       |
| Backiel v. Citibank, N.A.,<br />299 A.D.2d 504 (1st Dept. 2002)..                                                                                     |             |
| Bell Atl. Corp. v. Twombly,<br />550 U.S. 544 556 (2007)                                                                                              | .1, 4, 6, 7 |
| Blatt v. L'Pogee, Inc.,<br />112 A.D.3d 869 (1st Dept. 2013)..                                                                                        | 5           |
| Brothers v. N.Y. State Elec. & Gas Corp.,<br />11 N.Y.3d 251 (2008).                                                                                  |             |
| Bumpus v. N.Y.C. Transit Auth.,<br />47 A.D.3d 653 (2nd Dept. 2008).                                                                                  | .6          |
| Cal Distrib. Inc. Cadbury Schweppes Ams. Bevs., Inc., No. 06, Civ. 0496<br />(RMB)(JCF) 2007 U.S. Dist. LEXIS 854, at *20-21 (S.D.N.Y. Jan. 5, 2007). | .2          |
| Christodoulou v. Terdeman,<br />262 AD2d 595 (2d Dept. 1999)                                                                                          | .8,9        |
| Citizens United v. Schneiderman,<br />882 F.3d 374 (2d Cir. 2018)..                                                                                   | .4          |
| Deutsch v. Novartis Pharms. Corp.,<br />723 F. Supp. 2d 521 (E.D.N.Y. 2010).                                                                          | .10         |
| Gallina v. Thatcher,<br />No. 2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct.<br />23, 2018)                                     | .8, 9, 10   |
| Gilford v. NYS Office of Mental Health,<br />No. 17-CV-8033 (JPO), 2019 U.S. Dist. LEXIS 38450 (S.D.N.Y. Mar. 11,<br />2019).                         | .3          |
| Guidi v. Inter-Continental Hotels Corp.,<br />No. 95-CV-9006, 2003 U.S. Dist. LEXIS 6390 (S.D.N.Y. Apr. 16, 2003).                                    | .10         |

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## TABLE OF AUTHORITIES

# (continued)

## Page

| Horowitz v. 763 E. Assocs.,<br />LLC, 125 A.D.3d 808 (1st Dept. 2015).                                                                                 |    |
|-|-|
| Hudak v. Berkley Grp., Inc.,<br />No. 3:13-cv-00089-WWE, 2014 U.S. Dist. LEXIS 8168 (D. Conn. Jan. 23,<br />2014).                                     | .7 |
| I.B. Trading, Inc. v. Tripoint Glob. Equities,<br />LLC, No. 17-CV-1962 (JGK), 2017 WL 5485318 (S.D.N.Y. Nov. 15, 2017)                                | .7 |
| Judith M. v. Sisters of Charity Hosp.,<br />93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999).                                                      | .5 |
| Kirkman by Kirkman v. Astoria Gen. Hosp.,<br />204 A.D.2d 401 (2d. Dept. 1994)                                                                         | .6 |
| Krystal G. v. Roman Catholic Diocese of Brooklyn,<br />933 N.Y.S.2d 515 (Sup. Ct. Kings Cnty. 2011).                                                   | .6 |
| Ludwig's Drug Store, Inc. v. Forest City Enters.,<br />No. 13-CV-6045, 2016 U.S. Dist. LEXIS 28038, at *14 (E.D.N.Y. Mar. 4,<br />2016)                |    |
| McElligott v. City of N.Y.,<br />15-cv-7107 (LGS), 2017 U.S. Dist. LEXIS 201829 (S.D.N.Y. Dec. 7, 2017).                                               | .8 |
| Mills v. Polar Molecular Corp.,<br />12 F.3d 1170 (2d Cir. 1993).                                                                                      | .7 |
| N. X. v. Cabrini Med. Ctr.,<br />97 N.Y.2d 247 (2002)                                                                                                  |    |
| Nallan v. Helmsley-Spear, Inc.,<br />50 N.Y.2d 507 (1980).                                                                                             | .7 |
| Perez v. Int'l Bhd. of Teamsters, AFL-CIO,<br />No. 00 Civ. 1983 (LAP(JCF) 2002 U.S. Dist. LEXIS 16985 (S.D.N.Y. Sept.<br />11, 2002).                 | 2  |
| Precision Assocs. v. Panalpina World Transp. (Holding) Ltd.,<br />No. CV-08-42 (JG) (VVP), 2013 U.S. Dist. LEXIS 177023 (E.D.N.Y. Sep.<br />20, 2013). | 7  |

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## TABLE OF AUTHORITIES

# (continued)

## Page

Provenzano v. Roslyn Gardens Tenants Corp.,
190 A.D.2d 718 (2nd Dept. 1993) .......................................................................7

Ronessa H. v. City of N.Y.,
101 A.D.3d 947 (2nd Dept. 2012) .......................................................................6

Rosenberg v. Equitable Life Assurance Soc’y,
79 N.Y.2d 663 (1992) .....................................................................................5

Starr Indem. & Liab. Co. v. Am. Claims Mgmt.,
14-cv-0463-JMF, 2015 U.S. Dist. LEXIS 60272 (S.D.N.Y. May 7, 2015) ..............10

Tardibuono-Quigley v. HSBC Mortg. Corp. (USA),
No. 15-CV-6940 (KMK), 2017 U.S. Dist. LEXIS 47982 (S.D.N.Y. Mar. 30,
2017) ............................................................................................................6

Wright v. Ernst & Young LLP ,
152 F.3d 169 (2d Cir. 1998)..........................................................................1

## Other Authorities

CPLR § 215(8)(a) ......................................................................................... 2, 7, 8, 9, 10
Fed. R. Civ. P. 8............................................................................................. 7
Fed. R. Civ. P. 12(b)(6).............................................................................. 1

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Defendants Darren K. Indyke and Richard D. Kahn, Co-Executors of the Estate of Jeffrey E. Epstein (the “Estate”), Nine East 71st Street, Corporation (“Nine East”), Financial Trust Company, Inc. (“FTC”), and NES, LLC (“NES”, and together with Nine East and FTC, the “Corporate Defendants”; and the Corporate Defendants together with the Estate, the “Defendants”), through their undersigned counsel, respectfully submit this Reply Memorandum of Law in Support of their Motion to Dismiss Plaintiff VE’s (“Plaintiff”) First Amended Complaint 1 (the “Amended Complaint”) (ECF Doc. # 3)2 with prejudice pursuant to Fed. R. Civ. P. 12(b)(6).

## PRELIMINARY STATEMENT

Plaintiff’s arguments in her Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Opposition Brief”) are entirely circular and thus unconvincing. Specifically, in her Opposition Brief, Plaintiff responds to Defendants’ arguments in support of their Motion to Dismiss the negligence claims against the Corporate Defendants by: (i) referring back to Plaintiff’s allegations comprised of labels and conclusions, formulaic recitations of the negligence causes of action, allegations made “upon information and belief,” and impermissible group pleading; and (ii) then stating, contrary to TwomblyandIqbal3 and Second Circuit decisions applying the former, that such allegations are enough to state claims. Plaintiff has therefore failed to address the specific pleading deficiencies raised by Defendants.

Plaintiff also inappropriately attempts in her Opposition Brief to restate – i.e., effectively amend – her allegations in her Amended Complaint. Such assertions are not entitled to any weight on this Motion. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (“a

1 Plaintiff amended her Complaint before completing service on Defendants.

2 A copy of Plaintiff’s Amended Complaint is attached as Exhibit A to the Declaration of Bennet J. Moskowitz (ECF Doc. # 37) submitted with Defendants’ moving brief (ECF Doc. # 38).

3 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 - 556 (2007).

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party is not entitled to amend its complaint through statements made in motion papers”). See also Cal Distrib. Inc. Cadbury Schweppes Ams. Bevs., Inc. , No. 06 Civ. 0496 (RMB) (JCF), 2007 U.S. Dist. LEXIS 854, at *20-21 (S.D.N.Y. Jan. 5, 2007); Perez v. Int’l Bhd. of Teamsters, AFL CIO, No. 00 Civ. 1983 (LAP) (JCF), 2002 U.S. Dist. LEXIS 16985, at *11 (S.D.N.Y. Sept. 11, 2002).

Separately, Plaintiff’s reliance on CPLR § 215(8)(a), which is a narrow New York rule applicable only where – unlike here – civil and criminal actions arise from the same discrete events, is completely misplaced. As explained in further detail below, the criminal indictment Plaintiff relies on clearly does not arise from the alleged 2001 sexual battery of Plaintiff.

Plaintiff also fails to deny that her claim for punitive damages is barred under New York law. Plaintiff’s argument that USVI law should apply to this issue is wrong. New York law holds that the law of the place of the alleged torts – here, New York – applies to the issue of the availability of punitive damages.

## I. ARGUMENT

a. Plaintiff fails to point to alleged facts supporting her recitations of elements of causes of action against the Corporate Defendants—there are none. As fully explained in Defendants’ Memorandum of Law in Support of their Motion to Dismiss (“Moving Brief”) (ECF #38), with numerous citations to Plaintiff’s Complaint, Plaintiff, among other things: (i) does not allege any facts establishing Nine East, FTC or NES owed her a duty, how those entities breached any such duty or how any such breach caused Plaintiff’s alleged damages; (ii) alleges her “friend,” not someone acting on behalf of any of the Corporate Defendants, caused Plaintiff to visit the real property owned by Nine East where the alleged torts occurred (Compl. ¶¶ 47, 51-61); (iii) alleges the “opulence of the mansion [owned by Nine East]… facilitated [Plaintiff’s] further cooperation with Decedent” (Id. ¶ 63), not that anyone

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acting on the Corporate Defendants’ behalf caused such facilitation; (iv) alleges the sexual assaults occurred “during the course and scope of [Decedent’s] employment for [FTC]” (Compl. ¶ 111) without asserting factual allegations as to how or why that was the case; (v) alleges the torts took place on Nine East’s property, not on any property owned by FTC or NES; however, Plaintiff does not allege any factsshowing FTC knew or should have known Decedent’s propensity for the conduct that allegedly caused Plaintiff’s injuries; and (vi) engages in impermissible group pleading.

In response, Plaintiff again recites the elements of her negligence causes of action, often without even citing to her own allegations (see, e.g. , Opp. Br. p. 7 (“As the property owner, Defendant Nine East had a non-delegable duty to maintain the premises in a reasonably safe condition.”; p. 9 “As [Decedent’s] employer, [FTC] had a duty to exercise reasonable care to refrain from retaining in its employ a person with known dangerous propensities in a position that would present a foreseeable risk of harm to others.”). Plaintiff misses the point. Plaintiff failed to allege factssupporting these and other conclusory assertions. Moreover, Plaintiff’s claim that she “has not engaged in group pleading” (Opp. Br. p. 5) is clearly incorrect. ( See, e.g., Compl. ¶¶ 23, 37-44, 62-63.)

Plaintiff now argues, but fails to allege in her Complaint, that she is permitted to rely on her numerous allegations made “upon information and belief” because facts, which Plaintiff does not identify, are peculiarly within the Corporate Defendants’ possession (Opp. Br. [ECF #45] p. 10). Plaintiff’s new theory is unconvincing for at least two reasons.

First, Plaintiff ignores the principle, cited in the Moving Brief, that “[n]o matter what the pleading standard is, her complaint must at least contain enough factual allegations that are not made upon information and belief to ‘raise a right to relief above the speculative level.’” Gilford

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v. NYS Office of Mental Health, No. 17-CV-8033 (JPO), 2019 U.S. Dist. LEXIS 38450, at *14 (S.D.N.Y. Mar. 11, 2019) (citing Twombly , 550 U.S. at 555). Plaintiff’s Complaint does not contain enough factual allegations not made “upon information and belief” to state claims against the Corporate Defendants.

Second, Plaintiff’s reliance on Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), to support her new argument is misplaced. The Second Circuit recently reaffirmed that the principle set forth in Arista does not grant plaintiffs license to “merely plop ‘upon information and belief’ in front of a conclusory allegation and thereby render it non-conclusory.” Citizens United v. Schneiderman, 882 F.3d 374, 385 (2d Cir. 2018). However, that is exactly what Plaintiff did in this action—she plopped “upon information and belief” in front of numerous conclusory allegations against the Corporate Defendants.

Moreover, the principle set forth in Arista does not apply where, as here, a plaintiff fails to explain why facts not alleged in her complaint are “peculiarly within [Defendants’] possession.” See Rothbein v. City of N.Y., No. 18-CV-5106 (VEC), 2019 U.S. Dist. LEXIS 32358, at *29-30 (S.D.N.Y. Feb. 28, 2019) (court had “no basis from which to infer Plaintiff’s belief … is anything more ‘than pure speculation’” where plaintiff failed to explain why information not alleged in her complaint was peculiarly within defendants’ possession and control (quoting Ludwig's Drug Store, Inc. v. Forest City Enters., No. 13-CV-6045, 2016 U.S. Dist. LEXIS 28038, at *14 (E.D.N.Y. Mar. 4, 2016))).

Plaintiff’s lists of allegations against FTC and NES (Opp. Br. pp. 9-10 and 11-12, respectively) merely repeat her allegations stated within Counts II and III of her Complaint. However, those allegations merely are a recitation of the elements of the asserted negligence

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causes of action. Plaintiff ignores that she failed to allege in her Complaint any factssupporting these recitations.

To the extent Plaintiff now suggests FTC is somehow vicariously liable for Decedent’s alleged sexual assaults of Plaintiff (Opp. Br. p. 7), Plaintiff is wrong as a matter of law. An employer is not liable for an employee’s acts where the employee departs from her duties for solely personal motives unrelated to the furtherance of the employer’s business. See, e.g., N. X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002) (“A sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives” (citing Judith M. v. Sisters of Charity Hosp. , 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999))).4

The issues in the cases cited by Plaintiff to support this new vicarious liability theory are factually and procedurally distinguishable from this matter and thus have no bearing here. See Horowitz v. 763 E. Assocs., LLC, 125 A.D.3d 808, 809 (1st Dept. 2015) (appeal from summary judgment order in action brought by plaintiff, who allegedly fell through glass panel at building, against building’s owner and manager); Rosenberg v. Equitable Life Assurance Soc’y, 79 N.Y.2d 663, 666 (1992) (appeal from Appellate Division order on judgment upon verdict in wrongful death action arising from cardiac failure resulting from EKG ordered by defendant).

The state court cases Plaintiff relies on to support her negligence claim against FTC are also factually and procedurally inapplicable, otherwise not germane to whether Plaintiff stated a claim under the federal pleading standards (she did not) or do not support of Plaintiff’s positions

4 Plaintiff cites several slip and fall/defective condition cases in which employees and independent contractors sued their employers. See Backiel v. Citibank, N.A., 299 A.D.2d 504, 504 (1st Dept. 2002) (office cleaner slipped and fell after exiting building owned by defendant); Brothers v. N.Y. State Elec. & Gas Corp., 11 N.Y.3d 251, 255 (2008) (construction worker injured on jobsite); Blatt v. L’Pogee, Inc., 112 A.D.3d 869, 869 (1st Dept. 2013) (salesperson allegedly tripped and fell on hazardous condition created by another salesperson). Such fact patters have nothing to do with the issues in this action in which Plaintiff alleges various corporate entities are somehow liable to her because Decedent allegedly sexually assaulted Plaintiff at Decedent’s residence.

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on this Motion. See Ronessa H. v. City of N.Y., 101 A.D.3d 947 (2nd Dept. 2012) (Appellate Division reversed the Supreme Court’s denial of motion after trial and dismissed plaintiff’s negligent supervision claim); Bumpus v. N.Y.C. Transit Auth., 47 A.D.3d 653 (2nd Dept. 2008) (short form decision that provides no details concerning which of plaintiff’s allegations the court deemed sufficient to state a claim); Kirkman by Kirkman v. Astoria Gen. Hosp. , 204 A.D.2d 401, 402 (2d. Dept. 1994) (reaffirming the well-established legal principle, advocated by Defendants here, that “there is no vicarious liability on the part of the employer for torts committed by the employee solely for personal motives unrelated to the furtherance of the employers' business.” (citations omitted)); Krystal G. v. Roman Catholic Diocese of Brooklyn, 933 N.Y.S.2d 515, 523 (Sup. Ct. Kings Cnty. 2011) (court found plaintiff stated negligent supervision claim because, unlike Plaintiff here, the former specifically alleged what a defendant pastor did that showed he knew or should have known of assistant pastor’s propensity to commit sexual abuse).

Plaintiff’s assertions that Plaintiff “need not explain the details of each defendant’s role in the planning, funding and executing of defendants’ alleged joint [] scheme” (Opp. Br. 5), and that “Defendant [sic] argues that the law does not impose a duty to control the conduct of third persons to prevent them from harming others” (Opp. Br. 7), are straw man arguments.

Defendants are not making these arguments. Nor are these the relevant issues on this Motion.

Rather, the issue here is whether Plaintiff has alleged “enough facts” to state plausible negligence claims against any of the Corporate Defendants. Twombly, 550 U.S. at 570. Plaintiff has failed to do so.

The cases Plaintiff cites to support these straw man arguments are factually and/or procedurally distinguishable and thus present irrelevant issues.5 Other case law on which

5 See Tardibuono-Quigley v. HSBC Mortg. Corp. (USA) , No. 15-CV-6940 (KMK), 2017 U.S. Dist. LEXIS 47982, at

*23 (S.D.N.Y. Mar. 30, 2017) (finding amended complaint provided enough information to put a party on notice of

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Plaintiff relies to salvage her negligence claims against the Corporate Defendants stands for uncontroversial principles not in dispute ( e.g., what the pleadings standards are, which is not in dispute, versus whether Plaintiff satisfied the standards, which is disputed). 6

## b. CPLR § 215(8)(a) does not revive Plaintiff’s battery claims that expired over a decade ago because the referenced criminal indictment did not arise from Decedent’s alleged battery of Plaintiff.

Plaintiff argues in her Opposition Brief that, if the New York Child Victims Act is declared unconstitutional, Plaintiff should nevertheless be permitted to pursue her first of two duplicative battery claims because it would be timely under CPLR § 215(8)(a). However, CPLR § 215(8)(a) is not applicable to this lawsuit.

CPLR § 215(8)(a) provides:

Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining. (emphasis added).

Here, the subject criminal indictment of Decedent (the “Indictment”), which Plaintiff attaches to her Amended Complaint, was not commenced with respect to the battery of Plaintiff

its alleged role in servicing plaintiff’s mortgage); Precision Assocs. v. Panalpina World Transp., (Holding) Ltd., No. CV-08-42 (JG) (VVP), 2013 U.S. Dist. LEXIS 177023 (E.D.N.Y. Sep. 20, 2013), at *61 adopted by 2014 U.S. Dist. LEXIS 10345 (E.D.N.Y. Jan. 28, 2014) (finding complaint included “significant detail” establishing antitrust misconduct involved knowledge and participation of corporate families); Hudak v. Berkley Grp., Inc., No. 3:13-cv00089-WWE, 2014 U.S. Dist. LEXIS 8168, at *10-11 (D. Conn. Jan. 23, 2014) (finding FRCP 8 did not prohibit plaintiff from collectively referring to multiple defendants in TCPA action alleging defendants engaged in robocalling);Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 518 (1980) (plaintiff shot by unknown assailant at publicly accessible lobby of defendants’ building); Provenzano v. Roslyn Gardens Tenants Corp., 190 A.D.2d 718, (2nd Dept. 1993) (Appellate Division reversed trial court order and dismissed vicarious liability claims against defendants).

6 See, e.g., Opp. Br. pp. 3 (citing Iqbal; Twombly; I.B. Trading, Inc. v. Tripoint Glob. Equities , LLC, No. 17-CV1962 (JGK), 2017 WL 5485318, at *1 (S.D.N.Y. Nov. 15, 2017); and Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993), to support generic assertions regarding pleadings standards), 6 (citing the same cases Defendants cite in their Moving Brief to set forth the elements of a negligent security claim).

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alleged in her Amended Complaint. Indeed, Plaintiff does not allege she was one of the victims referenced in the Indictment.

Nor could Plaintiff credibly assert she was one of the victims referenced in the Indictment. The Indictment describes acts and occurrences in 2002 – 2005 related to three specific victims. Plaintiff alleges torts predating that period.

Plaintiff’s reliance on her allegation that she “was subjected to the types of illegal sexual acts detailed in the [Indictment]” (Compl. ¶ 44 (emphasis added)) is unconvincing for at least two reasons. First, the statements in the Indictment showing it did not arise from Decedent’s alleged battery of Plaintiff, and not Plaintiff’s allegation characterizing the Indictment, are controlling.

Second, even assuming Plaintiff’s allegation is true, it merely suggests that she was also victim of Decedent. However, Plaintiff does not, either in this allegation or elsewhere in her Amended Complaint, claim she was a victim of the occurrences charged in the Indictment.

New York courts have found that CPLR § 215(8)(a) was inapplicable in circumstances where the subject civil action had a much clearer and closer nexus to a criminal action than the relationship Plaintiff has attempted to create here between this action and the Indictment. See Christodoulou v. Terdeman, 262 AD2d 595, 596 (2d Dept. 1999) (“Contrary to the arguments advanced by the plaintiff, [CPLR § 215(8)(a)] applies only to those claims which are based on the events of February 26, 1993 and December 28, 1993, because it was only in connection with the events of these two days that a criminal prosecution was commenced against the defendant”); Gallina v. Thatcher, No. 2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct. 23, 2018) (finding CPLR § 215(8)(a) inapplicable where incidents charged in criminal action and those alleged in civil action occurred on different dates). Cf. McElligott v. City of

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N.Y., 15-cv-7107 (LGS), 2017 U.S. Dist. LEXIS 201829, at *13 (S.D.N.Y. Dec. 7, 2017) (finding CPLR § 215(8)(a) was inapplicable to claims against civil defendants who were not charged as co-defendants in criminal action brought against another civil defendant, notwithstanding the same events gave rise both actions).

Gallinais especially instructive on this issue. In Gallina, an individual sued an attorney for battery and other claims based on the core allegation that, over the course of two years, the attorney committed various acts of sexual misconduct against the plaintiff including sexual assaultId. at *1. It was uncontested that defendant had also been criminally charged with forceable touching for other incidents that occurred with plaintiff in 2017. Id. at *3. The court dismissed as time barred plaintiff’s battery counts based on incidents alleged to have occurred in 2016. Id. at *2-3.

The court rejected plaintiff’s argument that CPLR § 215(8)(a) applied to the 2016 incidents, finding:

… Plaintiff argues that these 2016 incidents are events or occurrences from which the “criminal action” commenced as to the February, March and May 2017 incidents arose within the meaning of CPLR §215(8)(a). In essence, Plaintiff argues that the July and October 2016 incidents are part of the same ongoing course of events as the February, March and May 2017 incidents and should therefore be deemed timely commenced.

As noted by Defendant, the case law does not support Plaintiff's interpretation of the tolling provision of CPLR §215(8)(a). The criminal instruments provided by Plaintiff in opposition to Defendant's motion demonstrate that Defendant was charged for incidents occurring on three (3) specific dates — February 17, 2017, March 24, 2017 and May 16, 2017. Pursuant to CPLR §215(8)(a), tolling would apply only to claims based on these dates, "because it was only in connection with the events of these [three] days that a criminal prosecution was commenced against the defendant." Christodoulou v. Terdeman , 262 AD2d 595, 596 [2d Dept. 1999]. As criminal charges were not commenced with respect to the July 2016 and October 2016 events, the tolling provisions of CPLR §215(8) do not apply to the First, Second, Third and Fourth Causes of Action. Accordingly, those Causes of Action are time-barred.

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Id. at *3-4.

Here, Plaintiff asserts a much weaker connection between this action and the Indictment than the one unsuccessfully asserted by the plaintiff in Gallina. Therefore, the Court should reject Plaintiff’s argument for the application of CPLR § 215(8)(a).

## c. New York Law applies to Plaintiff’s claim for punitive damages because she alleges the subject torts took place in New York.

Plaintiff does not dispute that New York law bars her claim for punitive damages as a matter of law. Instead, Plaintiff erroneously asserts that USVI law applies to this issue without citing any legal authority to support that argument.7

Plaintiff alleges the acts and omissions giving rise to her causes of action occurred in New York (Compl. ¶¶ 15, 22). Therefore, New York law applies to the issue of punitive damages.See Starr Indem. & Liab. Co. v. Am. Claims Mgmt. , 14-cv-0463-JMF, 2015 U.S. Dist. LEXIS 60272, *7 (S.D.N.Y. May 7, 2015) (“Because punitive damages are conduct-regulating, ‘the law of the jurisdiction where the tort occurred will generally apply.’”) (quoting Deutsch v. Novartis Pharms. Corp. , 723 F. Supp. 2d 521, 524 (E.D.N.Y. 2010); Guidi v. Inter-Continental Hotels Corp. , No. 95-CV-9006, 2003 U.S. Dist. LEXIS 6390, at *1 (S.D.N.Y. Apr. 16, 2003)).8

## CONCLUSION

Based on the foregoing and the reasons set forth in Defendants’ Moving Brief, Defendants respectfully request that the Court grant their Motion to Dismiss in its entirety together with such other and further relief as the Court deems just and proper.

7 Nor does Plaintiff argue USVI law permits punitive damages against a decedent tortfeasor.

8 Plaintiff’s reliance on Doralee Estates, Inc. v. Cities Serv. Oil Co., 569 F.2d 716 (2d Cir. 1977), to support the assertion that sex trafficking “is exactly the type of act for which punitive damages are permitted” (Opp. Br. 12), is baseless. Doralee has nothing to do with sex trafficking—it concerns an oil spill. Nor does Doralee involve claims against a decedent tortfeasor.

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40918662v1

Case 1:19-cv-07625-AJN-DCF

Document 49

Filed 01/02/20

Page 16 of 16

Dated: New York, New York
January 2, 2020

Respectfully submitted,

TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022

By:  /s/ Bennet J. Moskowitz
Bennet J. Moskowitz

Attorneys for Defendants

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