A.M.P. v. Benjamin

201 A.D.3d 50

158 N.Y.S.3d 337

A.M.P., Respondent,

v.Ronald R. BENJAMIN et al., Appellants.

532497

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 19, 2021

Decided and Entered: November 24, 2021

Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for appellants.

Costello, Cooney & Fearon, PPLC, Syracuse (Daniel R. Rose of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark and Colangelo, JJ.

OPINION AND ORDER

Clark, J. Appeal from an order of the Supreme Court (Rich Jr., J.), entered October 23, 2020 in Broome County, which, among other things, partially denied defendants’ motion to, among other things, dismiss certain causes of action in the amended complaint.

In 2016, plaintiff hired defendant Ronald R. Benjamin, an attorney, to represent her in connection with matrimonial and custody matters, signing a retainer agreement with defendant The Law Office of Ronald R. Benjamin (hereinafter referred to as the Law Office). In November 2019, sometime after defendants ceased representing her, plaintiff commenced this action, asserting various causes of action arising out of defendants’ alleged legal malpractice and Benjamin's alleged sexual misconduct. Prior to answering, defendants moved to dismiss certain claims on the ground that they failed to state a cause of action, were barred by the statute of limitations and/or were contradicted by documentary evidence. Defendants also moved for an order amending the caption to state plaintiff's "true name" or, alternatively, permitting them to proceed anonymously, as well as an order removing the Law Office as a party to the action. In an order and amended order entered in May 2020, Supreme Court struck certain causes of action as duplicative or barred by the statute of limitations, but granted plaintiff leave to amend some of those claims within 30 days and otherwise denied defendants’ motion. Defendants filed a notice of appeal from the May 2020 order and amended order, but did not ultimately perfect their appeal.

Plaintiff thereafter filed an amended complaint in which she asserted causes of action for, among other things, sexual assault, battery and harassment (first cause of action), violations of Civil Rights Law § 79–n (second through fifth causes of action), legal malpractice (sixth and seventh causes of action), breach of fiduciary duties (eighth cause of action), negligence (ninth cause of action), negligent infliction of emotional distress (tenth cause of action), gross negligence (eleventh cause of action), a violation of Judiciary Law § 487 (thirteenth cause of action), punitive damages (fourteenth cause of action) and vicarious liability (fifteenth cause of action). Defendants moved to dismiss the second, third, fourth, fifth, eighth, ninth, tenth, eleventh, fourteenth and fifteenth causes of action in full, and the seventh and thirteenth causes of action in part, arguing that they failed to state a cause of action, were time-barred and/or were refuted by documentary evidence. In addition, defendants once again sought to amend the caption to state plaintiff's "true name" or, alternatively, to allow defendants to proceed anonymously, as well as an order removing the Law Office as a party. Plaintiff opposed the motion and cross-moved for an order sealing certain exhibits that defendants had annexed to their motion and sanctioning defendants for bringing a frivolous motion. In an order entered in October 2020, Supreme Court granted defendants’ motion to the extent of dismissing plaintiff's second, fifth, ninth, eleventh and fourteenth causes of action and striking certain paragraphs of plaintiff's seventh cause of action, but otherwise denied the motion.¹ Additionally, Supreme Court granted plaintiff's cross motion to the extent of sealing those motion exhibits that identified plaintiff, but otherwise denied the cross motion. Defendants appeal.

We first address defendants’ contention that plaintiff's third and fourth causes of action, which allege violations of Civil Rights Law § 79–n, should have been dismissed pursuant to CPLR 3211(a)(7) for failure to state a claim. "When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must ‘give the complaint a liberal construction, accept the allegations as true and provide [the] plaintiff[ ] with the benefit of every favorable inference’ " ( Nomura Home Equity Loan, Inc., Series 2006–FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 582, 69 N.Y.S.3d 520, 92 N.E.3d 743 [2017], quoting Roni LLC v. Arfa, 18 N.Y.3d 846, 848, 939 N.Y.S.2d 746, 963 N.E.2d 123 [2011] ). "Such favorable treatment, however, ‘is not limitless’ " ( Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018], quoting Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089, 1090, 949 N.Y.S.2d 535 [2012] ), and dismissal of the complaint will be warranted where "the plaintiff fails to assert facts in support of an element of the claim" ( Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] ).

As relevant here, Civil Rights Law § 79–n (2), entitled "[b]ias-related violence or intimidation; civil remedy," provides that "[a]ny person who intentionally selects a person ... for harm or ... causes physical injury ... to another ... in whole or in substantial part because of a belief or perception regarding the ... gender ... of a person, regardless of whether the belief or perception is correct, shall be liable, in a civil action or proceeding maintained by such individual or group of individuals, for injunctive relief, damages, or any other appropriate relief in law or equity." Under the statute, "[t]he term ‘gender’ means a person's actual or perceived sex and shall include a person's gender identity or expression" ( Civil Rights Law § 79–n [1][d] ). Although state courts have had little opportunity to interpret Civil Rights Law § 79–n, the legislative history suggests that, to recover under the statute, the plaintiff must demonstrate "actual or imminent physical harm" resulting from bias-related violence or intimidation (Governor's Approval Mem, Bill Jacket, L 2010, ch 227, at 3).

In her third cause of action, labeled "Gender–Biased Verbal Assault, Battery and Harassment, Civil Rights Law § 79–n," plaintiff alleges that Benjamin repeatedly subjected her to "cruel, unprovoked and unjustified verbal abuse, assault, battery and harassment," that such conduct was "motivated, at least in part, by" Benjamin's bias toward women, that Benjamin "regularly and consistently conducts himself in the same or similar manner toward" women and that plaintiff has suffered, among other things, physical harm as a result of Benjamin's bias-related conduct. Although plaintiff does not specifically detail Benjamin's bias-related conduct within the third cause of action, the facts alleged earlier in the complaint, which are incorporated by reference under the third cause of action, are replete with allegations that Benjamin forcibly subjected plaintiff to nonconsensual sexual contact, including one occasion when Benjamin forced plaintiff to perform oral sex on him and at least two occasions when he forcibly touched plaintiff's genitals. In our view, the allegations of forcible, nonconsensual contact, together with plaintiff's allegation that such conduct was motivated by Benjamin's gender bias, could, if proven, demonstrate the bias-related violence or intimidation required to recover under Civil Rights Law § 79–n (see generally Breest v. Haggis, 180 A.D.3d 83, 94, 115 N.Y.S.3d 322 [2019] ). Thus, according the complaint a liberal construction, accepting plaintiff's allegations as true and providing her the benefit of every favorable inference, we find that plaintiff has stated a claim under her third cause of action (see Civil Rights Law § 79–n [2] ).

We, however, reach an opposite conclusion with respect to plaintiff's fourth cause of action, labeled "Sexual Harassment, Civil Rights Law § 79–n." Read liberally, that cause of action fails to allege that, through his harassing conduct, Benjamin intentionally injured her based upon a perception or belief about her gender (see Civil Rights Law § 79–n [2] ). Accordingly, Supreme Court should have dismissed plaintiff's fourth cause of action.

Next, we reject defendants’ contention that plaintiff's third cause of action ("Gender–Biased Verbal Assault, Battery and Harassment, Civil Rights Law § 79–n") is subject to the one-year statute of limitations in CPLR 215(3), applicable to the intentional torts of assault and battery, and that the claim is therefore untimely. As set forth in CPLR 214(2), a three-year statute of limitations period applies to "an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in [CPLR] 213 and 215." The limitations period in CPLR 214(2) applies to "claims which, although akin to common-law causes, would not exist but for the statute" ( Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 220–221, 652 N.Y.S.2d 584, 674 N.E.2d 1349 [1996] ; see Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 173–174, 501 N.Y.S.2d 313, 492 N.E.2d 386 [1986] ). However, where a statute merely codifies or implements a liability existing at common law, CPLR 214(2) does not apply and instead the statute of limitations period for the common-law claim applies (see Gaidon v. Guardian Life Ins. Co. of Am., 96 N.Y.2d 201, 208, 727 N.Y.S.2d 30, 750 N.E.2d 1078 [2001] ; Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d at 174, 501 N.Y.S.2d 313, 492 N.E.2d 386 ).

Here, although plaintiff's third cause of action is akin to common-law assault and battery claims, plaintiff's claim of bias-related violence or intimidation would not exist but for Civil Rights Law § 79–n (2). To recover under...