{"efta_number": "EFTA02846294", "page_count": 16, "url": "https://epstein-data.com/EFTA02846294", "pdf_url": "https://epstein-data.com/pdf/EFTA02846294.pdf", "pages": [{"efta_number": "EFTA02846294", "page_number": 0, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 1 of 16\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\nX\nVE,\n•\n\n•\n\nPlaintiff,\n\n•\n\n•\n\nv.\n\n•\n\nIndex No. I :19-cv-07625-AJN-DCF\n\nDARREN K. INDYKE AND RICHARD D.\nKAHN, AS JOINT PERSONAL\nREPRESENTATIVES OF THE ESTATE OF\nJEFFREY E. EPSTEIN, NINE EAST 71st\nSTREET, CORPORATION, FINANCIAL\nTRUST COMPANY, INC., NES, LLC,\nDefendants.\nX\n\nDEFENDANTS' REPLY MEMORANDUM OF LAW IN SUPPORT OF\nTHEIR MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT\n\nTROUTMAN SANDERS LLP\n875 Third Avenue\nNew York, New York 10022\nTel: 212-704-6000\nFax: 212-704-6288\nAttorneysfor Defendants\n\n-i40918662vI\n\nEFTA02846294\n\n", "char_count": 665}, {"efta_number": "EFTA02846294", "page_number": 1, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 2 of 16\n\nTABLE OF CONTENTS\nPage(s)\nPRELIMINARY STATEMENT\n\n1\n\nI\n\n2\n\nARGUMENT\na.\n\nb.\n\nc.\n\nPlaintiff fails to point to alleged facts supporting her recitations of\nelements of causes of action against the Corporate Defendants—there are\nnone\n\n2\n\nCPLR § 215(8)(a) does not revive Plaintiff's battery claims that expired\nover a decade ago because the referenced criminal indictment did not arise\nfrom Decedent's alleged battery of Plaintiff\n\n7\n\nNew York Law applies to Plaintiff's claim for punitive damages because\nshe alleges the subject torts took place in New York.\n\n10\n\nCONCLUSION\n\n10\n\n-I40918662v1\n\nEFTA02846295\n\n", "char_count": 674}, {"efta_number": "EFTA02846294", "page_number": 2, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 3 of 16\n\nTABLE OF AUTHORITIES\nPage(s)\nCases\nArista Records, LLC v. Doe 3,\n604 F.3d 110 (24 Cir. 2010)\nAshcroft v. Iqbal,\n556 U.S. 662 (2009)\nBackiel v. Citibank N.A.,\n299 A.D.2d 504 (1st Dept. 2002)\nBell Ad. Corp. v. Twombly,\n550 U.S. 544 - 556 (2007)\n\n4\nI, 7\n5\nI, 4, 6, 7\n\nBlatt v. L'Pogee, Inc.,\n112 A.D.3d 869 (1st Dept. 2013)\n\n5\n\nBrothers v. N.Y. State Elec. & Gas Corp.,\nI I N.Y.3d 251 (2008)\n\n5\n\nBumpus v. N.Y.C. Transit Auth.,\n47 A.D.3d 653 (2nd Dept. 2008)\n\n6\n\nCal Distrib. Inc. Cadbury Schweppes Ants. Bevs., Inc., No. 06, Civ. 0496\n(RMBXJCF) 2007 U.S. Dist. LEXIS 854, at *20-21 (S.D.N.Y. Jan. 5, 2007)\n\n2\n\nChristodoulou v. Terdeman,\n262 AD2d 595 (2d Dept. 1999)\n\n8, 9\n\nCitizens United v. Schneiderman,\n882 F.3d 374 (2d Cir. 2018)\n\n4\n\nDeutsch v. Novartis Phanns. Corp.,\n723 F. Supp. 2d 521 (E.D.N.Y. 2010)\n\n10\n\nGallina v. Thatcher,\nNo. 2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct.\n23, 2018)\n\n8, 9, 10\n\nGilford v. IVYS Office ofMental Health,\nNo. 17-CV-8033 (JPO), 2019 U.S. Dist. LEXIS 38450 (S.D.N.Y. Mar. 11,\n2019)\n\n3\n\nGuidi v. Inter-Continental Hotels Corp.,\nNo. 95-CV-9006, 2003 U.S. Dist. LEXIS 6390 (S.D.N.Y. Apr. 16, 2003)\n\n10\n\n409186620\n\nEFTA02846296\n\n", "char_count": 1256}, {"efta_number": "EFTA02846294", "page_number": 3, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 4 of 16\n\nTABLE OF AUTHORITIES\n(continued)\nPage\nHorowitz v. 763 E. Assocs.,\nLLC, 125 A.D.3d 808 (1st Dept. 2015)\n\n5\n\nHudak v. Berkley Grp., Inc.,\nNo. 3:13-cv-00089-WWE, 2014 U.S. Dist. LEXIS 8168 (D. Conn. Jan. 23,\n2014)\n\n7\n\nLB. Trading, Inc. v. Tripoint Glob. Equities,\nLLC, No. 17-CV-1962 (JGK), 2017 WL 5485318 (S.D.N.Y. Nov. 15, 2017)\n\n7\n\nJudith M. v. Sisters of Charity Hosp.,\n93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999)\n\n5\n\nKirkman by Kirkman v. Astoria Gen. Hosp.,\n204 A.D.2d 401 (2d. Dept. 1994)\n\n6\n\nKrystal G. v. Roman Catholic Diocese of Brooklyn,\n933 N.Y.S.2d 515 (Sup. Ct. Kings Cnty. 2011)\n\n6\n\nLudwig's Drug Store, Inc. v. Forest City Enters.,\nNo. 13-CV-6045, 2016 U.S. Dist. LEXIS 28038, at *14 (E.D.N.Y. Mar. 4,\n2016)\n\n4\n\nMcElligott v. City of N.Y.,\n15-cv-7107 (LGS), 2017 U.S. Dist. LEXIS 201829 (S.D.N.Y. Dec. 7, 2017)\n\n8\n\nMills v. Polar Molecular Corp.,\n12 F.3d 1170 (2d Cir. 1993)\n\n7\n\nN. X. v. Cabrini Med. Ctr.,\n97 N.Y.2d 247 (2002)\n\n5\n\nNallan v. Helmsley-Spear, Inc.,\n50 N.Y.2d 507 (1980)\n\n7\n\nv. Int'l Bled. of Teamsters, AFL-CIO,\nNo. 00 Civ. 1983 (LAP(JCF) 2002 U.S. Dist. LEXIS 16985 (S.D.N.Y. Sept.\n11, 2002)\n\n2\n\nPrecision Assocs. v. Panalpina World Transp. (Holding) Ltd.,\nNo. CV-08-42 (JG) (VVP), 2013 U.S. Dist. LEXIS 177023 (E.D.N.Y. Sep.\n20, 2013)\n\n7\n\n409186620\n\nEFTA02846297\n\n", "char_count": 1376}, {"efta_number": "EFTA02846294", "page_number": 4, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 5 of 16\n\nTABLE OF AUTHORITIES\n(continued)\nPage\nProvenzano v. Roslyn Gardens Tenants Corp.,\n190 A.D.2d 718 (2nd Dept. 1993)\n\n7\n\nRonessa H. v. City ofN.Y.,\n101 A.D.3d 947 (2nd Dept. 2012)\n\n6\n\nv. Equitable Life Assurance Soc'y,\n79 N.Y.2d 663 (1992)\n\n5\n\nStarr Indem. & Liab. Co. v. Am. Claims Mgmt.,\n14-cv-0463-IMF, 2015 U.S. Dist. LEXIS 60272 (S.D.N.Y. May 7, 2015)\n\n10\n\nTardibuono-Quigley v. HSBC Mortg. Corp. (USA),\nNo. 15-CV-6940 (KMK), 2017 U.S. Dist. LEXIS 47982 (S.D.N.Y. Mar. 30,\n2017)\n\n6\n\nv. Ernst & Young LLP,\n152 F.3d 169 (2d Cir. 1998)\n\n1\n\nOther Authorities\nCPLR § 215(8)(a)\n\n2, 7, 8, 9, 10\n\nFed. R. Civ. P. 8\n\n7\n\nFed. R. Civ. P. 12(b)(6)\n\n1\n\n-iv409186620\n\nEFTA02846298\n\n", "char_count": 741}, {"efta_number": "EFTA02846294", "page_number": 5, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 6 of 16\n\nDefendants Darren K. Indyke and Richard D. Kahn, Co-Executors of the Estate of Jeffrey\nE. Epstein (the \"Estate\"), Nine East 71st Street, Corporation (\"Nine East\") Financial Trust\nCompany, Inc. (\"FTC\"), and NES, LLC (\"NES\", and together with Nine East and FTC, the\n\"Corporate Defendants\"; and the Corporate Defendants together with the Estate, the\n\"Defendants\"), through their undersigned counsel, respectfully submit this Reply Memorandum\nof Law in Support of their Motion to Dismiss Plaintiff VE's (\"Plaintiff\") First Amended\nComplaint' (the \"Amended Complaint\") (ECF Doc. # 3) 2 with prejudice pursuant to Fed. R.\nCiv. P. 12(b)(6).\nPRELIMINARY STATEMENT\nPlaintiff's arguments in her Memorandum of Law in Opposition to Defendants' Motion\nto Dismiss (\"Opposition Brief') are entirely circular and thus unconvincing. Specifically, in her\nOpposition Brief, Plaintiff responds to Defendants' arguments in support of their Motion to\nDismiss the negligence claims against the Corporate Defendants by: (i) referring back to\nPlaintiffs allegations comprised of labels and conclusions, formulaic recitations of the\nnegligence causes of action, allegations made \"upon information and belief,\" and impermissible\ngroup pleading; and (ii) then stating, contrary to Twombly and lqbal3 and Second Circuit\ndecisions applying the former, that such allegations are enough to state claims. Plaintiff has\ntherefore failed to address the specific pleading deficiencies raised by Defendants.\nPlaintiff also inappropriately attempts in her Opposition Brief to restate — i.e., effectively\namend — her allegations in her Amended Complaint. Such assertions are not entitled to any\nweight on this Motion. See\n\nv. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (\"a\n\nI Plaintiff amended her Complaint before completing service on Defendants.\n2 A copy of Plaintiff's Amended Complaint is attached as Exhibit A to the Declaration of Bennet J. Moskowitz\n(\n... [truncated, 2204 chars — for the full page use /api/corpus/document/EFTA02846294/5 or ?id=EFTA02846294&page=5]", "char_count": 2204}, {"efta_number": "EFTA02846294", "page_number": 6, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 7 of 16\n\nparty is not entitled to amend its complaint through statements made in motion papers\"). See also\nCal Distrib. Inc. Cadbury Schweppes Ants. Bevs., Inc., No. 06 Civ. 0496 (RMB) (JCF), 2007\nU.S. Dist. LEXIS 854, at *20-21 (S.D.N.Y. Jan. 5, 2007);\n\nv. Intl Bhd. of Teamsters, AFL-\n\nCIO, No. 00 Civ. 1983 (LAP) (JCF), 2002 U.S. Dist. LEXIS 16985, at *11 (S.D.N.Y. Sept. II,\n2002).\nSeparately, Plaintiff's reliance on CPLR § 215(8)(a), which is a narrow New York rule\napplicable only where — unlike here — civil and criminal actions arise from the same discrete\nevents, is completely misplaced. As explained in further detail below, the criminal indictment\nPlaintiff relies on clearly does not arise from the alleged 2001 sexual battery of Plaintiff.\nPlaintiff also fails to deny that her claim for punitive damages is barred under New York\nlaw. Plaintiff's argument that USVI law should apply to this issue is wrong. New York law\nholds that the law of the place of the alleged torts — here, New York — applies to the issue of the\navailability of punitive damages.\n\nI.\n\nARGUMENT\na.\n\nPlaintiff fails to point to alleged facts supporting her recitations of elements\nof causes of action against the Corporate Defendants—there are none.\n\nAs fully explained in Defendants' Memorandum of Law in Support of their Motion to\nDismiss (\"Moving Brief') (ECF #38), with numerous citations to Plaintiff's Complaint, Plaintiff,\namong other things: (i) does not allege any facts establishing Nine East, FTC or NES owed her a\nduty, how those entities breached any such duty or how any such breach caused Plaintiff's\nalleged damages; (ii) alleges her \"friend,\" not someone acting on behalf of any of the Corporate\nDefendants, caused Plaintiff to visit the real property owned by Nine East where the alleged torts\noccurred (Compl. yq 47, 51-61); (iii) alleges the \"opulence of the mansion [owned by Nine\nEast]... facilitated [Plaintiff's] further cooper\n... [truncated, 2077 chars — for the full page use /api/corpus/document/EFTA02846294/6 or ?id=EFTA02846294&page=6]", "char_count": 2077}, {"efta_number": "EFTA02846294", "page_number": 7, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 8 of 16\n\nacting on the Corporate Defendants' behalf caused such facilitation; (iv) alleges the sexual\nassaults occurred \"during the course and scope of [Decedent's] employment for [FTC]\" (Compl.\n1 111) without asserting factual allegations as to how or why that was the case; (v) alleges the\ntorts took place on Nine East's property, not on any property owned by FTC or NES; however,\nPlaintiff does not allege any facts showing FTC knew or should have known Decedent's\npropensity for the conduct that allegedly caused Plaintiffs injuries; and (vi) engages in\nimpermissible group pleading.\nIn response, Plaintiff again recites the elements of her negligence causes of action, often\nwithout even citing to her own allegations (see, e.g., Opp. Br. p. 7 (\"As the property owner,\nDefendant Nine East had a non-delegable duty to maintain the premises in a reasonably safe\ncondition.\"; p. 9 \"As [Decedent's] employer, [FTC] had a duty to exercise reasonable care to\nrefrain from retaining in its employ a person with known dangerous propensities in a position\nthat would present a foreseeable risk of harm to others.\"). Plaintiff misses the point. Plaintiff\nfailed to allege facts supporting these and other conclusory assertions. Moreover, Plaintiff's\n\nCompl.\n\n11\n\nclaim that she \"has not engaged in group pleading\" (Opp. Br. p. 5) is clearly incorrect. (See, e.g.,\n23, 37-44, 62-63.)\n\nPlaintiff now argues, but fails to allege in her Complaint, that she is permitted to rely on\nher numerous allegations made \"upon information and belief\" because facts, which Plaintiff does\nnot identify, are peculiarly within the Corporate Defendants' possession (Opp. Br. [ECF #45] p.\n10). Plaintiff's new theory is unconvincing for at least two reasons.\nFirst, Plaintiff ignores the principle, cited in the Moving Brief, that \"[n]o matter what the\npleading standard is, her complaint must at least contain enough factual allegations that are not\nmade upon i\n... [truncated, 2116 chars — for the full page use /api/corpus/document/EFTA02846294/7 or ?id=EFTA02846294&page=7]", "char_count": 2116}, {"efta_number": "EFTA02846294", "page_number": 8, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 9 of 16\n\nv. NYS Office of Mental Health, No. 17-CV-8033 (JPO), 2019 U.S. Dist. LEXIS 38450, at *14\n(S.D.N.Y. Mar. II, 2019) (citing Twombly, 550 U.S. at 555). Plaintiff's Complaint does not\ncontain enough factual allegations not made \"upon information and belief' to state claims\nagainst the Corporate Defendants.\nSecond, Plaintiff's reliance on Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.\n2010), to support her new argument is misplaced. The Second Circuit recently reaffirmed that the\nprinciple set forth in Arista does not grant plaintiffs license to \"merely plop 'upon information\nand belief in front of a conclusory allegation and thereby render it non-conclusory.\" Citizens\nUnited v. Schneiderman, 882 F.3d 374, 385 (2d Cir. 2018). However, that is exactly what\nPlaintiff did in this action—she plopped \"upon information and belief' in front of numerous\nconclusory allegations against the Corporate Defendants.\nMoreover, the principle set forth in Arista does not apply where, as here, a plaintiff fails\nto explain why facts not alleged in her complaint are \"peculiarly within [Defendants')\npossession.\" See Rothbein v. City of N.Y., No. I8-CV-5106 (VEC), 2019 U.S. Dist. LEXIS\n32358, at *29-30 (S.D.N.Y. Feb. 28, 2019) (court had \"no basis from which to infer Plaintiff's\nbelief ... is anything more 'than pure speculation' where plaintiff failed to explain why\ninformation not alleged in her complaint was peculiarly within defendants' possession and\ncontrol (quoting Ludwig's Drug Store, Inc. v. Forest City Enters., No. I3-CV-6045, 2016 U.S.\nDist. LEXIS 28038, at *14 (E.D.N.Y. Mar. 4, 2016))).\nPlaintiff's lists of allegations against FTC and NES (Opp. Br. pp. 9-10 and 11-12,\nrespectively) merely repeat her allegations stated within Counts II and III of her Complaint.\nHowever, those allegations merely are a recitation of the elements of the asserted negligence\n\n-4409186620\n\nEFTA02846302\n\n", "char_count": 1979}, {"efta_number": "EFTA02846294", "page_number": 9, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 10 of 16\n\ncauses of action. Plaintiff ignores that she failed to allege in her Complaint any facts supporting\nthese recitations.\nTo the extent Plaintiff now suggests FTC is somehow vicariously liable for Decedent's\nalleged sexual assaults of Plaintiff (Opp. Br. p. 7), Plaintiff is wrong as a matter of law. An\nemployer is not liable for an employee's acts where the employee departs from her duties for\nsolely personal motives unrelated to the furtherance of the employer's business. See, e.g., N. X. v.\nCabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002) (\"A sexual assault perpetrated by a hospital\nemployee is not in furtherance of hospital business and is a clear departure from the scope of\nemployment, having been committed for wholly personal motives\" (citing Judith M. v. Sisters of\nCharity Hosp., 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999))).4\nThe issues in the cases cited by Plaintiff to support this new vicarious liability theory are\nfactually and procedurally distinguishable from this matter and thus have no bearing here. See\nHorowitz v. 763 E. Assocs., LLC, 125 A.D.3d 808, 809 (1st Dept. 2015) (appeal from summary\njudgment order in action brought by plaintiff, who allegedly fell through\nagainst building's owner and manager);\n\npanel at building,\n\nv. Equitable Life Assurance Soc'y, 79 N.Y.2d\n\n663, 666 (1992) (appeal from Appellate Division order on judgment upon verdict in wrongful\ndeath action arising from cardiac failure resulting from EKG ordered by defendant).\nThe state court cases Plaintiff relies on to support her negligence claim against FTC are\nalso factually and procedurally inapplicable, otherwise not germane to whether Plaintiff stated a\nclaim under the federal pleading standards (she did not) or do not support of Plaintiff's positions\n\n* Plaintiff cites several slip and fall/defective condition cases in which employees and independent contractors sued\ntheir employers. See Backiel v. Citiban\n... [truncated, 2648 chars — for the full page use /api/corpus/document/EFTA02846294/9 or ?id=EFTA02846294&page=9]", "char_count": 2648}, {"efta_number": "EFTA02846294", "page_number": 10, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 11 of 16\n\non this Motion. See Ronessa H. v. City ofN.Y., 101 A.D.3d 947 (2nd Dept. 2012) (Appellate\nDivision reversed the Supreme Court's denial of motion after trial and dismissed plaintiff's\nnegligent supervision claim); Rumpus v. N.Y.C. Transit Auth., 47 A.D.3d 653 (2nd Dept. 2008)\n(short form decision that provides no details concerning which of plaintiffs allegations the court\ndeemed sufficient to state a claim); Kirkman by Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401,\n402 (2d. Dept. 1994) (reaffirming the well-established legal principle, advocated by Defendants\nhere, that \"there is no vicarious liability on the part of the employer for torts committed by the\nemployee solely for personal motives unrelated to the furtherance of the employers' business.\"\n(citations omitted)); Krystal G. v. Roman Catholic Diocese ofBrooklyn, 933 N.Y.S.2d 515, 523\n(Sup. Ct. Kings Cnty. 2011) (court found plaintiff stated negligent supervision claim because,\nunlike Plaintiff here, the former specifically alleged what a defendant pastor did that showed he\nknew or should have known of assistant pastor's propensity to commit sexual abuse).\nPlaintiff's assertions that Plaintiff \"need not explain the details of each defendant's role\nin the planning, funding and executing of defendants' alleged joint [] scheme\" (Opp. Br. 5), and\nthat \"Defendant [sic] argues that the law does not impose a duty to control the conduct of third\npersons to prevent them from harming others\" (Opp. Br. 7), are straw man arguments.\nDefendants are not making these arguments. Nor are these the relevant issues on this Motion.\nRather, the issue here is whether Plaintiff has alleged \"enough facts\" to state plausible\nnegligence claims against any of the Corporate Defendants. Twombly, 550 U.S. at 570. Plaintiff\nhas failed to do so.\nThe cases Plaintiff cites to support these straw man arguments are factually and/or\nprocedurally distinguishable and thus presen\n... [truncated, 2294 chars — for the full page use /api/corpus/document/EFTA02846294/10 or ?id=EFTA02846294&page=10]", "char_count": 2294}, {"efta_number": "EFTA02846294", "page_number": 11, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 12 of 16\n\nPlaintiff relies to salvage her negligence claims against the Corporate Defendants stands for\nuncontroversial principles not in dispute (e.g., what the pleadings standards are, which is not in\ndispute, versus whether Plaintiff satisfied the standards, which is disputed).6\nb.\n\nCPLR § 215(8)(a) does not revive Plaintiff's battery claims that expired over\na decade ago because the referenced criminal indictment did not arise from\nDecedent's alleged battery of Plaintiff.\n\nPlaintiff argues in her Opposition Brief that, if the New York Child Victims Act is\ndeclared unconstitutional, Plaintiff should nevertheless be permitted to pursue her first of two\nduplicative battery claims because it would be timely under CPLR § 215(8)(a). However, CPLR\n§ 215(8)(a) is not applicable to this lawsuit.\nCPLR § 215(8)(a) provides:\nWhenever it is shown that a criminal action against the same defendant\nhas been commenced with respect to the event or occurrence from which a\nclaim governed by this section arises, the plaintiff shall have at least one\nyear from the termination of the criminal action as defined in section 1.20\nof the criminal procedure law in which to commence the civil action,\nnotwithstanding that the time in which to commence such action has\nalready expired or has less than a year remaining. (emphasis added).\nHere, the subject criminal indictment of Decedent (the \"Indictment\"), which Plaintiff\nattaches to her Amended Complaint, was not commenced with respect to the battery of Plaintiff\n\nits alleged role in servicing plaintiffs mortgage); Precision Assocs. v. Panalpina World Transp.. (Holding) Ltd., No.\nCV-08-42 (JO) (VVP), 2013 U.S. Dist. LEXIS 177023 (E.D.N.Y. Sep. 20, 2013), at *61 adopted by 2014 U.S. Dist.\nLEXIS 10345 (E.D.N.Y. Jan. 28, 2014) (finding complaint included \"significant detail\" establishing antitrust\nmisconduct involved knowledge and participation of corporate families): Hudak v. Berkley G\n... [truncated, 3039 chars — for the full page use /api/corpus/document/EFTA02846294/11 or ?id=EFTA02846294&page=11]", "char_count": 3039}, {"efta_number": "EFTA02846294", "page_number": 12, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 13 of 16\n\nalleged in her Amended Complaint. Indeed, Plaintiff does not allege she was one of the victims\nreferenced in the Indictment.\nNor could Plaintiff credibly assert she was one of the victims referenced in the\nIndictment. The Indictment describes acts and occurrences in 2002 — 2005 related to three\nspecific victims. Plaintiff alleges torts predating that period.\nPlaintiff's reliance on her allegation that she \"was subjected to the types of illegal sexual\nacts detailed in the [Indictment]\" (Compl. 1 44 (emphasis added)) is unconvincing for at least\ntwo reasons. First, the statements in the Indictment showing it did not arise from Decedent's\nalleged battery of Plaintiff, and not Plaintiff's allegation characterizing the Indictment, are\ncontrolling.\nSecond, even assuming Plaintiffs allegation is true, it merely suggests that she was also\nvictim of Decedent. However, Plaintiff does not, either in this allegation or elsewhere in her\nAmended Complaint, claim she was a victim of the occurrences charged in the Indictment.\nNew York courts have found that CPLR § 215(8)(a) was inapplicable in circumstances\nwhere the subject civil action had a much clearer and closer nexus to a criminal action than the\nrelationship Plaintiff has attempted to create here between this action and the Indictment. See\nChristodoulou v. Terdeman, 262 AD2d 595, 596 (2d Dept. 1999) (\"Contrary to the arguments\nadvanced by the plaintiff, [CPLR § 215(8)(a)] applies only to those claims which are based on\nthe events of February 26, 1993 and December 28, 1993, because it was only in connection with\nthe events of these two days that a criminal prosecution was commenced against the defendant\");\nGallina v. Thatcher, No. 2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty.\nOct. 23, 2018) (finding CPLR § 215(8Xa) inapplicable where incidents charged in criminal\naction and those alleged in civil action occurred on different dates). CI M\n... [truncated, 2050 chars — for the full page use /api/corpus/document/EFTA02846294/12 or ?id=EFTA02846294&page=12]", "char_count": 2050}, {"efta_number": "EFTA02846294", "page_number": 13, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 14 of 16\n\nN.Y., 15-cv-7107 (LGS), 2017 U.S. Dist. LEXIS 201829, at *13 (S.D.N.Y. Dec. 7, 2017)\n(finding CPLR § 215(8Xa) was inapplicable to claims against civil defendants who were not\ncharged as co-defendants in criminal action brought against another civil defendant,\nnotwithstanding the same events gave rise both actions).\nGallina is especially instructive on this issue. In Gallina, an individual sued an attorney\nfor battery and other claims based on the core allegation that, over the course of two years, the\nattorney committed various acts of sexual misconduct against the plaintiff including sexual\nassault Id. at *1. It was uncontested that defendant had also been criminally charged with\nforceable touching for other incidents that occurred with plaintiff in 2017. Id. at *3. The court\ndismissed as time barred plaintiff's battery counts based on incidents alleged to have occurred in\n2016. Id. at *2-3.\nThe court rejected plaintiff's argument that CPLR § 215(8)(a) applied to the 2016\nincidents, finding:\n... Plaintiff argues that these 2016 incidents are events or occurrences\nfrom which the \"criminal action\" commenced as to the February, March\nand May 2017 incidents arose within the meaning of CPLR §215(8)(a). In\nessence, Plaintiff argues that the July and October 2016 incidents are part\nof the same ongoing course of events as the February, March and May\n2017 incidents and should therefore be deemed timely commenced.\nAs noted by Defendant, the case law does not support Plaintiffs\ninterpretation of the tolling provision of CPLR §215(8Xa). The criminal\ninstruments provided by Plaintiff in opposition to Defendant's motion\ndemonstrate that Defendant was charged for incidents occurring on three\n(3) specific dates — February 17, 2017, March 24, 2017 and May 16,\n2017. Pursuant to CPLR §215(8Xa), tolling would apply only to claims\nbased on these dates, \"because it was only in connection with the events of\nthese [th\n... [truncated, 2423 chars — for the full page use /api/corpus/document/EFTA02846294/13 or ?id=EFTA02846294&page=13]", "char_count": 2423}, {"efta_number": "EFTA02846294", "page_number": 14, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 49\n\nFiled 01/02/20\n\nPage 15 of 16\n\nId. at *3-4.\nHere, Plaintiff asserts a much weaker connection between this action and the Indictment\nthan the one unsuccessfully asserted by the plaintiff in Gallina. Therefore, the Court should\nreject Plaintiff's argument for the application of CPLR § 215(8)(a).\nc.\n\nNew York Law applies to Plaintiff's claim for punitive damages because she\nalleges the subject torts took place in New York.\n\nPlaintiff does not dispute that New York law bars her claim for punitive damages as a\nmatter of law. Instead, Plaintiff erroneously asserts that USVI law applies to this issue without\nciting any legal authority to support that argument.'\nPlaintiff alleges the acts and omissions giving rise to her causes of action occurred in\nNew York (Compl. II 15, 22). Therefore, New York law applies to the issue of punitive\ndamages. See Starr lndem. & Liab. Co. v. Am. Claims Mgmt., 14-cv-0463-JMF, 2015 U.S. Dist.\nLEXIS 60272, *7 (S.D.N.Y. May 7, 2015) (\"Because punitive damages are conduct-regulating,\n`the law of the jurisdiction where the tort occurred will generally apply.\") (quoting Deutsch v.\nNovartis Phamis. Corp., 723 F. Supp. 2d 521, 524 (E.D.N.Y. 2010); Guidi v. Inter-Continental\nHotels Corp., No. 95-CV-9006, 2003 U.S. Dist. LEXIS 6390, at *1 (S.D.N.Y. Apr. 16, 2003)).8\nCONCLUSION\nBased on the foregoing and the reasons set forth in Defendants' Moving Brief,\nDefendants respectfully request that the Court grant their Motion to Dismiss in its entirety\ntogether with such other and further relief as the Court deems just and proper.\n\nNor does Plaintiff argue USVI law permits punitive damages against a decedent tortfeasor.\n$ Plaintiff's reliance on Doralee Estates, Inc. v. Cities Serv. Oil Co., 569 F.2d 716 (2d Cir. 1977), to support the\nassertion that sex trafficking \"is exactly the type of act for which punitive damages are permitted\" (Opp. Br. 12), is\nbaseless. Domlee has nothing to do with sex trafficking—it concerns a\n... [truncated, 2105 chars — for the full page use /api/corpus/document/EFTA02846294/14 or ?id=EFTA02846294&page=14]", "char_count": 2105}, {"efta_number": "EFTA02846294", "page_number": 15, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDated: New York, New York\nJanuary 2, 2020\n\nDocument 49\n\nFiled 01/02/20\n\nPage 16 of 16\n\nRespectfully submitted,\nTROUTMAN SANDERS LLP\n875 Third Avenue\nNew York, New York 10022\nBy: /s/ Bennet J. Moskowitz\nBennet J. Moskowitz\nAttorneysfor Defendants\n\n-II409186620\n\nEFTA02846309\n\n", "char_count": 303}]}