Doe v. Bin Fahd Alsaud et al

Filing 71

OPINION re: 54 MOTION to Dismiss. MOTION for Summary Judgment filed by Mustapha Ouanes, 60 CROSS MOTION for Summary Judgment filed by Jane Doe: Based on the conclusions set forth above, Plaintiff's motion for summary judgment is denied with leave granted to refile consistent with this Opinion. Defendant's motion is denied. (Signed by Judge Robert W. Sweet on 5/9/2016) (tn)

UN I TED STATES DI STRICT COURT
SOU THE RN DI STRICT OF NEW YORK

---------------------------------------- x
JAN E DOE,
Pl a i nt i ff ,
13 Ci v . 5 7 1 (RWS)
- against OPINION
HRH PR I NCE ABDULAZIZ BI N FAHD ALSAUD ,
SAUDI OGER LTD , and MUSTAPHA OUANES ,
Defendan t s .

--------------------- ------ ----- - - ------x
A P P E A RA N C E S :

ATTORNEY FOR PLAI NTI FF
MORELL I ALTERS RATNER , P . C .
777 Third Avenue , 21 st Fl oor
New York , NY 10022
By : Martha M. McBrayer , Esq .
Sara A . Strickland, Esq .

PRO SE DEFENDANT
DIN #12A2814
Easter New York Correctional Facility
Box 338
Napanoch , NY 12458 - 0338

1

>

Sweet, D.J.

Defendant pro se Mustapha Ouanes ("Defendant" or " Ouanes ")
has moved to dismiss Plaintiff ' s claims, or in the alternative,
for summary judgment in his favor.

Plaintiff Jane Doe

("Plaintiff" or "Doe") has cross-moved for partial summary
judgment pursuant to Federal Rule of Civil Procedure 56 as to
Oaunes's liability. Based on the conclusions set forth below,
Plaintiff's motion is den i ed and Defendant's motion is denied.

I.

Prior Proceedings

Plaintiff filed the instant action on January 25 , 2013 .
Plaintiff alleged Ouanes , as an employee of HRH Prince Abdulaziz
Bin Fahd Alsaud ("Prince Abdulaziz Bin Fahd") and Hariri
Int erests doing business as Saudi Oger LTD ("Saudi Oger"),
sexually assau l ted , raped, and sodomized her at the Plaza Hotel
on January 26 , 2010 . Plaintiff alleged claims of negligent
hiring, negligent supervisi on, negligent retention, and
respondeat superior liability against Saudi Oger and Prince
Abdulaziz Bin Fahd, and claims of assault, battery, false
imprisonment, and intentional infliction of emotiona l distress
against Ouanes . In February 2012 , following a two-week trial in

2

New York Criminal Court, Ouanes was convicted of rape and sexual
abuse and sentenced to ten years in prison.

Plaintiff moved for default judgment against Prince
Abdulaziz Bin Fahd for his failure to appear, which was denied
on April 3, 2014 for failure to effect proper service. Pursuant
to Federal Rule of Civil Procedure 41 (a) ( 1) (A) (ii) Hariri
Interests was voluntarily dismissed by stipulation on May 1,
2013. Plaintiff filed a First Amended Complaint ("FAC") on May
7, 2 013, removing Hariri and withdrawing the negligent hiring
claim. By Opinion dated April 3, 2014, all of Plaintiff's
remaining claims against Saudi Oger were dismissed for failure
to state a claim. By stipulation, all claims against Saudi Oger
were dismissed with prejudice on May 22, 2014.

Defendant filed his instant motion to dismiss, or in the
alternative, for summary judgment, on January 5, 2016. Plaintiff
filed her cross-motion for summary judgment on February 12,
2016. Defendant's motion was heard on submission on February 22,
2016, and Plaintiff's motion was heard on submission on April
15, 2 016, at which point both motions were deemed fully
submitted.

3

II.

Applicable Standard

Pursuant to Federal Rules of Civil Procedure 12(d), a
motion to dismiss is converted to a motion for summary judgment
under Rule 56 if "matters outside the pleadings are presented to
and not excluded by the court." Fed. R. Civ. P. 12(d). The
Second Circuit has emphasized the Rule's caution that all
parties must be given sufficient notice of conversion to provide
adequate opportunity to present extrinsic material relevant to a
motion for summary judgment that may not otherwise be submitted
in support or opposition of a mot ion to dismiss. See e.g. Sahu
v . Union Carbide Corp., 548 F.3d 59,

69 (2d Cir. 2008) ; Best v.

Bellevue Hosp. New York, NY, 115 F. App'x 459, 460 (2d Cir.
2004) .

However, "[a] motion called a motion for summary judgment,
whether o r not stated as alternatively for dismissal, ordinarily
will place [a party] on notice that the district court is being
asked to look beyond the pleadings to the evidence in order to
decide the motion." Sahu, 548 F.3d at 69. Here, both parties
were not o nly apprised that conversion was a possibility, they
each requested that the Court look beyond the pleadings in
resolving the instant motions. Def e ndant filed his mot ion to
dismiss in the alternative as a motion for summary judgment, and
4

more tellingly, requested consideration of numerous extrinsic
exhibits attached to each of his submissions. Defendant's
opposition is in the form of a cross-motion for summary
judgment, seeking resolution on the extrinsic ground of
c o llateral estoppel, accompanied by a Rule 56.1 statement.
Accordingly, each party was provided (and took advantage of)

the

opportunity to treat Defendant's motion as a motion for summary
judgment.

In light of the prescription that pro se submissions must
be read to "raise the strongest arguments that they suggest,"
Olle v. Columbia Univ., 332 F. Supp. 2d 599,

607

(S.D.N.Y.

2004), aff'd, 136 F. App'x 383 (2d Cir. 2005), Defendant's
motion shall be treated as a motion to dismiss where Rule 12(b)
issues are presented, and a motion for summary judgment insofar
as Defendant argues a lack of dispute as to material fact.

1

Plaintiff seeks to preclude consideration of Defendant's April
6 submissions, including his "Opposition to Summary Judgment"
c o ntaining several extrinsic exhibits. Plaintiff argues
Defendant had filed an opposition to Plaintiff's Cross-Motion
and reply to his motion in a single filing, ECF No. 66. The
Co urt is mindful that Defendant is proceeding pro se while
incarcerated. While pro se litigants are not excused from
procedural requirements, Defendant's submissions must be held
"t o less stringent standards than formal pleadings drafted by
lawyers." Olle v. Columbia Univ., 332 F. Supp. 2d 599, 607
(S.D.N.Y. 2004), aff'd, 136 F. App'x 383 (2d Cir. 2 005).
Considering the liberal standard for pro se pleadings and the
Se c o nd Circuit's preference that parties be given full
opportunity to submit extrinsic e vidence in supporting or
1

5

Summary judgment is appropriate on l y where "there is no
genuine issue as to any material fact and

th e moving party

is entitled to a judgment as a matter of law."

Fed. R. Civ. P.

56(c).

A dispute is "genuine" if "the ev idence is such that a

reasonable jury could return a verdict for the nonmoving party."
Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

The

relevant inquiry on application for summary judgment is "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."

Id. at 251-52 .

A court

is not charged with weighing the evidence and determin in g its
truth, but with determining whether there is a genuine issue for
trial.

Westinghouse Elec. Corp . v . N. Y. City Transit Auth., 735

F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting Anderson, 477 U.S.

at 249). "[T]he mere existence of some alleged factual dispute
between the parties will not def eat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson, 477 U.S.
at 247-48

(emphasis in original) .

responding to a motion to dismiss converted to a motion for
summary judgment, all of Defendant's submissions and arguments
will be considered .
6

III.

Plaintiff's Motion is Denied

Plaintiff argues Ouanes is collaterally estopped from
denying liability for each of the claims against him on the
basis of his criminal conviction. See Pl.'s Cross-Mot. for Summ.
Judgment ("Pl.'s MSJ."). "A criminal conviction, whether by plea
or after trial, is conclusive proof of its underlying facts in a
subsequent civil action and collaterally estops a party from
relitigating the issue." Grayes v. Distasio, 166 A.D.2d 261,
262-63, 560 N.Y.S.2d 636 (1990)

To warrant summar y judgment on the basis of collateral
estoppel "the court must find that:
proceedings are identical;

(1) the issues in both

(2) the issue in the prior proceeding

was actually litigated and actually decided,

(3) there was full

and fair opportunity to litigate in the prior proceeding, and
(4) the issue previously litigated was necessary to support a
valid and final judgment on the merits."
299 F. Supp. 2d 249, 252 (S.D.N.Y. 2004)

Mishkin v. Ageloff,
(citations and internal

quotation marks omitted). Because Defendant's convictions were
entered in New York state courts and because Plaintiff has
brought this diversity action charging Defendant with state tort
claims, New York law governs. See Blumatte v. Farthing, 320 F.
App'x 68, 70 (2 d Cir. 2 009); see also FAC.
7

Plaintiff alleges her "civil causes of action [are]
premised upon the same set of occurrences as those that formed
the bases of Defendant Ouanes' criminal conviction." Pl.'s MSJ
at 6. This much is clear; Ouanes' underlying criminal conviction
concerned events that occurred at the Plaza Hotel on January 26,
2010. See Ouanes, 123 A.D.3d 480. However, the underlying
criminal conduct involved two victims: Plaintiff in this action,
Jane Doe, and her friend Mary Doe, a non-party to this action.
Plaintiff alleges both victims drifted in and out of
consciousness, and b o th were assaulted by Ouanes. See FAC

~~

29,

33, 36, 40. Plaintiff alleges both Jane and Mary underwent rape
kits, both of which revealed relevant evidence. Id.

~~

47-9. The

Police Report, which alone cannot demonstrate the specifics of
the conduct for which Defendant was convicted, redacts victim
identification information.

Plaintiff has alleged but failed to establish that she was
the victim of the conduct for which Defendant was convicted, and
therefore failed to demonstrate an identity of issues b e tween
her civil claims and Defendant's criminal conviction. It could
simultaneously be true that, as Plaintiff alleges in her 56.1
Statement, "Defendant Mustapha Ouanes is presently incarcerated
in New York and is serving a ten year sentence as a consequence
of the events [alleged]" and that one or more of his convictions
8

applied to his conduct toward Mary, one or more applied to his
conduct toward Jane, or one or more applied toward both. See
Pl.'s 56.1 Statement,

~

11. Even if the conduct for which

Defendant was convicted suffices to meet all other requirements
of collateral estoppel with respect to certain tort claims, it
will only apply if the criminal proceeding determined
Defendant's liability for that conduct as toward Plaintiff
rather than with respect to another victim. Defendant cannot be
collaterally estopped from denying his liability for Plaintiff's
civil claim on the basis of criminal convictions for conduct
toward Mary Doe.

The record in the underlying criminal conviction may
establish the necessary information. Presumably, a comparison of
the minutes of (1) the charge to the jury and (2) the rendering
of the jury's verdict would specify the conduct to which each
count applied. However, Plaintiff not having provided any
corroborating evidence to demonstrate Defendant's conviction
applied to the conduct leveled upon her, the Court cannot find
collateral estoppel applies on the current record.

A genuine fact of material dispute as to Defendant's
liability persists, and accordingly, Plaintiff's motion for
summary judgment is denied with leave granted to refile.
9

IV.

Defendant's Motion is Denied

Defendant attacks Plaintiff's c laims on different bases in
each of his filings.

2

2015 , Defendant argues

In the instant motion, dated December 28 ,
(1)

Plaintiff has failed to obta i n

personal jurisdiction over him;

(2)

Plaintiff fails to state a

claim based on a lleged conflicts between Plaintiff's allegations
toward now dismissed Defendants other than Ouanes;

(3) failure

to state a claim for alleged failure to plead a physical injury;
( 4) Plaintiff is contributorily negligent;

( 5) "ill

opportunistic intent "; and (6) chal l enges to the perceived
fairness of his underlying criminal conviction . Def.'s Mot. to
Dismiss ("Dec. 28 Submission").

In his March 8, 2016 filing,

Defendant makes similar

arguments wh i ch he refers to as "absence of proof" regarding his
underlying criminal conviction , and a supposition his conviction
is not final on the basis that he intends to bring new evidence
to light to a higher court. Def.'s Reply to Pl.'s Cross-Mot. for
Summ. Judgment ("March 8 Submission").

2

For the sake of clarity , Defendant 's filing will be ref e rred to
by the date upon which Defendant represents to have submitted
them.
10

In his April 6, 2016 filing,

Defendant raises several

"issues" that he appears to argue are disputes of material fact
sufficient to defeat a motion for summary judgment and also to
warrant dismissal of Plaintiff's complaint:

(1) discrepancies

between Plaintiff's timeline and evidence used in his underlying
criminal trial;

(2) the "health issue," reiterating that

Defendant was denied his request to probe Plaintiff's mental
health history in his underlying criminal trial;

(3) the "drug

issue," raising that no evidence of drugs was shown in his
underlying criminal conviction; and (4) the "motive: money
issue," reiterating that Defendant would not have been convicted
had the jury in his criminal trial known Plaintiff would bring a
civil suit in the future.

Def.'s Opp. to Summ. Judgment

("April

6 Submission").

Federal Rule of Civil Procedure 12 provides seven discrete
bases to dismiss a claim for relief in a civil pleading: lack of
subject-matter jurisdiction, lack of personal jurisdiction,
improper venue, insufficient process, insufficient service of
process, failure to state a claim upon which relief can be
granted, and failure to join a party under Rule 19. Fed R. Civ.
P. 12(b) (1)-(7). Rule 56 provides for summary judgment when the
party requesting relief "shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
11

as a matter of law." Fed. R. Civ. P. 56. Or, stated differently,
the allegations set forth,

even if true, would not warrant

relief under the law. These are the only bases upon which the
Court could dispose of Plaintiff's claims against Defendant.

Most of Defendant's arguments are irrelevant to these
grounds . Defendant is permitted to raise whatever defense he
chooses to deny Plaintiff's allegations or his liability for the
claims or under the facts she has alleged. However, this civil
action is not a retrial of Defendant's cr iminal conviction. Any
underlying discrepancies or lack of fairness or proof Defendant
perceives in those proceedings have no bearing on whether
Plaintiff's claims can or must be dismissed, no matter the
va lidit y of Defendant's arguments. Plaintiff's motion having
been denied as set forth supra, these arguments need not be
addressed to determine whether a dispute of material fact exists
to defeat summary judgment in Plaintiff's favor. Likewise,
Plaintiff's motive and history have no consequence at this
stage. The Court construes the remainder of Defendant's
allegations, requests, and filings so as to present the
strongest argument for dismissal pursuant to Rule 12, or summary
judgment in Defendant's favor pursuant to Rule 56 . See Olle, 332
F. Supp . 2d at 607 .

12

a. Personal Jurisdiction

Defendant argues he has not been properly served, thus
Plaintiff has not obtained personal jurisdiction over him.
Def.'s Dec. 28

Submission~~

9-13.

"Without proper service a court has no personal
jurisdiction over a defendant." Hawthorne v. Citicorp Data Sys.,
Inc., 219 F.R.D. 47, 49 (E.D.N.Y. 2003). New York's long-arm
statute provides for specific personal jurisdiction over acts of
non-domiciliary who "commits a tortious act within the state."
N.Y. C.P.L.R.

§

302(2). There is no legitimate question as to

whether the alleged tortious acts were committed within New York
state.

Pursuant to Rule 12(b) (5), "a complaint may be dismissed
for insufficient service of process." Weston Funding, LLC v.
Consorcio G Grupo Dina, S.A. de C.V., 451 F.Supp.2d 585, 589
(S.D.N.Y. 2006)

(citations omitted); see also id.

("Without

proper service a court has no personal jurisdiction over a
defendant.").

13

Under Rule 4(e) (1) of the Federal Rules of Civil Procedure,
service of an individual may be made in accordance with local
state law. New York law provides:
Personal service upon a natural person shall be made by any
of the following methods:

(1) by delivering the summons

within the state to the person to be served; or (2) by
delivering the summons with in the state to a person of
suitable age and discretion at the actual place of
business, dwelling place or usually place of above of the
person to be served and by either mailing the summons to
person to be served at his or her last known residence or
by mailing th e summons by first class mail to the person to
be served at his or her actual place of bus iness .

.; or

(3) by delivering the summons within the state to the agent
for service of the person to be served as designated under
rule 318 .

N.Y. C.P.L.R.

§

308. Once a defendant challenges the sufficiency

of service of process, the burden of proof is on the plaintiff
to show the adequacy of service . Weston Funding, LLC v.
Consorcio G Grupo Dina, S.A . de C.V ., 451 F. Supp . 2d 585, 589
(S.D.N.Y. 2006)
997

(quoting Commer v. McEntee, 283 F.Supp. 2d 993,

(S.D.N.Y.2003); Howard v . Klynveld Peat Marwick Goerdeler,

14

977 F. Supp. 654, 658

(S.D.N.Y. 1997), aff'd, 173 F.3d 844

(2 d

Cir. 1999)).

A review of th e docket reveals Ouanes was personally served
at Eastern Correctional Facility with the summons and original
complaint o n February 6, 2013 . Defendant concedes he was
personally served. Def.'s Dec. 28

Submission~

3. Defendant

filed a letter docketed as an answer, informing the Court of
Ouanes '

intention to "defend [his] case personally." Def.'s

Ans., ECF No . 4. Plaintiff asserts that "Defendant Ouanes was
served a copy of Plaintiff's cross -motion [t o Amend the
Complaint, t o which the FAC was attached] via regular mail." 3
Plaintiff's citations and filings do not provide documentary
pr oo f of this claim. 4

Plaintiff cites " D. E . 10 and Exhibit E" for this assertion . It is unclear to
the Co urt which documents are referenced by these citations. "D.E." is not
recited in long form in Plaintiff ' s brief , and does not appear as an
abbreviation for court documents in Bluebook Bluepages Table 1 . Plaintiff ' s
other citations make clear the reference is not to the docket number (docket
number 10 , for good measure , is an endorsed letter for an extension of time
to serve Saudi Oger) . Likew is e , no "E x hibi t E" is attached t o Plaintiff's
brief, and Exhibit E attached to Pl a intiff Counse l's declaration in support
of the in stant mot i on is Ouanes ' Cert ifi cate of Disposition Ind ictment . The
only " Exhibit E" potentially relevant to the issue of service is Exhibit E
attached to Plaintiff ' s first motion for entry of default as to Prince
Abdulaziz Bin Fahd Alsaud . ECF No. 33
4 Plainti ff' s motion to amend attaches two affidavits of service : one declaring
fai l ure of service on Saudi Oger at a secured bu ildin g in Bethesda , MA on
January 31 and February 5 , 2013 , and one declar i ng a failure t o serve Prince
Abdulaziz Bin Fah Alsaud at the same location on February 22 , 2013 . Pl .' s
Mem . of Law in Opp . to Def .' s Mot. to Dismiss and in Supp . Pl's Cross - Motion
to Amend the Compl ., Ex . B. Neither app ly to Ouanes or suppo r t Plaintiff's
contention that Ouanes was served by mail . Docket number 19, a l so attached as
Exhibit E to Plaintiff ' s First motion for entry of defau l t as to Prince
Abdulaziz Bin Fahd Alsaud , is entered as " Certif i cate of Se r v i ce of Summons
and Amended Complaint. All Defendants ." However , the attached affidav it
3

15

"Where a federal court grants a plaintiff l e ave to file an
amended p l eading i n a pri o r-commenced case, the plaintiff d oe s
n o t need t o serve that amended pleading pursuant t o the
requirements of Rule 4, unless the amended pleading includes new
o r additi o nal claims for relief." O'Callaghan v. Sifre, 2 4 2
F.R.D. 6 9 , 73

(S.D.N. Y. 2007)

(citations and internal quotation

marks omitted). Here, the FAC that the Court acc e pted in its
April 3, 2 014 o pinions contained identical factual allegati o ns
and l e gal c laims against Ouanes. Compare Compl. with FAC . In
fact,

the onl y difference between the pleadings is that the FAC

removes a llegati o ns ma de in the FAC against Hariri and the claim
for negligent hiring claim. Plaintiff affirms th e the FAC wa s
mail e d to Ouanes , but even had it not been, Ouanes cann o t and
does not claim la c k o f due process or notice o f Plaintiff's
claims against him after having been served with the original
complaint. The motion to dismiss on this basis is denied.

purport s only to serve " the a n nexed summon s and comp l aint ," wh ich is not
a t tac h ed , at the followi n g a ddress : HRH PR INCE ABDULAZIZ BIN FAHD ALSAUD c/o
The Plaza Hotel 770 5 th Avenue , 4 th Fl oor New York , New York " by l eaving it
with front desk concierge on July 15 , 2013 . The Court found this serv i ce
i n sufficient even as to the Prince in an Apr i l 3 , 2014 Opinion ( "The
Pl aintiff has not provided a n y evidence b eyond he r concl u sory allegations
that the Plaza Hotel is the Prince ' s res i de n ce o r dwelling ." ) .

16

..
'

b. Failure to State a Claim

Defendant argues Plaintiff has failed to state a claim on
the following bases 5 :
Def.'s Dec. 2 8
id.

( i)

failure to plead a physical injury,

Submission~

21- 22 ;

(ii) contributor y negligence,

22; and (iii) discrepancies between Plaintiff's

~

allegations and evidence presented at trial, see Def.'s March 8
Submissi o n, De f.'s April 6 Submission.

On a motion to dismiss pursuant to Rule 12(b) (6), a ll
factual a llegati o ns in the complaint are acc e pted as tru e , and
all inferences a re drawn in fa vo r of the pl e ader.
Polar Molecular Corp., 12 F.3d 1170, 1174

Mill s v.

(2d Cir. 1993).

Ho wever, "a plaintiff's obligation t o provide the grounds of his
entitlement to relief requires more than labels and
conclusions."
(2007)

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

(qu o tati o n marks omitted).

555

A c omplaint must contain

"sufficient factual matter, accepted as true, to 'state a claim

5

Defendant also ra i ses ot h e r in coherent or ir re l eva n t argume n ts re l ating
so l e l y to his co - defe n dants (for examp l e , an assertion that Pl a i ntiff lacks a
cause of action for pleadi n g that other defendants were not act i ng in an
o f ficial capaci t y and simu l taneous l y pleadi ng t ha t e mp l oyees of other
de f e n dants were in a n agency r e l a ti o n sh ip wi th t h e i r emp l oyers) . Def .' s Dec .
28 Submi ssion '['[ 15 - 20 . None of these arguments re l ate to whet h e r Plaintiff
has stated a c l aim. As reasoned inf r a , Defe n dant ' s arguments relating to " il l
opportunist i c i ntent ," Dec . 28 Submi ssion'[ '[ 24 - 43 , and factua l d i screpancies
in his u n der l ying co n vict i on see De f.' s Ma r c h 8 Submi ssion , Oe f.' s Apri l 6
Submission , are likewise irrelevant to disposit i on of the instant motions .

17

.· •' .
'

•

to relief that is plausible on its face.'"
556 U.S. 662, 663 (2009)

Ashcroft v. Iqbal,

(quoting Twombly, 550 U.S. at 570).

A claim is facially plausible when "the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged."
556).

Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at

In other words, the factual allegations must "possess

enough heft to show that the pleader is entitled to relief."
Twombly, 550 U.S. at 557

(internal quotation marks omitted).

Plaintiff alleges claims of assault, battery, false
imprisonment, and intentional infliction of emotional distress
against Ouanes. FAC '1I 90-107. "To sustain a cause of action to
recover damages for assault, there must be proof of physical
conduct placing the plaintiff in imminent apprehension of
harmful contact. To recover damages for battery, a plaintiff
must prove that there was bodily contact, that the contact was
offensive, and that the defendant intended to make the contact
without the plaintiff's consent." Bastein v. So tto, 299 A.D.2d
43 2 , 433, 749 N.Y.S.2d 538

(2002)

(citations omitted). To state

a claim o f fals e imprisonment, Plaintiff must plead: "(1) the
defendant intended to confine him,
c o nsci o us o f th e c o nfineme nt,

(2 ) the plaintiff was

(3) the plaintiff did not consent
18

"

~.

.

to the confinement and (4) the confinement was not otherwise
privileged." Broughton v. State, 37 N.Y.2d 451, 456, 335 N.E.2d
3 10 (1975). Finally, the elements o f intentional infliction o f
emotional distress are: " (i) extreme and outrageous conduct;
(ii) intent to cause, or disregard of a substantial probability
of causing, severe emotional distress;

(iii) a causal connection

between the conduct and injury; and (iv) severe emotional
distress." Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612
N.E.2d 699 (1993)

(citations omitted).

Plaintiff has plausibly plead sufficient factual matter to
state a claim meeting all e lements of each of the aforementioned
torts by pleading, in great detail, an allegation that Ouanes
raped, sodomized, and sexually assaulted her both against her
will and while she slipped in and out of consc iousness. See FAC
~~

18-50. While physical injury does not appear to be a

requisite element of any of Plaintiff's claims, the alleged rape
itself is more than sufficient to plead physical harm. Accepting
Plaintiff 's pleaded facts as true as the Court must, Plaintiff
has stated a plausible claim entit ling her to relief.

Finally, Defendant's contention that Plaintiff is
contributor ily negligent for her own rape and thus her cla ims
must be dismissed is unavailing. In New York, contributory
19

negligence does not bar recovery and is relevant only to
damages. N.Y. C.P.L.R. 1411. Moreover, Plaintiff's voluntary
intoxication may potentially establish the physical helplessness
element that goes toward lack of consent. See

~

She pherd, 83 A.D.3d 1298, 1 2 99, 92 1 N.Y.S.2d 666,

People v.
669 (2011)

(c o llecting citations). In other words, Defendant's argument
gives further reason to find Plaintiff has sufficiently stated a
claim rather than a reason to dismiss Plaintiff's claim.

c . Other Arguments

The facts Defendant has submitt e d tending to show
discrepancies between the evidence submitted at his trial and
Plaintiff's allegations, or tending to refute Plaintiff's
version of events, only demonstrate potential issues of material
fact that would bar summary judgment in his favor. As described
infra, the Court has considered the remainder of Defendant's
arguments and found they go to issues that are not relevant to
or not grounds for dismissal or summary judgment in his favor.
Defendant's motion for dismissal, or in the alternative, summary
judgment, is therefore denied in full.

20

'

.
"-

V.

Conclusion

Based on the conclusions set forth above, Plaintiff ' s motion
for summary judgment is denied with leave granted to refile
consistent with this Opinion. Defendant ' s motion is denied.

It is so ordered .

May,,

1

New York, NY

2016

SWEET
U.S.D.J.

21