Betts v. Sixty Lower East Side, LLC et al

Filing 113

MEMORANDUM AND ORDER denying 90 Letter Motion for Leave to File Document; terminating 104 Letter Motion to Compel; terminating 105 Letter Motion for Discovery; terminating 106 Letter Motion for Discovery; terminating 107 Letter Motion for Conference re: 90 LETTER MOTION for Leave to File Appeal & Certify for Appellate Review addressed to Judge Naomi Reice Buchwald from Curtis Sobel, Esq. dated 1/17/24., 104 LETTER MOTION to Compel Plaintiff to Independent Psychiatric Evaluation without interference from Plaintiff's counsel addressed to Judge Naomi Reice Buchwald from Curtis Sobel, Esq. dated April 9, 2024., 105 LETTER MOTION for Discovery and in Opposition addressed to Judge Naomi Reice Buchwald from Joseph Napoli on behalf of Plaintiff dated 04/09/2024., 106 LETTER MOTION for Discovery Court Ordered Stipulation addressed to Judge Naomi Reice Buchwald from Joseph Napoli, Esq. on Behalf of Plaintiff Margare t Betts dated May 6, 2024., 107 COUNTER LETTER MOTION for Conference re: 106 LETTER MOTION for Discovery Court Ordered Stipulation addressed to Judge Naomi Reice Buchwald from Joseph Napoli, Esq. on Behalf of Plaintiff Margaret Bet ts dated May 6, 2024. addre, 108 LETTER MOTION for Discovery Response to Counter Letter Motion addressed to Judge Naomi Reice Buchwald from Joseph Napoli on behalf ofPlaintiff, Margaret Betts dated May 13, 2024., 110 LE TTER MOTION for Extension of Time in Response to the Court's 5/24/24 Order (Doc 109) addressed to Judge Naomi Reice Buchwald from Curtis Sobel, Esq. dated May 29, 2024., 111 COUNTER LETTER MOTION for Discovery Court Ordered Stip ulation addressed to Judge Naomi Reice Buchwald from Joseph Napoli on Behalf of Plaintiff Margaret Betts dated May 30, 2024. ; terminating 108 Letter Motion for Discovery; terminating 110 Letter Motion for Extension of Time; terminating [1 11] Letter Motion for Discovery. Accordingly, the Court denies defendants' motion. The Clerk of Court is respectfully instructed to terminate the motions pending at ECF Nos. 90, 104-108, and 110-111. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/24/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
MARGARET BETTS,
Plaintiff,
MEMORANDUM AND ORDER
- against 20 Civ. 4772 (NRB)
SIXTY LOWER EAST SIDE, LLC, SIXTY HOTELS,
LLC, and SIXTY HOTEL MANAGER, LLC,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
This case arises from the alleged sexual assault of plaintiff
Margaret Betts (“plaintiff” or “Betts”) by a massage therapist
during plaintiff’s in-room massage appointment at Sixty LES hotel
(the “hotel”), owned and managed by Sixty Lower East Side, LLC,
Sixty Hotels, LLC, and Sixty Hotel Manager, LLC, (together the
“defendants”) on October 19, 2018.

On August 24, 2023, this Court

resolved issues of liability, finding that defendants’ conduct (1)
constituted negligence per se under New York Education Law § 7802
(“Section 7802”) and (2) proximately caused plaintiff’s injuries
by allowing plaintiff’s massage to be conducted by an unregistered
massage therapist who was not then authorized to practice massage
therapy in New York.

See Betts v. Sixty Lower E. Side, LLC, No.

20 Civ. 4772 (NRB), 2023 WL 5352334, at *13 (S.D.N.Y. Aug. 21,
2023), appeal withdrawn, No. 23-1289, 2024 WL 1152438 (2d Cir.
1

Jan. 22, 2024)

(“August 2023 Opinion”).1

Defendants

request

certification of an interlocutory appeal of that decision.2
ECF No. 90.
94.

Plaintiff opposes defendants’ request.

See

See ECF No.

Having reviewed the parties’ letters dated January 17 and

January 19, 2024, the Court denies defendants’ request because
they have not met the high burden for an interlocutory appeal.3
DISCUSSION
Under 28 U.S.C. § 1292(b), “a district court can certify a
question

for

interlocutory

appeal

if

the

issue

involves

a

controlling question of law as to which there is substantial ground
for difference of opinion and if an immediate appeal from the order
may

materially

litigation.”

advance

the

ultimate

termination

of

the

Murray v. Metro. Life Ins. Co., 583 F.3d 173, 176

(2d Cir. 2009) (alterations and internal quotation marks omitted).
It

is

well

recognized

that

interlocutory

review

is

“a

rare

exception to the final judgment rule that generally prohibits
piecemeal appeals,” and is “reserved for those cases where an

For purposes of this Memorandum and Order, the Court assumes familiarity with
its prior decision, including the factual background described therein.
2 On September 19, 2023, defendants filed a notice of appeal of the August 2023
Opinion. See ECF No. 76. During a November 7, 2023 conference, the Court noted
that an interlocutory appeal would need to be certified by the Court.
The
defendants’ then-pending appeal was addressed again during the Court’s January
16, 2024 conference.
On January 17, 2024, defendants filed a letter brief
requesting an interlocutory appeal, ECF No. 90, and two days later informed the
Court that the pending appeal was withdrawn “[i]n light of the current
application seeking leave to appeal,” ECF No. 95; see also ECF No. 96, January
22, 2024 Mandate of the United States Court of Appeals for the Second Circuit.
3 Given the arguments raised in the parties’ letters, the Court will resolve
the instant dispute based on the letter briefs.
1

2

intermediate appeal may avoid protracted litigation.”

Koehler v.

Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996) (citation
omitted); see also In re Teva Sec. Litig., No. 17 Civ. 558 (SRU),
2021 WL 1197805, at *7 (D. Conn. Mar. 30, 2021) (“The party that
seeks certification under section 1292(b) bears the heavy burden
of demonstrating that the case is an exceptional one in which
immediate appeal is warranted.”) (citation omitted).

In short,

defendants bear an extraordinary burden to justify a request for
interlocutory appeal, which is simply not met here.
The only possible controlling question of law that might be
considered for an interlocutory appeal is whether, pursuant to
Section 7802, defendants can be found negligent per se for allowing
an unregistered massage therapist to perform plaintiff’s massage.
Defendants have not shown that a substantial ground for difference
of opinion exists or even that there is contrary authority to this
Court’s

ruling.

Instead,

defendants

simply

repeat

the

same

arguments initially presented on the summary judgment motion,
namely, that they did not violate Section 7802 by allowing the
unregistered massage therapist, who was not authorized to practice
massage therapy in New York, to perform plaintiff’s massage because
a license for a massage therapist is “for life.”

ECF No. 90 at 4.

The Court explicitly addressed, and rejected, this argument in the
August 2023 Opinion, noting that while “[a] license is issued for
life,” New York also requires that “those who are licensed must
3

register every three years to continue in active practice” and
“permitting the practice of massage therapy by someone who is
licensed but not registered to practice would clearly frustrate
the legislative intent of Section 7802.”
*7 (emphasis in original).

August 2023 Opinion at

While the Court’s application of the

New York Education law may have been novel, “the mere presence of
a disputed issue that is a question of first impression, standing
alone, is insufficient to demonstrate a substantial ground for
difference of opinion.”

Murray v. UBS Sec., LLC, No. 12 Civ. 5914

(KPF), 2014 WL 1316472, at *6 (S.D.N.Y. Apr. 1, 2014) (quoting
Flor v. BOT Fin. Corp. (In re Flor), 79 F.3d 281, 284 (2d Cir.
1996)).
Second

In addition, a reversal of the August 2023 Opinion by the
Circuit

would

not

materially

advance

the

ultimate

termination of the litigation, as issues of liability would remain,
albeit under a different standard, for resolution at trial.
CONCLUSION
Accordingly, the Court denies defendants’ motion.

The Clerk

of Court is respectfully instructed to terminate the motions
pending at ECF Nos. 90, 104-108, and 110-111.
SO ORDERED.
Dated:

June 24, 2024
New York, New York
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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