Betts v. Sixty Lower East Side, LLC et al

Filing 75

MEMORANDUM AND ORDER granting in part and denying in part 56 Motion for Partial Summary Judgment; denying 63 Motion for Summary Judgment. Accordingly, the Court concludes that defendants' conduct constituted negligence per se under New Yo rk Education Law § 7802 and proximately caused plaintiff's injuries. Plaintiff's motion for partial summary judgment is thus granted in part and denied in part, and defendants' motion for summary judgment is denied in its entirety . A teleconference is scheduled for September 21, 2023 at 1:00 p.m. to discuss the damages phase of the case. The Clerk of Court is respectfully instructed to terminate the motions pending at ECF Nos. 56 and 63. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/21/2023) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
MARGARET BETTS,
Plaintiff,
MEMORANDUM AND ORDER

- against SIXTY LOWER EAST SIDE, LLC, SIXTY HOTELS,
LLC, and SIXTY HOTEL MANAGER, LLC,

20 Civ. 4772 (NRB)

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”) on October 19, 2018.

At the time of plaintiff’s

assault, the alleged assailant, Iouri Astakhov, was not registered
or otherwise authorized to practice massage therapy in New York.
While the hotel did not employ Astakhov or any of the other massage
therapists it used to fulfill its guests’ appointment requests, it
advertised massage services on its spa menu, which was placed in
all

hotel

rooms;

arranged

guests’

appointments;

and

handled

payment to the massage therapists it used.
On June 22, 2020, plaintiff filed this negligence action
against defendants Sixty Lower East Side, LLC; Sixty Hotels, LLC;
and Sixty Hotel Manager, LLC (collectively, “defendants”), seeking
1

monetary damages for the physical and emotional injuries she
suffered as a result of the assault.

See ECF No. 1 (“Compl.”).

Presently before the Court are the parties’ cross-motions for
summary judgment on the issue of liability.
Br.”);

64

(“Def.

Br.”).

For

the

See ECF Nos. 59 (“Pl.

reasons

set

forth

below,

plaintiff’s motion for partial summary judgment, which asserts
multiple theories of negligence per se, is granted in part and
denied in part, and defendants’ motion for summary judgment is
denied in its entirety.
BACKGROUND
The following facts are undisputed, unless otherwise noted.1
They are drawn from plaintiff’s Local Civil Rule 56.1 statement
(“Pl. 56.1”), ECF No. 57; defendants’ Local Civil Rule 56.1
counterstatement (“Def. Counter 56.1”), ECF No. 62; defendants’
Local Civil Rule 56.1 statement (“Def. 56.1”), ECF No. 63-1;
plaintiff’s Local Civil Rule 56.1 counterstatement (“Pl. Counter
56.1”), ECF No. 66-1; and admissible materials submitted by the
parties in connection with the present motions.2


1

Pursuant to Local Civil Rule 56.1, the Court treats as admitted the facts set
forth in the Rule 56.1 statements unless “specifically controverted by a
correspondingly numbered paragraph in the statement required to be served by
the opposing party.” Local Civil Rule 56.1(c). In addition, “[e]ach statement
by the movant or opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact, must be followed by
citation to evidence which would be admissible.” Local Civil Rule 56.1(d).
2

In support of her motion for summary judgment, plaintiff submitted the expert
report and affidavit of Lloyd Williams, see ECF Nos. 58-2, 58-3, who describes
himself as a “[r]espected hotelier,” ECF No. 58-2 at 8.
Williams’ report
focuses on the hotel’s alleged departure from the standard for safety and

2

A.
Factual Background
1.
The Parties
Plaintiff is a resident of Illinois.

See Compl. ¶ 9.

From

October 19, 2018 to October 21, 2018, she was a registered guest
at Sixty LES, a luxury hotel located in New York, New York.
Def. 56.1 ¶¶ 10, 37; Pl. Counter 56.1 ¶ 10, 37.

See

Plaintiff stayed

in the hotel’s penthouse suite, which cost her $1,500 per night,
before taxes and fees.

See Pl. 56.1 ¶ 31; Def. Counter 56.1 ¶ 31;

ECF No. 58-16 at 2.
At the time of plaintiff’s stay, the hotel was owned by
defendant Sixty Lower East Side, LLC and managed by defendant Sixty
Hotels, LLC.

See Def. 56.1 ¶¶ 1, 2; Pl. Counter 56.1 ¶¶ 1, 2.

Defendants allege that defendant Sixty Hotel Manager, LLC “did not
own, operate, control, manage or have any other involvement in the
hotel” on October 19, 2018.

Def. 56.1 ¶ 3.

However, defendants

do not cite to any evidence supporting that allegation or otherwise
move to dismiss Sixty Hotel Manager, LLC as an improperly joined
party.

See Pl. Counter. 56.1 ¶ 3.

security measures in the hotel industry.
See ECF No. 58-2 at 2.
In their
opposition to plaintiff’s motion for summary judgment, defendants argue that
Williams’ testimony should be excluded under Daubert. See ECF No. 60 (“Def.
Opp.”) at 7-13. On reply, plaintiff suggests that, “to simplify consideration
of the motion, the Court should set aside” the sections of her motion that
reference Williams’s report and affidavit, “thereby mooting the extensive
objections set forth by the Hotel.” ECF No. 65 (“Pl. Reply”) at 6-7. Because
Williams’ testimony does not need to be considered in order to resolve the
parties cross-motions for summary judgment, the Court need not rule on
defendants’ Daubert objection.

3

2.
Spa Services Offered at the Hotel
At the time of plaintiff’s stay, the hotel had an on-premises
spa, which was “available exclusively to hotel guests.”

See ECF

Nos. 58-5 at 11-12; 63-10 (the “Spa Menu,” available in Appendix
A).

The hotel placed a spa menu in all rooms at the hotel,3

see

Pl. 56.1 ¶ 7; Def. Counter 56.1 ¶ 7, which described the spa as
follows:
Tucked beneath the lobby of SIXTY LES, The SPA at SIXTY
LES is a 1,200 square foot oasis of renewal and
relaxation available exclusively to hotel guests. Our
spa and fitness areas combine aspects of privacy and
modern
luxury.
Complimentary
fitness
and
sauna
facilities are available 24 hours a day, seven days a
week. Advance reservations, via our concierge team, are
required to secure spa services in our single spa
treatment room.
Spa Menu at 2.

However, “the actual treatment room, the private

treatment room, with the massage table . . . was small” and could
only fit one massage table.

ECF Nos. 58-7, 61-2, 63-12 (“Edwards

Depo.”) at 27:6-8; see also ECF No. 58-14 (“Villanueva Depo.”) at
19:1-14.

As a result, massages were offered and often provided in

hotel rooms, which were more spacious than the spa.

See e.g., Spa

Menu at 2 (stating that a “customized massage” is “[a]lso available

3

In their 56.1 statements, both parties stipulated that the spa menu was placed
in all hotel rooms, see Pl. 56.1 ¶ 7; Def. Counter 56.1 ¶ 7, and quoted language
from the spa menu, see Pl. 56.1 ¶ 7; Def. 56.1 ¶ 13; ECF No. 58-5 ¶ 52. However,
plaintiff also argues, without citing any evidence, that defendants have failed
to offer “admissible evidence from a witness with personal knowledge of [whether
the spa menu] was in [plaintiff’s hotel] room on Oct. 19, 2018.” Pl. Counter
56.1 ¶ 13.
The Court rejects plaintiff’s unsupported allegation as it is
exceedingly unlikely that the spa menu was placed in all rooms except for
plaintiff’s room.

4

in [the guest’s] room”); Edwards Depo. at 24:3-14 (noting that
“there was actually no space to do” couples massages at the spa so
couples massages could “only be done if the[] [guests] were staying
in a room that was large enough to have the two tables”); ECF No.
58-13 (“Stuart Depo.”) at 15:1-8 (explaining that massages could
be arranged in guests’ rooms).
The spa was not staffed by any hotel employees.

See Pl. 56.1

¶ 9; Def. Counter 56.1 ¶ 9; Edwards Depo. at 16:25-17:3.

Instead,

all massage services were provided by “independent professionals.”
Spa Menu at 3; see also Pl. 56.1 ¶ 9; Def. Counter 56.1 ¶ 9;
Edwards Depo. at 16:25-17:3.
“consult[s]

with

independent

The spa menu states that the hotel
professionals

who

specialize

in

mobile spa treatments” for “spa services available in [guests’]
room[s],” but does not clarify whether “independent professionals”
are also used for appointments provided at the hotel’s spa.

Spa

Menu at 3.4
At his deposition, Ben Edwards, a concierge at the hotel,
explained that, whenever he received a massage appointment request
from a hotel guest, he would fulfill the request by contacting a
provider

on

the

hotel’s

internal

“list

of

preferred

massage

4

The Court is aware that the second page of the spa menu instructs guests to
“[s]chedule spa appointments at least one hour prior to [their] arrival . . .
to avoid disappointment [as] [t]herapists are called to the hotel upon [their]
request.”
Spa Menu at 3.
However, that instruction does not clarify that
massage therapists are called to the hotel for all massage appointments, not
only in-room massage appointments.

5

therapists.”

See Edwards Depo. at 31:3-4.

Edwards stated that,

in late 2018, he was told to collect massage therapy licenses for
the massage therapists included on that list but stopped the
collection process after obtaining only a few licenses because the
hotel decided to use a massage service known as “Nomi.”

Edwards

Depo. at 38:7-14; 45:6-17; see also Def. 56.1 ¶ 45.
The hotel did not conduct background checks on the massage
therapists they used.

See Def. Br. at 13-15; see also ECF No. 58-

9 (“Grother Depo.”) at 28:9-16, 37:3-17 (stating that the hotel
sometimes “hir[ed] vendors or independent contractors for massage
services” after merely “looking them up either on the Web or
through some sort of third party to find someone that might be
able to fill the services” and that he was “not aware of any”
“background checks on massage therapists sent to Sixty LES”).
Once a massage was completed, the massage therapist would
sign a slip confirming the massage was finished and a front-end
hotel employee would pay the massage therapist.
47; ECF No. 61-2 at 56:15-57:10.

See Def. 56.1 ¶

The cost of the massage would

then be added to the guest’s hotel bill.

See Spa Menu at 3.

3.
Plaintiff’s Request for a Massage Appointment
“At

approximately

[p]laintiff

requested

7:00
an

p.m.

on

[immediate]

October
in-room

19,

2018,

massage

via

[]
a

telephone call to the front desk of [] [d]efendant[s’] Hotel.”
Def. 56.1 ¶¶ 12, 15; Pl. Counter 56.1 ¶¶ 12, 15.
6

Samara Fares,

the front desk agent who received plaintiff’s call, stated at her
deposition that, in response to plaintiff’s request, she asked
plaintiff “the general questions . . . like what time, what type
of massage she would like, and then preference on male or female.”
ECF No. 58-8 (“Fares Depo.”) at 29:10-14.

She did not tell

plaintiff that an outside professional would be used.5

Id. at

31:1-8.
“Hotel staff [then] contacted Valeria Vasilets, who at that
time was an independent contractor” included on the hotel’s list
of preferred massage therapists.

Def. 56.1 ¶ 14; Pl. Counter 56.1

¶ 14; see also ECF No. 63-11 (“Vasilets Depo.”) at 14:16-24.
Vasilets was unable to handle plaintiff’s request, so she called
Astakhov to see if he was available.
Depo. at 24:3-14.

See Def. 56.1 ¶ 17; Vasilets

Astakhov agreed to provide the massage.

See

id.
4.
Iouri Astakhov
At her deposition, Vasilets stated that, prior to October 19,
2018,

she

Astakhov.

had

previously

performed

couples’

See Def. 56.1 ¶ 16; Vasilets Depo. at 22:9-24:14.

described his work as “good” and “successful[].”
at 23:2, 23:8-13, 24:5-6.

5

massages

with
She

Vasilets Depo.

Vasilets also stated that, when she

Defendants allege that the “concierge had a practice of advising guests who
wanted an immediate appointment that the Spa was unstaffed and that the hotel
used outside massage therapists.” Def. 56.1 ¶ 15. However, in her deposition,
Fares stated that advising guests that outside professionals would be used for
their appointments was not her “common practice.” Fares Depo. at 31:1-8.

7

informed the hotel’s front desk agent that Astakhov agreed to
handle the massage, the front desk agent said that she thought she
knew Astakhov from prior work at the hotel.
39:12-20.

At

their

depositions,

See Vasilets Depo. at

additional

hotel

employees

similarly stated that employees knew Astakhov, that the hotel
previously utilized his services, and that the hotel had never
received complaints about Astakhov or any of the other massage
therapists they used.

See Def. 56.1 ¶¶ 35, 44, 49.

Edwards also

recalled that someone named “Yuri” was included on the hotel’s
list of preferred massage therapists.

Edwards Depo. at 37:8-10.

According to publicly available records from the New York
State Office of Professions, Astakhov obtained a license in massage
therapy on October 1, 2008.6
Appendix

B);

Verification

See ECF No. 58-15 at 2 (available at
Search,

N.Y.

Education

Dep’t

https://www.op.nysed.gov/verification-search?licenseNumber=02213
9&professionCode=027 (last accessed August 18, 2023).

However,

his registration expired after November 30, 2013 and was never
renewed.

Id.

Accordingly, at the time of plaintiff’s massage,

6

The Court takes judicial notice of the New York State Office of Profession’s
publicly available records. See e.g., Simeone v. T. Marzetti Co., No. 21 Civ.
9111 (KMK), 2023 WL 2665444, at *1 (S.D.N.Y. Mar. 28, 2023 (“‘Courts may take
judicial notice of public documents or documents of public record’ in addition
to ‘records of administrative bodies,’ such as government agencies”) (quoting
Casey v. Odwalla, Inc., 338 F. Supp. 3d 284, 294 (S.D.N.Y. 2018)); Weisman
Celler Spett & Modlin, P.C. v. Trans-Lux Corp., No. 12 Civ. 5141 (JMF), 2014 WL
476348, at *2 n.1 (S.D.N.Y. Feb. 6, 2014) (“[T]he Court may take judicial notice
of public records.”); Simon v. Smith & Nephew, Inc., 990 F. Supp. 2d 395, 401
n.2 (S.D.N.Y. 2013) (taking judicial notice of public records contained on the
FDA’s website) (citing Gale v. Smith & Nephew, Inc., No. 12 Civ. 3614 (VB), 989
F. Supp. 2d 243, 246 n. 2 (S.D.N.Y. Feb. 13, 2013)).

8

Astakhov was not registered to practice massage therapy in New
York.

Id.

Neither party has presented any evidence indicating that
Astakhov had a criminal record or had been accused of criminal
conduct at the time of plaintiff’s massage.

See Def. 56.1 ¶¶ 29,

30; Pl. Counter 56.1 ¶¶ 29, 30.
5.
Plaintiff’s Alleged Sexual Assault
“[O]n October 19, 2018, during [her] in-room massage provided
by Iouri Astakhov, [plaintiff] alleges to have been subjected to
improper touching and sexual assault.” Def. 56.1 ¶ 31; Pl. Counter
56.1 ¶ 31.

Plaintiff subsequently reported the assault to the

police and the hotel.

See Def. 56.1 ¶¶ 38, 39; Pl. Counter 56.1

¶¶ 38, 39; ECF No. 58-6 (“Betts Depo.”) at 22:2-25 (discussing her
reporting of the assault to the police and hotel); ECF No. 58-12
(“Riley Depo.”) at 21:6-22:20 (describing plaintiff’s report to
the hotel); Def. Br. at 7 (“[Plaintiff’s assault] was first
reported to the hotel four (4) days [after the assault] and
resulted in a criminal investigation by the New York City District
Attorney’s office.”).7
6.
The Hotel’s Investigation into Plaintiff’s Complaint
At his deposition, Nicholas Riley, the general manager of the
hotel, stated that the hotel did not have a formal policy for
7

The New York City District Attorney’s office conducted an investigation into
plaintiff’s complaint, but criminal charges were not brought. See Def. Br. at
7.

9

investigating guests’ complaints.

See Riley Depo. at 40:8-22.

However, after the hotel received plaintiff’s complaint, they
looked into “who booked the massage therapist, what room they went
to, how they went up, [and] things of that nature.”
14.

Id. at 40:11-

Through that process, Mr. Riley did not learn Astakhov’s

identity and thus could not identify him during his deposition on
January 13, 2021.

See id. at 41:2-10.

As a result, Astakhov was

not identified to plaintiff until Vasilets’ deposition on February
8, 2021 -- approximately two-and-a-half years after the sexual
assault occurred.

See Vasilets Depo. at 22:2-8; Def. Counter 56.1

¶ 47.
B.
Procedural Background
In her complaint of June 22, 2020, plaintiff asserts a single
See Compl.8

claim of negligence.

She claims that that defendants

“breached their duty to protect [her] from criminal acts” by:
(i) ”[f]ailing to ascertain the identity of [Astakhov] prior to
hiring him to interact with Ms. Betts while she was unclothed,
alone,

and

vulnerable”;

(ii)

“[h]iring

[Astakhov]

to

provide

8

The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1332, which grants district courts original jurisdiction over cases between
citizens of different states in which the amount in controversy exceeds
$75,000. See 28 U.S.C. § 1332(a).
Complete diversity exists between the
parties as plaintiff is a citizen of Illinois and defendants’ members are
citizens of New York and New Jersey. See Compl. ¶ 9; ECF No. 74 (affidavits
affirming defendants’ members are citizens of New York and New Jersey);
Bayerische Landesbank, New York Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42,
49 (2d Cir. 2012) (providing that the citizenship of a limited liability company
is based on the citizenship of its members).
In addition, the amount in
controversy exceeds $75,000. See Compl. ¶ 13.

10

massage services to Ms. Betts in her hotel suite without first
investigating his certifications or criminal history or otherwise
screening [him] in any way”; (iii) ”[r]ecommending, hiring, and
allowing [Astakhov] to provide massage services to Ms. Betts in
her hotel suite without first informing Ms. Betts that [his]
identity was unknown and that Sixty LES had not investigated his
certifications or criminal history”; (iv) ”[f]alsely assuring Ms.
Betts that hotel spa services could be safely provided in-room”;
(v) ”[p]roviding [Astakhov] with unsupervised access to Ms. Betts’
suite to perform hotel spa services”; and (vi) ”[f]ailing to ensure
that reasonable and prudent policies and procedures were put into
place

for

screening

Sixty

LES’s

in-room

massage

therapists,

ascertaining the identity of in-room massage therapists employed
by the hotel, and investigating claims of sexual assault on hotel
guests by Sixty LES’s massage therapists, including polices that
would

insure

that

any

employee

or

agent

of

the

perpetrates a sexual assault could be identified.”
Plaintiff

further

alleges

that

her

“sexual

hotel

that

Id. ¶ 58.

assault

was

the

foreseeable consequence of Defendants’ failure to exercise the
requisite standard of care,” id. ¶ 59, and resulted in “serious
physical, emotional, and mental trauma requiring professional
medical treatment, including, but not limited to, posttraumatic
stress disorder, physical injuries, pain and suffering, severe and
debilitating mental distress, physical and mental trauma, shock,
11

numbness,

fear,

disassociation,

anxiety,
loss

of

involuntary
trust,

and

intrusive

sleeplessness,

memories,

flashbacks,

diminished interest in travel and other pre-trauma activities,
disruption to her normal routines, interference with personal
relationships, anger, and depression,” id. ¶ 44; see also id. ¶ 60.
Defendants filed an answer to plaintiff’s complaint with 27
affirmative defenses on August 21, 2020, see ECF No. 17, and an
initial pretrial conference was held on September 15, 2020, see
ECF No. 18.

Shortly thereafter, the parties began discovery,

pursuant to a September 21, 2020 scheduling order.

See ECF No.

22.9 During the course of discovery, defendants informed plaintiff
that they do not possess: any documents concerning Astakhov’s
“background,

criminal

history,

or

employment

history”;

any

“contracts and agreements between [Astakhov] and any defendant”;
any communications between defendants or any of their agents and
Astakhov; any records reflecting in-room massage services provided
by Astakhov; or any complaints concerning Astakhov or any other
massage therapist used by the hotel.

See ECF No. 58-4 at 4-6.

9

The Court granted multiple requests by the parties for extensions of their
discovery deadlines, see ECF Nos. 25, 34, and resolved several discovery
disputes, see ECF Nos. 27, 30-32. Specifically, the Court granted plaintiff’s
letter motion to compel the remote deposition of Vasilets on January 21, 2021,
see ECF No. 27, and denied defendants’ motion to quash the subpoena of Edward
Maynard, defendants’ former President of Operations, on February 16, 2021, see
ECF No. 31. During a February 25, 2021 conference, the Court also addressed
plaintiff’s request to compel the production of additional materials that were
referenced during depositions. See ECF Nos. 30, 32.

12

After fact discovery was substantially completed,10 the Court
granted plaintiff’s request on April 27, 2021 to stay the expert
discovery schedule in light of the parties’ efforts to mediate the
case.

See ECF No. 36 at 2.

Once the parties’ mediation concluded

unsuccessfully, the Court granted both parties leave to file
motions for summary judgment.
Plaintiff

filed

December 16, 2022.

her

See ECF No. 53.11
motion

for

See ECF Nos. 56-59.

summary

judgment

on

On January 12, 2023,

defendants opposed plaintiff’s motion and filed a cross-motion for
summary judgment.

See ECF Nos. 60-64.

Plaintiff filed a reply in

support of her motion and opposed defendants’ motion on January
26, 2023.

See ECF Nos. 65-66.

Defendants filed a reply in support

of their motion on February 8, 2023.

10

See ECF Nos. 67-68.

At the time, the only remaining item needed to complete fact discovery was
to serve Astakhov, who had not been located, with a subpoena for his deposition.
See ECF No. 38 at 1-2.

11

Defendants first requested leave to file a motion for summary judgment on
June 17, 2021.
See ECF No. 37.
In response, plaintiff asked the Court to
instead refer the case to mediation. See ECF No. 38. After defendants agreed
to mediate the case on December 22, 2021, see ECF No. 41, the Court referred
the case to the Court-annexed Mediation Program on December 27, 2021, see ECF
No. 42. As noted, the parties’ mediation, which was held on June 3, 2022, was
unsuccessful. See ECF Nos. 45-46. Thus, on August 18, 2022, defendants renewed
their request for a pre-motion conference concerning their anticipated motion
for summary judgment. See ECF No. 46. The Court held a conference on September
20, 2022, during which it granted defendants’ request for leave to file a motion
for summary judgment. On October 24, 2022, plaintiff also requested leave to
file a motion for summary judgment, which defendants opposed. See ECF Nos. 5152. On November 7, 2022, the Court granted plaintiff leave to file her motion
and set a briefing schedule on both motions. See ECF No. 53.

13

LEGAL STANDARD
A.
Summary Judgment
Under Federal Rule of Civil Procedure 56(a), summary judgment
is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

“A genuine issue of material

fact exists if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’”

Nick’s Garage, Inc.

v. Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir. 2017)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).

“Factual disputes that are irrelevant or unnecessary

will not be counted.”

Anderson, 477 U.S. at 248.

“The burden of showing that no genuine factual dispute exists
rests on the party seeking summary judgment.”

Sec. Ins. Co. of

Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d
Cir. 2004).

“In moving for summary judgment against a party who

will bear the ultimate burden of proof at trial, the movant’s
burden will be satisfied if he can point to an absence of evidence
to support an essential element of the nonmoving party’s claim.”
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d
Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 32223, (1986)); accord PepsiCo, Inc. v. Coca–Cola Co., 315 F.3d 101,
105 (2d Cir. 2002).

“[I]n assessing the record to determine

whether there is a genuine issue as to a material fact, the court
14

is required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.”

Sec. Ins. Co. of Hartford, 391 F.3d at 83.

Once the moving party has satisfied their burden, to defeat
the motion, “the party opposing summary judgment . . . must set
forth ‘specific facts’ demonstrating that there is ‘a genuine issue
for trial.’”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(quoting Fed. R. Civ. P. 56(e)).

“Conclusory allegations will not

suffice to create a genuine issue.”

Delaware & Hudson Ry. Co. v.

Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990).

There must

be more than a “scintilla of evidence in support of the [nonmovant’s] position”;

“there must be evidence on which the jury

could reasonably find for the [non-movant].” Anderson, 477 U.S. at
252.

In other words, the non-movant “must do more than simply

show that there is some metaphysical doubt as to the material
facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986).

“If no rational fact finder could find in

the non-movant’s favor, there is no genuine issue of material fact,
and summary judgment is appropriate.” Citizens Bank of Clearwater,
927 F.2d at 710.
“The same standard of review applies when,” as here, “the
court is faced with cross-motions for summary judgment.”

Bell v.

Pham, No. 09 Civ. 1699 (PAC), 2011 WL 1142857, at *2 (S.D.N.Y.
Mar. 24, 2011) (citing Morales v. Quintel Entm’t, Inc., 249 F.3d
15

115, 121 (2d Cir. 2001)).
on

its

own

merits,

and

“Each party’s motion must be reviewed
the

Court

must

draw

all

reasonable

inferences against the party whose motion is under consideration.”
Id.
B.
Negligence
“To establish a prima facie case of negligence under New York
law, ‘a plaintiff must demonstrate (1) a duty owed by the defendant
to the plaintiff, (2) a breach thereof, and (3) injury proximately
resulting therefrom.’”

Lerner v. Fleet Bank, N.A., 459 F.3d 273,

286 (2d Cir. 2006) (quoting Solomon ex rel. Solomon v. City of New
York, 66 N.Y.2d 1026, 1027 (N.Y. 1985)).

“The plaintiff need not

offer direct evidence in support of each element of its negligence
claim.”

Clark v. Target Corp., No. 18 Civ. 5865 (NRB), 2020 WL

2115348, at *3 (S.D.N.Y. May 4, 2020).

Rather, “it is enough that

[plaintiff] shows facts and conditions from which the negligence
of the defendant . . . may be reasonably inferred.”

Id. (first

quoting Kramer v. Showa Denko K.K., 929 F. Supp. 733, 747 (S.D.N.Y.
1996), and then quoting Schneider v. Kings Highway Hosp. Ctr.,
Inc., 67 N.Y.2d 743, 744 (N.Y. 1986)).
C.
Negligence Per Se
“In New York, the ‘unexcused omission’ or violation of a duty
imposed by statute for the benefit of a particular class ‘is
negligence itself.’”

Chen v. United States, 854 F.2d 622, 627 (2d

Cir. 1988) (quoting Martin v. Herzog, 228 N.Y. 164, 168 (N.Y.
16

1920)) (emphasis in original).

“Violation of a statute, however,

does not automatically constitute negligence per se.”

German by

German v. Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385, 1396
(S.D.N.Y. 1995).

“Only statutes designed to protect a definite

class of persons from a particular hazard, which persons within
the class are incapable of avoiding, can give rise to negligence
per se for violation of the statute.”

Id. (citing Van Gaasbeck v.

Webatuck Central Sch. Dist. No. 1 of Towns of Amenia, 21 N.Y.2d
239, 244 (N.Y. 1967)).

In other words, “the statute must evidence

‘an intention, express or implied, that from disregard of [its]
command a liability for resultant damages shall arise ‘which would
not exist but for the statute.’”

Id. at 1397 (first quoting Gain

v. Eastern Reinforcing Serv., 193 A.D.2d 255 (3d Dep’t 1993), and
then quoting Shepard v. Zachary P. Taylor Publ. Co., 234 N.Y. 465,
468 (N.Y. 1923)).

“Three factors are of central importance in

this inquiry: (1) whether the plaintiff is one of the class for
whose particular benefit the statute was enacted, (2) whether a
finding of negligence per se for violation of the statute would
promote the legislative purpose, and (3) whether creation of such
liability would be consistent with the legislative scheme.”

Id.

In addition, “a causal relation between the violation and the harm
to the plaintiff [must] be established.”

17

Id. at 1396.

DISCUSSION
In her motion, plaintiff argues that “the negligence per se
doctrine entitles [her] to summary judgment” on liability on the
grounds that that the hotel violated: (i) New York Education Law
§ 7802, which prohibits entities claiming to be engaged in the
practice of massage therapy from advertising services unless those
services

are

performed

by

persons

licensed

or

authorized

to

practice under New York law; and (ii) New York Education Law
§ 6512(2), which makes it a felony for anyone to knowingly aid or
abet three or more unlicensed persons from practicing a profession
that requires a professional license.

See Pl. Br. at 6, 11.

In

turn, defendants argue that summary judgment should be granted in
their favor because: (i) defendants cannot be held liable on a
respondent superior theory; (ii) defendants cannot be held liable
under a negligent supervision or retention theory; and (iii) there
is no common law duty to conduct background checks of employees or
independent contractors before engaging them.
16.

See Def. Br. at 9-

Each motion is addressed below.

A.
Plaintiff’s Motion for Summary Judgment
As noted, plaintiff argues that she is entitled to partial
summary judgment on the grounds that defendants’ conduct violated
two sections of New York’s Education Law -- § 7802 and § 6512(2)
-- and thus constituted negligence per se.

See Pl. Br. at 6, 11.

To begin, the Court reviews New York laws that are relevant to its
18

negligence

per

se

analysis.

Then,

it

considers

plaintiff’s

arguments arising from Sections 7802 and 6512(2).
1.
Relevant New York Laws
i.

License and Registration Requirements

The New York laws governing the profession of massage therapy
are provided in New York’s Education Law at Title 8, Article 155,
which spans §§ 7800-7807.

See N.Y. Education Law § 7800 (“This

article applies to the profession of massage therapy.”).

Those

laws impose strict licensing and registration requirements on
those engaged in the practice of massage therapy.

See id. § 7802.

Pursuant to Section 7804, “[t]o qualify for a license as a
massage

therapist,

masseur

or

masseuse,”

an

applicant

must:

(1) file an application with New York’s Education Department;
(2) complete various education requirements, consisting, in part,
of “classroom instruction of a total of not less than five hundred
hours in subjects satisfactory to the department”; (3) pass an
examination;

(4)

be

at

least

18

years

of

age;

(5)

meet

a

citizenship or immigration status requirement; (6) “be of good
moral character as determined by the department”; and (7) pay fees
for an initial license, an examination, and registration each
triennial registration period.

Id. § 7804.

Certain exceptions to

the general licensing requirement are provided in Section 7805 for
discrete groups of individuals, such as medical professionals,

19

barbers, and athletic trainers.12

Id. § 7805.

An unlicensed

massage therapist who does not fit into one of those exceptions
can only practice in New York if New York’s Education Department
issues them a “limited permit to practice massage therapy as a
licensed

massage

therapist,

masseur

or

masseuse”

“under

the

personal supervision of a person currently licensed and registered
to practice massage therapy in [New York].”

Id. § 7806(1), (3).

“The limited permit shall be valid for a period of not more than
twelve

months

examination

for

or

until

which

the

the

results

person

available, whichever comes first.”

is

of

the

next

licensing

are

officially

eligible

Id. § 7806(2).

“A license is issued for life.” Frequently Asked Questions,
N.Y.

Education

Dep’t,

https://www.op.nysed.gov/professions/

massage-therapy/questions-answers (last accessed August 18, 2023).
However, “those who are licensed must register every three years
to continue in active practice.”

Id.

Indeed, “[r]egistration

identifies to the Department and consumers that [a licensed massage
therapist is] actively using these titles and terms and [is]
engaged in practice in the State, or plan[s] to do so.”

Id.

Pursuant to Section 7807, “[e]ach massage therapist licensed
pursuant to this article [is] required to register triennially
with the department to practice in the state,” “comply with the


12

Neither party argues that any of the statutory exceptions to licensure apply
to Astakhov.

20

provisions of the mandatory continuing education requirements
prescribed in [its] subdivisions,” and pay a “mandatory continuing
education fee” and “triennial registration fee.” Id. § 7806(1)(a),
(6).

“Massage

therapists

who

do

not

satisfy

the

mandatory

continuing education requirements shall not practice until they
have

met

such

requirements,

registration certificate.”

and

they

have

been

issued

a

Id. § 7806(1)(a) (emphasis added).

Massage therapists are required to “have a current registration
certificate available for inspection at all times.”

8 NYCRR

§ 59.8(c).
The only way a licensed massage therapist who has failed to
renew their registration may continue practicing is if “[t]he
department,

in

its

discretion,

[]

issue[s]

a

conditional

registration to [that] licensee,” after the massage therapist
“agrees to make up any deficiencies and complete any additional
education which the department may require.”
§ 7807(3).

N.Y. Education Law

“The duration of such conditional registration shall

be determined by the department but shall not exceed one year.”
Id.

“Any licensee who is notified of the denial of registration

for failure to submit evidence, satisfactory to the department, of
required

continuing

education

and

who

practices

without

such

registration, may be subject to disciplinary proceedings.”

Id.

In addition, “[p]racticing a profession without a license and
current registration is a felony in New York State.”
21

Professional

Misconduct

Enforcement,

N.Y.

Education

Dep’t,

https://www.op.

nysed.gov/enforcement/professional-misconduct-enforcement
accessed

August

18,

2023)

(emphasis

added)

(last

(hereinafter

“Professional Misconduct Enforcement”).
ii.

The

Prohibition on Sexual Touching
New

Practice

York

(the

therapists

Department

“Guidelines”)

will

avoid

of

Education’s

clearly
exerting

state

Guidelines
that

undue

for

“[m]assage

influence

on

patients/clients”; “will never engage in sexual behavior during
the course of the professional relationship”; and “should not
engage in sexual conduct or activities, even if the patient/client
attempts to sexualize the relationship.”

Guidelines for Practice,

N.Y. Education Dep’t, https://www.op.nysed.gov/professions/mass
age-therapy/guidelines-practice (last accessed August 18, 2023)
(hereinafter, “Guidelines for Practice”).

In addition, “[n]o

manipulation of the genital areas is permitted, even at the
patient’s/client’s request.”

Id.

Both the Guidelines and the Rules of the Board of Regents
state that “[m]assage of genital areas” is “immoral conduct.” Id.;
8 NYCRR § 29.13.
practice

of

a

“Immoral conduct” is defined as “conduct in the
profession

practice the profession.”

which

moral

Id. § 29.1(b)(5).

“unprofessional” and “prohibited.”

22

evidences

unfitness

to

Such conduct is

Id. § 29.1(a).

2.
N.Y. Education Law § 7802
The

Court

next

addresses

plaintiff’s

argument

that

defendants’ conduct constituted negligence per se under New York
Education Law § 7802 and proximately caused plaintiff’s injuries.
Section 7802 states:
Only a person licensed or authorized pursuant to this
chapter shall practice massage therapy and only a person
licensed under this article shall use the title
“masseur,” “masseuse” or “massage therapist.” No person,
firm, partnership or corporation claiming to be engaged
in the practice of massage or massage therapy shall in
any
manner
describe,
advertise,
or
place
any
advertisement for services as defined in section
seventy-eight hundred one of this article unless such
services are performed by a person licensed or
authorized pursuant to this chapter.13
N.Y. Education Law § 7802.

In other words, an entity violates

Section 7802 if it: (i) claims to be engaged in the practice of
massage therapy; (ii) advertises massage therapy services; and
(iii) allows for those massage therapy services to be performed by
a person who is not “licensed or authorized” pursuant to New York’s
Education Law.

Id.

Here, the first two prongs are easily met.

There is no

dispute that the hotel placed a spa menu in all rooms at the hotel,
see Pl. 56.1 ¶ 7; Def. Counter 56.1 ¶ 7, in which the hotel claimed

13

New York Education Law § 7801, referenced therein, broadly defines massage
therapy as “engaging in applying a scientific system of activity to the muscular
structure of the human body by means of stroking, kneading, tapping and
vibrating with the hands or vibrators for the purpose of improving muscle tone
and circulation.” N.Y. Education Law § 7801.

23

to be engaged in massage services, see Spa Menu at 2 (describing
“[t]he SPA at SIXTY LES [as] a 1,200 square foot oasis of renewal
and relaxation available exclusively to hotel guests” that is
“[t]ucked beneath the lobby of SIXTY LES”).

The spa menu also

advertises the various massage services offered at the hotel,
including in-room massage appointments.

See id. at 3.

Although

the hotel used independent contractors and not employees to fulfill
its guests’ appointment requests, Section 7802 does not limit its
applicability to only entities that employ massage therapists.
See N.Y. Education Law § 7802.
The last prong, which prohibits individuals who are not
“licensed or authorized” under New York’s Education Law from
performing massage services, has also been satisfied.

Although

Astakhov obtained a license to practice massage therapy in 2008,
his registration expired after November 30, 2013 and was never
renewed.

See ECF No. 58-16 at 2.

While the Court understands that Section 7802 mandates that
an

individual

is

“licensed

or

authorized”

under

New

York’s

Education Law, see N.Y. Education Law § 7802 (emphasis added),
reading the “or” between “licensed” and “authorized” as 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 as well as Article 155 more broadly, see
Willis v. United States, 719 F.2d 608, 612-13 (2d Cir. 1983) (“It
24

is settled that ‘or’ may be read to mean ‘and’ when the context so
indicates.”) (citing De Sylva v. Ballentine, 351 U.S. 570, 573–74
(1956); Union Insurance Co. v. United States, 73 U.S. 759, 764
(1868); United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir.
1979),

cert.

denied,

446

U.S.

954

(1980);

and

1A

C.

Sands,

Sutherland Statutes and Statutory Construction § 21.14, at 91 (4th
ed. 1972)); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433,
438 n.13 (2d Cir. 1974) (“It is true that the Supreme Court has
noted that ‘the word ‘or’ is often used as a careless substitute
for the word ‘and’ . . .’ and has therefore rewritten statutes
where necessary to avoid obvious contradiction and to effectuate
congressional intent.”) (citing De Sylva, 351 U.S. at 573–80).
The legislature may have used “or” in Section 7802 to allow
unlicensed massage therapists to be nevertheless authorized to
practice in New York under a statutory exception.

However, it is

simply inconceivable that Section 7802 is intended to create a new
exception for unregistered massage therapists, whose practice in
New York is explicitly banned under Section 7807 and would qualify
as

a

felony.

See

N.Y.

Misconduct

Enforcement.

defendants

violated

Education

Law

§

As

the

Court

Section

such,
7802

by

7807;

allowing

Professional

concludes
Astakhov,

that
an

unregistered massage therapist who was not authorized to practice
massage therapy in New York, to perform plaintiff’s massage.

25

Moreover, plaintiff was clearly within the class of persons
that Section 7802 is intended to protect.
896 F. Supp. at 1396.

See German by German,

New York’s massage therapy laws are

certainly intended, at least in part, to protect massage therapy
clients, who are often unclothed and in a vulnerable position
during massages, from being subjected to inappropriate sexual
touching and other forms of immoral conduct.

See 8 NYCRR § 29.13;

(prohibiting sexual touching during massage therapy); Guidelines
for Practice (same); Dillon v. Kim, 158 Misc. 2d 711, 717 (Sup.
Ct., Nassau Cnty., June 23, 1993) (“[T]he purpose underlying the
promulgation of Article 155 of the Education Law, which provides
for the licensure of persons practicing the profession of massage
. . . is to insure the welfare and safety of persons seeking, not
touching of a sexual nature, but rather massage therapy free of
sexual or other inappropriate contact.”).

Indeed, “[a] person who

receives massage therapy in their . . .

hotel room relies upon

the licensure statutes in that he or she has an expectation that
the person performing the massage has proven that he or she has
certain skills and is of good moral character; the client relies
on the license to protect him or herself from harmful and/or sexual
touching.”

Dillon, 158 Misc. 2d at 717.

Finding negligence per

se for defendants’ violation of Section 7802 would therefore
promote the legislative purpose of the statute and be consistent
with the legislative scheme.

See German by German, 896 F. Supp.
26

at 1396.

Accordingly, the Court finds defendants negligent per se

based on their violation of Section 7802.14
Finally, there is no question that defendants’ “violation of
the statute was the proximate cause of the plaintiff’s injury.”
Id.

“Although we acknowledge that the issue of proximate cause is

usually determined by a jury, where, as here, the facts are
undisputed, the question becomes one for the court.”

Comolli v.

81 & 13 Cortland Assocs. L.P., 285 A.D.2d 863, 864 (3d Dep’t 2001)
(internal citations omitted); see also Lawler v. Globalfoundries
U.S., Inc., No. 12 Civ. 0327 (LEK) (RFT), 2014 WL 4900480, at *8
(N.D.N.Y. Sept. 30, 2014)(“Based on these facts, no rational
factfinder could conclude that the absence of a safety device was
not at least one proximate cause of Lawler's accident.”); Rivera
v. City of New York, 11 N.Y.2d 856, 857 (1962) (“Where the evidence
as

to

the

cause

of

the

accident

which

injured

plaintiff

is

undisputed, the question as to whether any act or omission of the
defendant was a proximate cause thereof is one for the court and
not for the jury.”); Chainani by Chainani v. Bd. of Educ. of City
of New York, 201 A.D.2d 693, 695, (2d Dep’t 1994), aff’d, 87 N.Y.2d
370 (1995) (holding that “there was no basis for the jury to


14

The Second Circuit has previously found violations of the New York Education
Law can constitute negligence per se. See e.g., Ezagui v. Dow Chemical Corp.,
598 F.2d 727, 733 (2d Cir. 1979); cf. Ades v. 57th St. Laser Cosmetica, LLC,
No. 11 Civ. 8800 (KNF), 2013 WL 2449185, at *11 (S.D.N.Y. June 6, 2013) (finding
“evidence exists tending to show either negligence per se or absolute liability”
on the grounds that plaintiff violated New York law by performing a treatment
on plaintiff without a “valid esthetics license”).

27

conclude that [a bus driver’s] violation of the statute [requiring
him to instruct passengers to cross in front of the bus] was not
a proximate cause of the accident”).
Simply put, if defendants had verified whether Astakhov was
authorized to practice in New York, as is required under Section
7802, they would have learned he was not and thus could not have
lawfully

permitted

Astakhov

to

perform

plaintiff’s

massage.

Furthermore, given the licensing and registration requirements set
forth in Article 155 are specifically intended, at least in part,
to prevent sexual misconduct, it was reasonably foreseeable that
plaintiff’s assault could result from permitting an individual who
was not authorized to practice in New York to perform her massage.
See Vaneria v. Consol. Edison Co. of New York, No. 120968/97, 1999
WL 292644, at *3 (Sup. Ct., N.Y. Cnty. Feb. 10, 1999) (finding
harm was “readily foreseeable”).

Thus, “a reasonable jury could

reach only one conclusion”: defendants’ violation of Section 7802
proximately caused plaintiff’s assault.

Packer v. Skid Roe, Inc.,

938 F. Supp. 193, 196 (S.D.N.Y. 1996).15

Accordingly, plaintiff’s

motion for partial summary judgment is granted on the basis that

15

In connection with the issue of proximate cause, the parties dispute whether
plaintiff was put on notice that Astakhov was an independent contractor and, if
so, whether plaintiff would have consented to receiving a massage from an
unlicensed, independent contractor. See Pl. Br. at 13-14; Def. Opp. at 19-20;
Pl. Reply at 13-14. Proximate cause does not turn on either issue, and thus
the Court need not address these arguments.

28

defendants’ conduct constituted negligence per se under Section
7802 and proximately caused plaintiff’s injuries.
3.
N.Y. Education Law § 6512(2)
The Court now turns to plaintiff’s argument that she is also
entitled

to

summary

judgment

on

the

grounds

that

defendants

violated New York Education Law § 6512(2). Section 6512(2) states:
Anyone who knowingly aids or abets three or more
unlicensed persons to practice a profession or employs
or holds such unlicensed persons out as being able to
practice in any profession in which a license is a
prerequisite to the practice of the acts, or who
knowingly aids or abets three or more persons to practice
any profession as exempt persons during the time when
the professional licenses of such persons are suspended,
revoked or annulled, shall be guilty of a class E felony.
N.Y. Education Law § 6512(2).

At a minimum, plaintiff has not

established that: (i) defendants acted “knowingly”; or (ii) that
defendants aided and abetted “three or more” unlicensed persons in
the practice of massage therapy.
With respect to the knowledge requirement, plaintiff has
presented no evidence that defendants knew that Astakhov or any of
the other massage therapists it used were not authorized to
practice massage therapy in New York. At best, plaintiff has shown
that

the

hotel

routinely

failed

to

verify

that

the

massage

therapists it used were authorized to practice massage therapy in
New York. Plaintiff has not established that such reckless conduct
satisfies Section 6512(2)’s knowledge requirement.
29

In addition, plaintiff has not established that the hotel
used “three or more” massage therapists who were not authorized to
practice.

Relying only on the deposition testimony of Edwards and

Vasilets, plaintiff contends that, of all the preferred massage
therapy providers used by the hotel, only “one or two” were
licensed.

See Pl. Br. at 12; Pl. 56.1 ¶ 24.

However, plaintiff’s

reliance on Edwards and Vasilets’ testimony is misplaced.

With

respect to Edwards’ testimony, plaintiff majorly mischaracterizes
the record.

Indeed, Edwards never said that “only one or two” of

the roughly ten independent contractors who performed massages
were licensed.
¶ 45.

See Edwards Depo. at 38:7-14; 45:6-17; Def. 56.1

Rather, he stated the hotel collected only a few licenses

from the massage therapists it used, before utilizing a service
called “Nomi.” See id. And, even if the Court accepts plaintiffs’
argument that Vasilets, who was regularly used by the hotel and
had an out-of-state license, was also not authorized to practice
in New York, plaintiff would have only presented evidence that two
massage therapists -- not “three or more” -- were used by the
hotel.

See Pl Reply at 10; Vasilets Depo. at 28:7-16.

As such,

plaintiff’s motion for partial summary judgment on the grounds
that defendants violated N.Y. Education Law § 6512(2) is denied.
B.
Defendants’ Motion for Summary Judgment
In their motion, defendants argue that they are entitled to
summary judgment because: (i) defendants cannot be held liable on
30

a

respondent

superior

theory;

(ii) defendants

cannot

be

held

liable under a negligent supervision or retention theory; and
(iii) there is no common law duty to conduct background checks of
employees or independent contractors before engaging them.
Def. Br. at 9-16.

See

The Court agrees with defendants’ basic points.

First, “New York courts consistently have held that sexual
misconduct

and

related

tortious

behavior

arise

from

personal

motives and do not further an employer’s business, even when
committed within the employment context.”

Swarna v. Al-Awadi, 622

F.3d 123, 144-45 (2d Cir. 2010) (quoting Ross v. Mitsui Fudosan,
2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998)); see also Edwardo v. Roman
Cath. Bishop of Providence, 579 F. Supp. 3d 456, 470 (S.D.N.Y.
2022) (“[U]nder New York law, Fr. Magaldi’s sexual abuse — however
reprehensible — cannot be considered to have been committed ‘for
the

benefit’

of

Defendants,

and

cannot

be

attributed

to

Defendants.”), aff’d, 66 F.4th 69 (2d Cir. 2023); Adorno v. Corr.
Servs. Corp., 312 F. Supp. 2d 505, 517 (S.D.N.Y. 2004) (“New York
courts have repeatedly found no vicarious liability for claims
involving sexual misconduct, including sexual assault.”); Judith
M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (N.Y. 1999)
(finding

hospital

orderly

tasked

with

bathing

the

plaintiff

“departed from his duties for solely personal motives unrelated to
the furtherance of the Hospital's business” when he sexually abused
plaintiff).
31

To avoid the conclusion that sexual assault is not inside the
scope of employment, plaintiff argues, without citing to any
evidence,

that

“[a]t

trial,

after

cross-examination

of

its

witnesses, the jury might rationally conclude that the reason the
Hotel did not use licensed massage therapists, nor keep any records
on those it engaged to provide services, [w]as that it was in
actuality running a discreet, ‘happy ending,’” massage service,
perhaps even a thinly veiled prostitution ring,” which conferred
a benefit to the hotel.

ECF No. 66 (“Pl. Opp.”) at 7.

The Court

firmly rejects plaintiff’s baseless allegation.
As an initial matter, plaintiff misunderstands the parties’
respective burdens on summary judgment.

Given defendants are

“moving for summary judgment against [plaintiff,] who will bear
the ultimate burden of proof at trial, [defendants’] burden will
be satisfied if [they] can point to an absence of evidence to
support an essential element of [plaintiff’s] claim.”

Goenaga, 51

F.3d at 18 (citing Celotex Corp., 477 U.S. at 322-23).

Once

defendants meet their burden, plaintiff “must set forth ‘specific
facts’ demonstrating that there is ‘a genuine issue for trial’” to
defeat defendants’ motion.
R. Civ. P. 56(e)).

Wright, 554 F.3d at 266 (quoting Fed.

Here, plaintiff has utterly failed to “plead

more than conclusory allegations and present sufficient facts to
create a reasonable inference that [the hotel’s] business included
sex crimes.”

Alsaud, 12 F. Supp. 3d at 678.
32

Furthermore, the hypothetical and unsupported criminal scheme
that plaintiff invents would only confer a benefit to the hotel if
it involved consenting, willing customers.
no

‘business

purpose’

which

‘alone’

“[T]here is [plainly]

would

have

compelled”

[Astakhov] to sexually assault Plaintiff,” and the Court refuses
to allow plaintiff to concoct such an unbelievable, and frankly
offensive, tale at trial. Chen v. Cai, No. 19 Civ. 05387 (PMH),
2022 WL 917575, at *4 (S.D.N.Y. Mar. 28, 2022).

Therefore, the

Court concludes that defendants cannot be held liable on a theory
of respondent superior for Astakhov’s sexual misconduct.
Second, “[t]o state a claim for negligent supervision or
retention under New York law, in addition to the standard elements
of negligence, a plaintiff must show: (1) that the tort-feasor and
the defendant were in an employee-employer relationship; (2) that
the employer knew or should have known of the employee’s propensity
for the conduct which caused the injury prior to the injury’s
occurrence; and (3) that the tort was committed on the employer’s
premises or with the employer’s chattels.”
Church, 385 F.3d 232, 235 (2d Cir. 2004).

Ehrens v. Lutheran
“Such claims require

specific allegations of the employee’s past wrongdoing.”

Doe v.

Uber Techs., Inc., 551 F. Supp. 3d 341, 362 (S.D.N.Y. 2021); see
also Doe v. Alsaud, 12 F. Supp. 3d 674, 680 (S.D.N.Y. 2014) (“New
York courts have held in employee sexual misconduct cases that an
employer is only liable for negligent supervision or retention if
33

it is aware of specific prior acts or allegations against the
employee.”).
Here,

Astakhov

was

an

independent

contractor,

not

an

employee, and no evidence has been presented that defendants knew
or should have known of Iouri Astakhov’s alleged propensity to
commit sexual assault.
taking

10

depositions

Def. 56.1 ¶¶ 34, 50, 52.
and

receiving

discovery,

Indeed, after
plaintiff

has

presented no evidence that Astakhov “had committed any criminal
act prior to October 19, 2018,” id. ¶ 51, or that the hotel had
received any complaints about him in the past, id. ¶¶ 26, 27, 35,
44, 49.

In the absence of such allegations, any claim for

negligent supervision or retention under New York law would fail.
Third, New York courts have, in fact, held that “[t]here is
no common-law duty to institute specific procedures for hiring
employees unless the employer knows of facts that would lead a
reasonably

prudent

person

to

investigate

the

prospective

employee.” KM v. Fencers Club, Inc., 164 A.D.3d 891, 893 (2d Dep’t
2018); see also Amendolara v. Macy’s New York, 19 A.D.2d 702, 702
(1st Dep’t 1963) (“[Defendant] was under no duty to inquire into
the possibility that Charters might have been convicted of crime
in the past, and before the incident in question nothing transpired
to

alert

occur.”).

it

to

the

possibility

that

such

an

incident

might

Plaintiff has identified no case law that disputes this

rule, and, as established above, there is “no evidence that
34

[defendants] had knowledge of any facts that would have caused a
reasonably prudent person to conduct a criminal background check
on [Astakhov].”

Fencers Club, Inc., 164 A.D.3d at 893.16

Nevertheless, as discussed, defendants violated New York
Education Law § 7802 and proximately caused plaintiff’s injuries
when they failed to verify that Astakhov was authorized to perform
massage therapy in New York prior to engaging him to handle
plaintiff’s massage.

As such, liability is resolved in favor of

plaintiff, and defendants’ motion for summary judgment is denied
in its entirety.
CONCLUSION
Accordingly, the Court concludes that defendants’ conduct
constituted negligence per se under New York Education Law § 7802
and proximately caused plaintiff’s injuries.

Plaintiff’s motion

for partial summary judgment is thus granted in part and denied in
part, and defendants’ motion for summary judgment is denied in its
entirety.

A teleconference is scheduled for September 21, 2023 at

1:00 p.m. to discuss the damages phase of the case.

The Clerk of

16

To be clear, the Court’s previous finding -- that the hotel’s violation of
New York Education Law § 7802 proximately caused plaintiff’s injuries -- does
not conflict with the present finding -- that plaintiff has not presented any
evidence that Astakhov had a propensity to commit sexual assault. Given that
there is no common law requirement to institute specific hiring procedures
absent a showing of past wrongdoing by a prospective employee, the present
inquiry focuses on whether evidence has been presented of past misconduct by
Astakhov. The Court’s prior proximate cause analysis, which was based on the
hotel’s violation of New York Education Law § 7802, did not turn on such
evidence.

35

Court is respectfully instructed to terminate the motions pending
at ECF Nos. 56 and 63.

SO ORDERED.
Dated:

New York, New York
August 21, 2023
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____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

36

APPENDICES
A.
Appendix A

37

38

B.
Appendix B

39