LB et al v. Hines et al
OPINION & ORDER REDACTED re: 35 MOTION for Partial Summary Judgment against Defendant Paul S. Hines as to Plaintiffs First Claim for Sexual Battery and determining Plaintiffs entitlement to punitive damages. filed by D B, P B, L B. For the foregoing reasons, Plaintiff's Motion for Summary Judgment on the issue of liability on the first claim for sexual battery and for punitive damages is GRANTED. The Clerk of the Court is respectfully requested to enter judgment accord ingly and to terminate the motion at ECF No. 35. The parties are instructed to contact Magistrate Judge Smith within three days for further proceedings. This constitutes the Court's Opinion and Order. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/10/2018) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC#:7· - - ~ ~ - DATE FILED: 4 I j O Id,() fl
LB and DB, on behalf of their minor son, PB,
No. 15-cv-5238 (NSR)
OPINION & ORDER
PAULS. HINES AND ANN H. HINES,
NELSONS. ROMAN, United States District Judge
Plaintiffs, LB and DB, on behalf of their minor son, PB ("Plaintiff'' or "PB"),
commenced the instant action against Defendants Paul S. Hines ("Paul") and Ann H. Hines
(collectively, "Defendants"), asse1ting, inter a/ia, claims sounding in sexual battery, intentional
infliction of emotional harm, and fraudulent conveyance. Plaintiff alleges that on or about
October 13, 2013, Defendant Paul, engaged in sexual conduct with PB, a minor. Following
joinder of issue, Plaintiff moved for partial summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure on the issue of liability on PB's sexual battery claim, and for a
determination that he is entitled to punitive damages on said claim. Plaintiff asserts he is entitled
to judgment as a matter of law on his sexual battery claim because Defendant Paul's the
doctrine of collateral estoppel. Additionally, Plaintiff asse1ts that Defendant Paul's conduct
constitutes willful or malicious conduct warranting the imposition of punitive damages as a
matter oflaw. For the following reasons, the motion is GRANTED in its entirety.
The following facts are drawn from the Complaint and the documents appended thereto.
Plaintiff PB is a 15 year old autistic boy. (Compl. ¶¶ 1, 7, ECF No. 1.) Defendant Paul is a 73
year-old male and was a professor at the Western Connecticut State University. (See Decl. of
Matthew G. DeOreo (“DeOreo Decl.”), Exh. B, SORA Hearing 4:9–11, ECF No. 36.). On or
about October 13, 2013, PB and Defendant Paul met online and chatted. Defendant Paul agreed
to meet PB at his home. (See Compl. ¶ 7.) While at PB’s home, Defendant Paul engaged in oral
and anal sex with PB. (Compl. ¶ 8.) Defendant Paul engaged in sexual conduct despite being told
by PB to stop. (Id.) Defendant Paul was subsequently arrested and prosecuted by the Westchester
District Attorney’s Office.
On May 27, 2014, in Westchester Supreme Court, before the Honorable Susan Cacace
(“Judge Cacace”), Defendant Paul pled guilty to committing a Criminal Sexual Act in the Third
Degree, in violation of N.Y. Penal Law § 130.40, a Class E Felony. During his allocution,
Defendant Paul admitted that on or about October 13, 2013, he, a person being the age of twentyone or older, did engage in oral sexual conduct or anal sexual conduct with a person who was
less than seventeen years of age. (See DeOreo Decl., Exh. A, Plea Allocution of Paul S. Hines
(“Plea Allocution”) 11:19–25, 12:1.) The victim was identified as PB, born in the year 1997.
Defendants do not dispute that the victim identified during the plea allocution as PB is the
Plaintiff in this action, also identified as PB.
On October 14, 2017, Judge Cacace presided over a hearing to determine whether
Defendant Paul was a sexual offender pursuant to the Sexual Offender Registry Act (“SORA”),
and to determine his classification under said act. (See SORA Hearing.) A person who violates
N.Y. Penal Law § 130.40, is required to register as a sexual offender under SORA. N.Y. Correct.
Law § 168-a (1)–(2). Under SORA, a sex offender is classified as either low risk (Level 1),
moderate risk (Level 2) or high risk (Level 3). See N.Y. Correct. Law § 168-n(2). As is relevant
to this proceeding, one of the factors considered in determining an offender’s classification is the
use of force or violence. Id. § 168 et seq; People v. Ratcliff, 966 N.Y.S.2d 433, 433–44 (2d Dept.
2013); People v. Jones, 789 N.Y.S.2d 382, 383 (4th Dept. 2005). Judge Cacace deemed or
certified Paul as a Level Two sex offender. (SORA Hearing 12:7–12.)
A “court shall grant summary judgment if the movant shows that 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). The moving party bears the initial burden of pointing to evidence in the record,
“including depositions, documents [and] . . . affidavits or declarations,” id. at 56(c)(1)(A),
“which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may also support an assertion that
there is no genuine dispute by “showing . . . that [the] adverse party cannot produce admissible
evidence [in] support” of such a contention. Fed. R. Civ. P. 56(c)(1)(B). If the moving party
fulfills its preliminary burden, the onus shifts to the non-moving party to identify “specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) (quotations and citations omitted).
If “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” a motion for summary judgment should fail. Id. at 258; accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summ. order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotations and
citations omitted). The party asserting that a fact is genuinely disputed must support their
assertion by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A)–(B).
“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar College, 196
F.3d 435, 452 (2d Cir. 1999).
The nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation.” FDIC v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotations
and citations omitted). Similarly, “a party cannot create an issue of fact by submitting an
affidavit in opposition to summary judgment that contradicts prior deposition testimony.”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing Perma Research
and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (such affidavits “greatly diminish
the utility of summary judgment as a procedure for screening out sham issues of fact”). But the
mere fact that a non-movant’s factual allegations in opposition are “self-serving” does not
automatically render them insufficient to defeat summary judgment. Danzer v. Norden Sys.,
Inc., 151 F.3d 50, 57 (2d Cir. 1998). Instead, summary judgment should be granted when a party
“fails to make a showing sufficient to establish the existence of an element essential to that
party’s case,” where “that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
In reviewing the record, “the judge’s function is not himself to weigh the evidence and determine
the truth of the matter,” nor is it to determine a witness’s credibility. Anderson, 477 U.S. at 249.
Rather, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need
for a trial.” Id. at 250. If the Court finds that one party to a case has “no real support for its
version of the facts,” a motion for summary judgment should be granted. Community of
Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962).
“Under collateral estoppel, once an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior litigation.” Montana v. United States, 440
U.S. 147, 153 (1979). “Collateral estoppel, like the related doctrine of res judicata, has the dual
purpose of protecting litigants from the burden of relitigating an identical issue with the same
party or his privy and of promoting judicial economy by preventing needless litigation.”
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979); see also Allen v. McCurry, 449
U.S. 90, 94 (1980).
New York law governs the preclusive effect of a judgment from a New York state court.
See Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 (1984) (“the
preclusive effect in federal court of petitioner’s state-court judgment is determined by [state]
law”); see also Wight v. BankAmerica Corp., 219 F.3d 79, 87–88 (2d Cir. 2000). The Second
Circuit has recognized that there is “no significant difference” between New York preclusion law
and federal preclusion law. Pike v. Freeman, 266 F.3d 78, 90 n.14 (2d Cir. 2001); see also
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (“The parties agree that
there is no discernible difference between federal and New York law concerning res judicata and
The doctrine of collateral estoppel under New York law is applicable upon a showing of
two factors: “First, the identical issue necessarily must have been decided in the prior action and
be decisive of the present action, and second, the party to be precluded from relitigating the issue
must have had a full and fair opportunity to contest the prior determination.” Kaufman v. Eli
Lilly & Co., 482 N.E.2d 63, 67 (1985). The federal test for the application of collateral estoppel
distributes these same elements into a four-part test: “(1) the identical issue was raised in a
previous proceeding; (2) the issue was ‘actually litigated and decided’ in the previous
proceeding; (3) the party had a ‘full and fair opportunity’ to litigate the issue; and (4) the
resolution of the issue was ‘necessary to support a valid and final judgment on the merits.’”
Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998) (quoting Interoceanica Corp. v. Sound
Pilots, Inc., 107 F.3d 86, 91 (2d Cir.1997)).
“Under New York law, a ‘battery’ is an intentional wrongful physical contact with
another person without consent.” Girden v. Sandals Int’l, 262 F.3d 195, 203 (2d Cir. 2001)
(quotations and citation omitted). To establish a claim for battery, a plaintiff must establish
offensive bodily contact made with the intent to make such contact, Laurie Marie M. v. Jeffrey
T.M., 559 N.Y.S.2d 336, 338 (3d Dept. 1991), without the consent of the person being touched.
Van Vooren v. Cook, 75 N.Y.S.2d 362, 365–67 (4th Dept. 1947). The intensity of the physical
contact must not exceed the consent, if any, given. Warner v. Orange County Dept. of Probation,
968 F. Supp. 917, 924 (S.D.N.Y. 1997). Injury as a result of the offensive conduct is not an
element to a battery claim. See Zgraggen v. Wilsey, 606 N.Y.S.2d 444, 445 (3d Dept. 1994). A
claim of sexual battery is, therefore, the intentional wrongful sexual contact with another person
without their consent.
Generally, “the purpose of punitive damages is to punish the defendant for his willful or
malicious conduct and to deter others from similar behavior.” Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 306 n.9 (1986). Under New York law, an award of punitive damages is
permitted when “‘the defendant’s wrongdoing is not simply intentional but evince[s] a high
degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal
indifference to civil obligations.’” Tiffany and Co. v. Costco Wholesale Corp., 127 F. Supp. 3d
241, 261 (S.D.N.Y. 2015) (quoting Ross v. Louise Wise Servs. Inc., 868 N.E.2d 189, 196 (2007)).
The Second Circuit has stated that, “[i]t is generally recognized that, in cases of personal torts,
‘vindictive actions,’ such as assault and battery . . . where the elements of fraud, malice, gross
negligence, cruelty, or oppression are involved, punitive or exemplary damages may be
recovered.” Pepe v. Maklansky, 67 F. Supp. 2d 186, 187–88 (S.D.N.Y. 1999) (quoting Walsh v.
Segale, 70 F.2d 698, 699 (2d Cir. 1934)). Furthermore, “‘[i]t is well settled that the
determination whether to award punitive damages lies in the discretion of the trier of the facts.’”
Id. at 188 (quoting Collins v. Willcox Inc., 600 N.Y.S.2d 884, 887 (N.Y. Sup. Ct. 1992)).
Plaintiff seeks summary judgment on the issue of liability on his sexual battery claim.
Plaintiff contends that there are no material facts at issue with regard to Defendant’s liability
because Defendant admitted by way of his criminal court guilty plea to the conduct as alleged in
the complaint giving rise to this claim. Defendants oppose Plaintiff’s motion on the basis that the
doctrine of collateral estoppel is inapplicable.
Plaintiff’s motion for summary judgment on the issue of liability on his sexual battery
claim is granted on the basis that Defendant’s guilty plea establishes all of the essential elements
of sexual battery as a matter of law. In support of his motion, Plaintiff submits a copy of
Defendant Paul’s plea allocution wherein he pled guilty to committing a Criminal Sexual Act in
the Third Degree, in violation of N.Y. Penal Law § 130.40(2). During his plea, he acknowledged
that he “did engage in oral sexual conduct or anal sexual conduct with a person who was less
than seventeen years old.” (Plea Allocution 11:19–25, 12:1.) As is relevant to this proceeding,
N.Y. Penal Law § 130.05(3) provides that a person is deemed incapable of consent when he or
she is less than seventeen years old, mentally disabled or mentally incapacitated. The parties do
not dispute that Plaintiff PB was under the age of seventeen and autistic at the time of the
incident. Moreover, as will be discussed below, there is evidence that Defendant Paul used force
during the commission of the offense. Thus, Defendant’s contention that his plea allocation is
insufficient to establish the elements of the claim for sexual battery is unavailing.
The Court also determines that Plaintiff is entitled to punitive damages as a matter of law.
On October 14, 2017, Defendant Paul appeared before Judge Cacace for the purpose of
determining whether he was required to register under SORA. One of the factors used to
determine an offender’s classification is whether there was violence used during the commission
of the sexual act. Under the use of violence factor, an offender may be assessed thirty points if he
was armed with a dangerous instrument, fifteen points if he inflicted physical injury, and ten
points if he used forcible compulsion. N.Y. Correct. Law §§ 168 et seq.
In her decision filed and entered, October 16, 2017, Judge Cacace determined that
Defendant Paul’s conduct involved the use of violence and assessed ten points. (DeOreo Decl.,
Exh. C, Decision & Order, at 2.) The use of violence by a Defendant, as interpreted under
SORA, is defined by N.Y. Penal Law § 130.00(8)’s definition of forcible compulsion. See
People v. Fowara, 9 N.Y.S.3d 390, 391 (2d Dept. 2015). Forcible compulsion means to compel
another to engage in a sexual act either: through the “use of physical force; or a threat, express or
implied, which places a person in fear of immediate death or physical injury to himself, herself
or another person, or in fear that he, she or another person will immediately be kidnapped.” N.Y.
Penal Law § 130.00(8)(a)–(b). Defendants did not and have not challenged Judge Cacace’s
The Court determines that Defendant Paul's conduct evinced a high degree of moral
turpitude and demonstrated such wanton dishonesty as to imply a criminal indifference to civil
obligations. The award of punitive damages is warranted under these circumstances not only to
punish the wrongdoer for his willful and malicious conduct but also to deter others from similar
behavior. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 n.9 (1986) Accordingly,
Plaintiff's motion for punitive damages is granted.
For the foregoing reasons, Plaintiff's Motion for Summary Judgment on the issue of
liability on the first claim for sexual battery and for punitive damages is GRANTED. The Clerk
of the Comt is respectfully requested to enter judgment accordingly and to terminate the motion
at ECF No. 35. The parties are instructed to contact Magistrate Judge Smith within three days
for further proceedings. This constitutes the Court's Opinion and Order.
White Plains, New York
NELSON S. ROMAN
United States District Judge
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