Opinion
22-cv-8614 (VEC)(JW)
02-13-2024
PHILLIP LEIB-PODRY, Plaintiff, v. GEOFFEREY TOBIAS et al, Defendants.
TO THE HON.VALERIE E. CAPRONI, United States District Judge:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS United States Magistrate Judge
Pro se Plaintiff Leib-Podry filed this lawsuit on October 7, 2022. Dkt. No. 2. Liberally construed, Plaintiffs complaint asserts state law causes of action for (i) medical malpractice, (h) battery, (iii) sexual assault, (iv) conspiracy, and a federal claim for (v) unfair trade practices. See generally Dkt. No. 2; see also Dkt. No. 5; see also Defendant's Memorandum of Law, Dkt. No. 35 at 10 (acknowledging Plaintiffs Complaint "liberally construed" asserts these causes of action); see also Insurance Defendant's Memorandum of Law, Dkt No. 40 at 32 (acknowledging Plaintiffs Complaint "liberally construed" may assert a claim for unfair trade practices). In December 2022, the case was referred to this Court for all dispositive motions. Dkt. No. 7.
Judge Swain previously issued an Order to Show Cause to Plaintiff to demonstrate subject matter jurisdiction. Dkt. No. 4. Plaintiff submitted a declaration at Dkt. No. 5 that alleged diversity jurisdiction, that the Berkshire Hathaway, MedPro Group, and Princeton Insurance Company Defendants are "active" in New York, and that "federal question jurisdiction appears to exist... .federal law bans unfair or deceptive acts." See Dkt. No. 5. While not included in the Complaint, the Court will consider these claims.
On June 1, 2023, Defendants Geoffery Tobias, Berkshire Hathaway, MedPro Group, and Princeton Insurance Company moved to dismiss the Complaint. Dkt. Nos. 33, 38. On July 26, 2023, Plaintiff submitted an Opposition to the Motions to Dismiss. Dkt. No. 49. Defendants submitted their Replies in August 2023. Dkt. Nos. 56, 58.
Defendants raise numerous arguments in their Motions to Dismiss. See Dkt. Nos. 33 at 1 (“Pursuant to N.Y. C.P.L.R. § 214-a, dismissing the claim sounding in medical malpractice as time-barred and, in any event, pursuant to Fed. R. Civ. P., Rules 8(a)(2) and 12(b)(6), for failure to state a claim upon which relief may be granted; and/or (b) Pursuant to N.Y. C.P.L.R. § 215(3) or § 214-a, dismissing the claim sounding in the intentional tort of battery as time-barred and, in any event, pursuant to Fed. R. Civ. P., Rules 8(a)(2) and 12(b)(6), for failure to state a claim upon which relief may be granted; and/or (c) Dismissing any conspiracy claim for failure to state a claim upon which relief may be granted; and/or (d) Pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1915(e)(2)(B)(i), dismissing the complaint as patently frivolous, irrational and vexatious; or (e) Pursuant to Fed. R. Civ. P., Rule 12(b)(7) and Rule 19, dismissing the complaint for failure to join an indispensable party; or (f) Striking plaintiffs' claim for punitive damages; and/or (g) Assuming the complaint asserts a substantial claim, then pursuant to Fed.R.Civ.P. 17 and N.Y. C.P.L.R. §§ 1201 and 3211, dismissing the complaint for want of capacity; or (h) Pursuant to Fed. R. Civ. P., Rule 17, compelling plaintiff to appear for a competency hearing; and (i) Granting moving defendant such other and different relief as the Court may deem just and proper.”); Dkt. No. 40 at 10 (Defendants “move to dismiss this action as it is frivolous, this Court does not have jurisdiction over the defendants, and plaintiff fails to state a claim for relief.”.).
Because each of Plaintiff's claims is either time-barred, fails to state a claim, or is factually frivolous, Defendants' Motions to Dismiss should be GRANTED.
I. BACKGROUND
Plaintiff's three-and-a-half page complaint alleges many facts, some relevant and others entirely extraneous to the allegations in this case. See generally Dkt. No. 2. Typically a court must accept the facts in the complaint as true at the motion to dismiss stage, but a court is allowed to reject facts and allegations that it deems frivolous and irrational. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). For reasons stated more fully below, I find the facts in this Complaint to be frivolous and irrational.
Plaintiff alleges the events described in the Complaint occurred “between January 23, 2017 and the present time” and April 2017 in locations in “New York County…and locations in Englewood New Jersey…” Dkt. No. 2 at 1. The Complaint alleges that Plaintiff resides “in New York County” and that Defendants “operate businesses from outside New York State.” Dkt. No. 2 at 1. Plaintiff says that “all appointments before the [medical] procedure took place at 815 Park Avenue” and also asserts that certain other events occurred “at 815 Park Avenue” and “at Englewood Hospital” but does not otherwise specify where many of the alleged events occur.
Plaintiff's primary claim, which takes up the majority of space in the Complaint, alleges that Defendant Dr. Tobias performed an “extremely dangerous procedure” on Plaintiff's nose using a “nylon plastic suture,” which Plaintiff describes as “an exceedingly dangerous and wholly unacceptable procedure that has no purpose whatsoever but to harm the patient.” Dkt. No. 2 at 1. Plaintiff alleges that Dr. Tobias “needlessly remov[ed] a significant portion of the internal structure” of their nose, resulting in “[i]irritation and severe pain” and “other physical damage to [Plaintiff's] face.” Id. at 2. Plaintiff alleges that Defendant Tobias “appeared gratified and pleased to have damaged [Plaintiff's] appearance.” Dkt. No. 2 at 3. Plaintiff asserts that use of the nylon suture “falls far below existing standards of care.” Id. at 2. Later in the Complaint, Plaintiff also indicates that the use of “these non-absorbable polymers … in any patient, would always cause [plaintiff] to become a victim of others for a variety of reasons…” Id.
Plaintiff also claims “without further surgery the procedure is likely to lead to a malignancy (i.e. cancer) and the risk continues to increase over time.” Dkt. No. 2 at 3. Plaintiff alleges that since the surgery, Plaintiff has been “harassed repeatedly and handcuffed without a substantiated or legitimate reason by the police other than the alterations in my appearance and voice, though other officers have been both understanding and comforting toward me since that time.” Additionally, Plaintiff claims that the nasal procedure “led to repeated and countless rapes and assaults by others.” Dkt. No. 2 at 3.
Plaintiff claims that he “did not consent to the surgical procedure” but instead “was made to submit to the surgery by compulsion.” Id. at 2-3 The compulsion is described as “demeaning remarks” about Plaintiff's appearance, insistence by Defendant Dr. Tobias that the surgery was necessary, and a follow-up phone call from the doctor's assistant. Id.
The Complaint next turns to Defendant Dr. Tobias' insurers: Princeton Insurance, Berkshire Hathaway, and the MedPro Group. While Plaintiff alleges “cosmetic treatments…can treat the effects of rape and abuse without harming the patient or even asking the patient to speak,” in this situation, insurance coverage of Defendant Dr. Tobias allowed him to “perform unnecessary surgery.” Dkt. No. 2 at 2. Plaintiff alleges that “it is reasonable to presume that Berkshire Hathaway companies provide coverage to many doctors who perform similar…reconstructive nasal procedures that have no meaning or purpose other than to defraud the patient.” Id. at 2. Plaintiff also claims, that the “CEO of Berkshire Hathaway acts as one of the world's foremost philanthropists, but it appears he has failed to direct funds to the development of replacements for these outdated polymers that cause children and vulnerable people who would otherwise be advantaged to become victims of the rest of the population on a grand scale, while the unnecessary use of these polymers provides a pipeline of income to both doctors and Berkshire Hathaway companies.” Dkt. No. 2 at 2.
Next, Plaintiff asserts that Dr. Tobias “sexual[ly] assault[ed]” them. Id. at 3. Plaintiff claims Dr. Tobias' “motivations” in rendering medical “care” “were sexual, aggressive, and malicious in nature.” Id. at 2. Plaintiff asserts “Dr. Tobias wore a suit in his clinical practice during the appointments before the procedure, which effectively prevented [Plaintiff] from being able to sense these motivations.” Id. Plaintiff also avers that on the date of the procedure, Dr. Tobias “used his left hand to move the surgical gown [Plaintiff] was wearing shortly before [Plaintiff] received anesthesia, exposing [Plaintiff's] leg to [Dr. Tobias]. Further Plaintiff alleges that during a follow-up appointment, Dr. Tobias “breath[ed] heavily in [Plaintiff's] face,” and on another occasion, “rubbed his genitals against” Plaintiff “when [Plaintiff] stood up” to leave the examination room. Id.
Plaintiff also asserts that all this is “interrelated and can be described as a conspiracy against [Plaintiff's] rights.” Id. Plaintiff claims that Dr. Tobias' assistant told Plaintiff “to schedule surgery and return to his office,” adding that after the procedure the assistant “joined [Dr. Tobias] in the examination room and watched him examine” Plaintiff and, that then “[b]oth this assistant and Geoffrey Tobias sexually violated [him] on a scale far beyond what is easily imaginable.” Id. Plaintiff alleges “others have repeatedly mimicked those sexual and cruel behaviors when interacting with [Plaintiff].” Id.
Plaintiff also says that “my physical qualities and appearance have always been the only aspects of myself valued by others, even though I skipped ahead in school, was proficient in multiple programming languages by the 8th grade, and have a variety of additional capacities.” Dkt No. 2 at 3. Plaintiff also recounts that “my mother was found hanged by a rope also made of nylon and died shortly thereafter when I was 15. She had worked with ‘Bill' Gates at Microsoft in fundamental roles that included designing MSN ‘the Microsoft Network' which provided free email to the public.” Dkt. No. 2 at 3. Dkt. No. 2.
Lastly, in describing damages, Plaintiff states the “amount outwardly and blatantly owed [to plaintiff] is one trillion dollars.” Dkt. No. 2 at 3. At another point Plaintiff states, “I am demanding U.S. dollars valu[ed] … twenty-two billion …. This is the sum that is necessary to repair my appearance, to keep me safe, and to return my freedom to pursue happiness, success, and love…. It is comprised of 18 billion as actual and essential compensation, the amount required to return my personal stature, including a 1 billion margin for security, according to information from Forbes regarding distribution of wealth among billionaires of different ages at this time, and 4 billion as punitive damages.” Dkt. No. 2 at 3. Plaintiff also indicates that the amount of damages must be high enough to enable him “the freedom to provide solutions to the public for non-absorbable polymers and to complete the development and implementation of technologies that repair damage similar to that which Geoffrey Tobias inflicted upon me.” Dkt. No. 2 at 3.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Caldwell v. Sutton, No. 19-CV-5236 (VEC), 2020 WL 4057750, at *2 (S.D.N.Y. July 20, 2020). “[A] complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Caldwell supra (citing Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted)). For a Plaintiff “to ‘nudge[] their claims across the line from conceivable to plausible,' they must ‘raise a reasonable expectation that discovery will reveal evidence' of the wrongdoing alleged, ‘even if it strikes a savvy judge that actual proof of those facts is improbable.'” Citizens United v. Schneiderman, 882 F.3d 374 (2d Cir. 2018) (cleaned up).
Generally, the Court accepts all factual allegations in a complaint as true and draws all reasonable inferences in the light most favorable to a plaintiff. Caldwell supra, (citing Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013); In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). The Court is not, however, bound to accept allegations that are “irrational,” “fanciful,” “fantastic,” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). Nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 555).
The pleading standard is “generally lower for a pro se litigant.” Caldwell supra at *2; see also McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988)(“pro se litigants…deserve more lenient treatment than those represented by counsel.”). “A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted)). “[T]he court must construe pro se submissions liberally and interpret them to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Courts ordinarily owe pro se litigants “special solicitude” because the lack of legal training and experience makes them more “likely to forfeit important rights through inadvertence.” Caldwell supra, (citing Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)). Notwithstanding that solicitude, a court “cannot invent factual allegations that a pro se plaintiff has not pled.” Caldwell supra, (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). “Even pro se plaintiffs…cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.” Licorish-Davis v. Mitchell, No. 12-CV-601 (ER), 2013 WL 2217491, at *3 (S.D.N.Y. May 20, 2013)(citing Jackson v. NYS Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010)).
III. DISCUSSION
Liberally construed, Plaintiff's complaint asserts state law causes of action for (i) medical malpractice, (ii) battery, (iii) sexual assault, (iv) conspiracy, and a federal claim for (v) unfair trade practices. See generally Dkt. No. 2; see also Dkt. No. 5; see also Defendants' Memorandum of Law, Dkt. No. 35 at 10 (acknowledging Plaintiff's Complaint “liberally construed” asserts these causes of action); see also Insurance Defendants' Memorandum of Law, Dkt No. 40 at 32 (acknowledging Plaintiff's Complaint “liberally construed” may assert a claim for unfair trade practices). Each of these claims is not only time-barred, but also factually frivolous.
1. The Complaint is Irrational and Factually Frivolous
Plaintiff sought, and was granted leave to, proceed in forma pauperis (IFP). Dkt. No. 1; Dkt. No. 3. Under “the IFP statute, a court must dismiss an action if it determines that the action is frivolous or malicious.” See Leonard v. United States, No. 23-CV-8571 (LTS), 2023 WL 8258263, at *3 (S.D.N.Y. Nov. 27, 2023) (citing 28 U.S.C. § 1915(e)(2)(B)(i))(emphasis added). Even where the filing fee was paid, courts “have ... inherent authority to sua sponte dismiss frivolous suits.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011); Yi Sun v. Saslovsky, No. 1:19-CV-10858 (LTS), 2020 WL 6828666, at *2 (S.D.N.Y. Aug. 6, 2020)(citing Greathouse v. JHS Sec. Inc., 784 F.3d 105, 119 (2d Cir. 2015). But on top of that, Section 1915(e)(2)(B)(i) grants a judge ‘the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Samuel v. Bellevue Hosp. Ctr., No. 07 CIV. 6321 (NRB), 2008 WL 3895575, at *3 (S.D.N.Y. Aug. 22, 2008), aff'd, 366 Fed.Appx. 206 (2d Cir. 2010).
Courts have found a “finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992); Nobile v. Queen Laticia of Spain, No. 1:23-CV-9081 (LTS), 2023 WL 8258336 (S.D.N.Y. Nov. 27, 2023). A complaint is “‘factually frivolous' if the sufficiently well-pleaded facts are ‘clearly baseless' - that is, if they are ‘fanciful,' ‘fantastic,' or ‘delusional.'” Leonard supra at *3 (citing Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011)); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
Even when read with the “special solicitude” due pro se pleadings, here, Plaintiff's claims “rise to the level of the irrational.” See Frost v. CVR Assocs. Inc., No. 1:19-CV-9190 (CM), 2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019).
Plaintiff's complaint is replete with irrational claims and wholly irrelevant details. First, Plaintiff provides few concrete details about any of the allegations. See generally Dkt. No. 2. Second, Plaintiff also frequently makes conclusory statements with either no detail or only an implausible explanation provided. Id. For example, Plaintiff says “I was made to submit to surgery by compulsion” but says the manner of the compulsion was “demeaning remarks regarding my appearance and persistence that the procedure was necessary.” Id. at 3.
Third, Plaintiff makes assertions that appear delusional and irrational. Plaintiff claims “without further surgery the procedure is likely to lead to a malignancy (i.e. cancer) and the risk continues to increase over time.” Id. Plaintiff also asserts that Dr. Tobias “wore a suit” in his clinical practice during the appointments before the procedure, which “effectively prevented [Plaintiff] from being able to sense [Tobias's] motivations.” Id. “The only purpose of the procedure he performed was to gain power over me.” Id. at 3. Another example is that Plaintiff alleged Dr. Tobias's assistant “joined Geoffrey Tobias in the examination room and watched him examine me. A piece of non-absorbable plastic (nylon) had been placed in my nose and not in hers. Both this assistant and Geoffrey Tobias sexually violated me on a scale far beyond what is easily imaginable…” Dkt. No. 2 at 3.
Fourth, Plaintiff blends allegations against Tobias with allegations against unnamed others. Plaintiff says that the nasal procedure “led to repeated and countless rapes and assaults by others.” Dkt. No. 2 at 3. Plaintiff alleges Dr. Tobias “chuckled in response to complaints I made regarding the results of the procedure….and he appeared gratified and pleased to have damaged my appearance. Since that time, others have repeatedly mimicked those sexual and cruel behaviors when interacting with me.” Dkt. No. 2 at 2.
Furthermore, for a Complaint alleging a sexual assault, Plaintiff provides no detail about the alleged sexual assault beyond claiming that Dr. Tobias “rubbed his genitals” against Plaintiff “when he stood to leave.” Dkt. No. 2 at 2.
Instead, Plaintiff's Complaint is filled with irrelevant details, many that appear entirely delusional. For example, the Complaint includes the irrelevant fact that Plaintiff skipped grades in school, Plaintiff learned computer programming and Plaintiff's mother worked for Bill Gates and later died by apparent suicidal. Dkt. No 2 at 3. The Complaint also details that Plaintiff has been harassed by police since his surgery due to “alterations in [Plaintiff's] appearance and voice.” Id. at 2. In addition, without explanation of context, Plaintiff avers that the “CEO of Berkshire Hathaway acts as one of the world's foremost philanthropists, but it appears he failed to direct funds to the development of replacements for these outdated polymers.” Id.
Plaintiff's damages claim, too, is infused with irrational and fanciful allegations. At one point, Plaintiff states the damages are one trillion dollars. Dkt. No. 2 at 3. At another point saying, “I am demanding U.S. dollars valu[ed] on the day [Defendant's] response is due to these complaints[,] twenty-two billion as financial restitution and absolutely no less than that amount.” Dkt. No. 2 at 3. This sum includes actual damages as well as a “1 billion margin for security, according to information from Forbes regarding distribution of wealth among billionaires of different ages at this time, and 4 billion as punitive damages.” Dkt. No. 2 at 3. Plaintiff, who professes no medical expertise, also indicated that the amount of damages must be high enough to enable them “the freedom to provide solutions to the public for non-absorbable polymers and to complete the development and implementation of technologies that repair damage similar to that which Geoffrey Tobias inflicted upon me.” Dkt. No. 2 at 3.
Moreover, Plaintiff's inclusion of unfair trade practice claims along with objections to the “extremely dangerous procedure [of] a nylon plastic suture…designed entirely to defraud the patient,” in a Complaint that purports to allege a sexual assault indicates a level of irrationality. Dkt. No. 2 at 2. Plaintiff includes no detail on how “nylon plastic sutures,” the most commonly used sutures in the world, are “extremely dangerous” or could result in the damages he alleges. Dkt. No. 2.
Taking all of the allegations together, the Court concludes that, on balance, the Complaint is “‘factually frivolous” as the allegations are fanciful, fantastic, and delusional. See Leonard supra at *3 (citing Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011)); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
In addition to the reasons described below, this is an independent basis to dismiss the Complaint. See Denton supra; Nobile v. Queen Laticia of Spain, supra.
2. Medical Malpractice
Plaintiff's allegations liberally construed purport to assert a cause of action for medical malpractice. As Plaintiff's complaint is unclear as to whether the actions complained of occurred in either New York or New Jersey, the Court will consider the statutes of limitations under both states.
In New York, medical malpractice claims must be brought within two and a half years. See N.Y. C.P.L.R. § 214-a; Lohnas v. Luzi, 30 N.Y.3d 752, 755 (2018); Polardo v. Adelberg, No. 22-CV-2533 (KMK), 2023 WL 2664612, at *18 (S.D.N.Y. Mar. 28, 2023), appeal dismissed sub nom. Poplardo v. Adelberg, No. 23-604, 2023 WL 4504459 (2d Cir. June 8, 2023); see also Bridges v. Corr. Servs., No. 17-CV-2220 (NSR), 2022 WL 1500633, at *7 (S.D.N.Y. May 12, 2022). In New Jersey, the statute of limitations is two years. See N.J.S.A . 2A:14-2 (2-year period from accrual).
The “statute of limitations…runs from the date of the alleged negligent act or omission that caused the patient's injury.” See Lohnas supra at 755; Poplardo at 18 supra, and Bridges at 7 supra. Plaintiff alleges receiving treatment “in January 23, 2017” and on “April 18, 2017 and…within days of that time.” Dkt. No. 2 at 1. Therefore, the Plaintiff's last date to file a claim for medical malpractice was October 17, 2019, in New York and April 18, 2018, in New Jersey.
Plaintiff alleges receiving treatment “between January 23, 2017 and the present time” but the Complaint alleges no other dates besides the January and April dates nor any continuing treatment. See generally Dkt. No. 2.
Plaintiff did not start this lawsuit until October 7, 2022. Dkt. No. 2. Therefore, the medical malpractice claim is time-barred and should be dismissed.
3. Intentional Tort of Battery
To the extent Plaintiff asserts that Plaintiff did not give consent to the medical procedure, Plaintiff asserts a claim for battery. See generally Dkt. No. 2; see also Gomez-Kadawid v. Lee, 2022 WL 676096 *11 (S.D.N.Y. 2022); Meyers v. Epstein, 232 F.Supp.2d 192, 196 (S.D.N.Y. 2002); Messina v . Matarasso, 284 A.D.2d 32, 35-36 (1st Dep't 2001); see also Colucci v. Oppenheim, 326 N.J.Super. 166, 180 (App. Div. 1999)(citing Whiteley-Woodford v. Jones, 253 N.J.Super. 7, 10 (App. Div. 1992).
The tort of battery has a statute of limitations of one year in New York. See N.Y. C.P.L.R. § 215(3); Potter v. Zucker Hillside Hosp., 176 A.D.3d 884 (2019). Even if governed by New Jersey law, which requires commencement within 2 years of accrual, the claim would still be time-barred. See N.J.S.A. 2A:14-2.
Given that Plaintiff alleges the events happened “in January 23, 2017” and on “April 18, 2017 and…within days of that time,” the Plaintiff's last date to file a claim for battery was April 18, 2018 in New York and April 18, 2019 in New Jersey. Dkt. No. 2 at 1.
Plaintiff did not start this lawsuit until October 7, 2022. Dkt. No. 2. Therefore, the battery claim is time-barred and should also be dismissed.
4. Sexual Assault
Plaintiff alleges Dr. Tobias “breath[ed] heavily in [Plaintiff's] face”; and on another occasion, “rubbed his genitals against” Plaintiff “when [Plaintiff] stood up” to leave the examination room. Dkt. No. 2 at 3. Liberally construed this may make out an allegation of sexual assault.
A cause of action for sexual assault is subject to a one-year statute of limitation in New York. Krioutchkova v. Gaad Realty Corp., 28 A.D.3d 427, 428, 814 N.Y.S.2d 171, 173 (2006) (citing CPLR 215[3]; Yong Wen Mo v. Gee Ming Chan, 17 A.D.3d 356, 358, 792 N.Y.S.2d 589); Johnson v. NYU Langone Health, No. 22-CV-09456 (JHR), 2023 WL 6393466, at *2 (S.D.N.Y. Sept. 30, 2023).
It is worth noting that in May 2022 the New York legislature enacted the Adult Survivors Act (ASA) which, in relevant part, “created a one-year revival period, starting November 24, 2022, during which adult survivors of sexual assault could sue their abusers despite the expiration of the previously applicable statutes of limitation.” Carroll v. Trump, 650 F.Supp.3d 213, 218 (S.D.N.Y. 2023). However, the Court concludes that the Adult Survivors Act does not apply to this claim.
First, as discussed above, the Court must conclude that Plaintiff's claims are “fanciful,” “fantastic,” and “delusional.” See Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011); see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
Plaintiff's claims are severely irrational and logically disconnected. See supra Sec. 1. Therefore, Plaintiff does not allege facts warranting equitable tolling of the claims or revival under the Adult Survivors Act. See generally Jones v. N.Y.P.D., No. 23-CV-9515 (LTS), 2024 WL 325361 (S.D.N.Y. Jan. 29, 2024); see also Frost v. CVR Assocs. Inc., No. 1:19-CV-9190 (CM), 2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019).
Second, this Complaint was filed in October 2022, before the ASA became effective. See N.Y. C.P.L.R. 214-j (McKinney) (“every civil claim or cause of action.... which would constitute a sexual offense"...is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section.”)(emphasis added); see also Jones v. Cattaraugus-Little Valley Cent. Sch. Dist., No. 19-CV-707S, 2022 WL 2124608, at *9 (W.D.N.Y. June 13, 2022)(“Because Plaintiff commenced this action before the date the New York legislature authorized for the commencement of suits under the CVA, and because this Court finds no equitable reasons to relieve Plaintiff from the dates set by the New York legislature, the District's motion for summary judgment will be granted.”).
Third, for a claim to be revived pursuant to the ASA, “a defendant's underlying conduct must ‘constitute a sexual offense as defined in article one hundred thirty of the penal law' and have been ‘committed against such person who was eighteen years of age or older.'” See N.Y. C.P.L.R. 214-j; see also Johnson v. NYU Langone Health, No. 22-CV-09456 (JHR), 2023 WL 6393466, at *2 (S.D.N.Y. Sept. 30, 2023) (citing N.Y. Penal Law § 130.52(1) and discussing that an allegation a defendant “put his bare hand between the plaintiff's buttocks cheeks,” does not meet the requisite standard for revival under the Adult Survivors Act.). The claim here does not allege anything that would constitute a sexual offense under NY CPL 130. Thus, for that additional reason, the ASA does not apply here.
The Court also concludes that Plaintiff has not made out an allegation for Sexual Abuse in the Third Degree under CPL § 130.55. While Plaintiff alleges “on one occasion [Dr. Tobias] rubbed his genitals against me when I stood up and tried to leave the examination room” this does not sufficiently allege a violation of CPL § 130.55, which requires a defendant to subject “another person to sexual contact without the latter's consent” with “sexual contact” defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party...” See N.Y. Penal Law § 130.00 (McKinney)(emphasis added). While Plaintiff alleges that Dr. Tobias's interest in performing the surgery was “sexual in nature” the allegation that Dr. Tobias rubbed his genitals against the Plaintiff as Plaintiff left the room does not sufficiently allege that Dr. Tobias did so “for the purpose of gratifying” either his own or Plaintiff's sexual desires. Therefore, the Complaint does not allege a violation of CPL § 130.
Thus, since the Adult Survivors Act does not apply and Plaintiff alleges the events happened on “January 23, 2017” and on “April 18, 2017 and…within days of that time,” the Plaintiff's last date to file a claim alleging a sexual assault in New York was April 18, 2018. Therefore, these claims are time-barred under New York law.
Under New Jersey law, Plaintiff had two years to file a lawsuit alleging sexual assault. See N.J.S.A. 2A:14-2(a) (“Except as otherwise provided by law, every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued ....”); see generally Doe v. Est. of C.V.O., 477 N.J.Super. 42, 303 A.3d 678 (App. Div. 2023). Therefore Plaintiff's last date to file a complaint in New Jersey was April 18, 2019.
Plaintiff did not start this lawsuit until October 2022. Dkt. No. 2. Therefore, Plaintiff's sexual assault claims are time-barred.
5. Conspiracy
Plaintiff's Complaint asserts the actions against them are “interrelated and can be described as a conspiracy against [Plaintiff's] rights.” Id.
However, a “conspiracy to commit a [tort] is never of itself a cause of action.” Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986). “Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort.” Id. see also Carlson v. American Intern. Group, Inc., 30 N.Y.3d 288, 310 (2017) (“New York does not recognize a freestanding claim for conspiracy.”).
Under New York law, to establish a claim of civil conspiracy, a “plaintiff must demonstrate the primary tort, plus the following four elements: [1] an agreement between two or more parties; [2] an overt act in furtherance of the agreement [that constitutes an independent tort or wrongful act]; [3] the parties' intentional participation in the furtherance of a plan or purpose; and [4] resulting damage or injury.” Cohen Brothers Realty Corp. v. Mapes, 181 A.D.3d 401, 404 (1st Dep't 2020). New Jersey law is the same. See e.g. Brown ex rel. Est. of Brown v. Philip Morris Inc., 228 F.Supp.2d 506, 517 (D.N.J. 2002); Assadourian v. Harb, No. CIV.A. 06-896 GEB, 2010 WL 4446632, at *4 (D.N.J. Nov. 1, 2010), aff'd, 430 Fed.Appx. 79 (3d Cir. 2011).
Plaintiff has not alleged any of the elements of a conspiracy. There is no alleged agreement and no alleged underlying tort that is not time-barred. See generally Dkt. No. 2. Plaintiff does not say when any alleged conspiracy occurred. For these reasons, the conspiracy claims against the Defendants should also be dismissed.
6. Unfair Trade Practices
Although a claim for unfair trade practices is not contained in the Complaint, in the response to Judge Swain's Order to Show Cause on the issue of subject matter jurisdiction, Plaintiff alleged that “federal question jurisdiction appears to exist….federal law bans unfair or deceptive acts.” See Dkt. No. 5.
Generally, allegations must be included on the face of the Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002). However, as Plaintiff is pro se, the Court will consider this claim.
Any claim of a violation under federal law for unfair or deceptive trade practices would be governed by Section 5 of the Federal Trade Commission Act (“FTCA”), 15 U.S.C. § 45, which does not provide a private right of action. Hannan v. Rose, 2020 WL 3965341, * 10 (S.D.N.Y. Feb. 28, 2020)(citing Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561 (2d Cir. 1978)(“it is clear that no private right of action arises under [15 U.S.C. § 45]”) (collecting cases); see Oliver v. U.S. Bancorp, No. 14-CV-8948, 2015 WL 4111908, at *6 (S.D.N.Y. July 8, 2015); Shostack v. Diller, No. 15cv2255 (GBD) (JLC), 2015 WL 5535808, at *9 (S.D.N.Y. Sept. 16, 2015) report and recommendation adopted, 2016 WL 958687 (S.D.N.Y. Mar. 8, 2016); Rotblut v. Ben Hur Moving & Storage, Inc., 585 F.Supp.2d 557, 560 (S.D.N.Y. 2008); see also Yerushalayim v. Liecthung, No. 19CV4101 (AMD) (LB), 2019 WL 3817125, at *3 (E.D.N.Y. Aug. 13, 2019) (same); Gray v. Capstone Fin., No. 120-CV-0896(GLS)(CFH), 2020 WL 6526086, at *7 (N.D.N.Y. Sept. 22, 2020), report and recommendation adopted, No. 120-CV-896(GLS)(CFH), 2020 WL 6504625 (N.D.N.Y. Nov. 5, 2020). Since no private right of action exists, only the government can allege a federal unfair trade practices claim. Therefore, Plaintiff's federal unfair trade practice claims should be dismissed.
Similarly, in New Jersey, N.J.S.A. § 17:29B-1 et seq., which regulates trade practices in the business of insurance, “does not create individual or private causes of action.” Pierzga v. Ohio Cas. Group of Ins. Companies, 504 A.2d 1200, 1204 (N.J.Super.Ct.App.Div. 1986)(citing N.J.S.A. § 17:29B-1 et seq.; see also Nationwide Mut. Ins. Co. v. Caris, 170 F.Supp.3d 740 (D.N.J. 2016)(“no private right of action for policyholders against their insurers based on UCSPA violations…”); Rothschild v. Foremost Ins. Co., 653 F.Supp.2d 526, 537 (D.N.J.2009).
New York, on the other hand, does permit private plaintiffs to bring lawsuits for “unfair and deceptive trade practices.” See generally New York General Business Law (“GBL”) § 349(a) (prohibiting “[d]eceptive acts or practices in the conduct of any business, trade or commerce...”) and § 349(h)(permitting a private right of action); see also Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 176 (2021)(“To ensure the broadest enforcement of the statute, the legislature added a private right of action for injunctive and monetary relief (GBL § 349[h]). Thus, in addition to the Attorney General, individuals and businesses may bring an action under GBL § 349.”); Feinberg v Federated Dept. Stores, Inc., 15 Misc.3d 299, 304 (Sup Ct, New York County 2007).
However, unfair or deceptive trade practice claims under New York's GBL § 349 are “subject to the three-year limitations period.” Corsello v. Verizon New York, Inc., 18 N.Y.3d 777 (2012); Marshall v. Hyundai Motor Am., No. 12-CV- 3072 (KMK), 51 F.Supp.3d 451 (S.D.N.Y. 2014); see Malek v. AXA Equitable Life Ins. Co., No. 20-CV-04885(DGA)(YS), 2023 WL 2682408, at *8 (E.D.N.Y. Mar. 29, 2023); see also Nachman v. Tesla, Inc., No. 22-CV-5976(RPK)(ST), 2023 WL 6385772, at *3 (E.D.N.Y. Sept. 30, 2023).
Given that Plaintiff alleges the events happened “in January 23, 2017” and on “April 18, 2017” the Plaintiff's last date to file a claim under New York's GBL § 349 was April 18, 2020. Dkt. No. 2 at 1. Since the Complaint was not filed until October 2022, Plaintiff's state law unfair trade practice claims should also be dismissed. Dkt. No. 2.
7. Leave to Amend
Generally, “pro se litigants should be given leave to amend a complaint if a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)(citing Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999)). However, in light of the fact that even liberally construed, these claims are time-barred and factually frivolous no leave to amend should be granted. See Licorish-Davis v. Mitchell, No. 12-CV-601 ER, 2013 WL 2217491, at *10 (S.D.N.Y. May 20, 2013); Frost v. CVR Assocs. Inc., No. 1:19-CV-9190 (CM), 2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019).
8. Other Grounds for Dismissal Not Considered
The Court declines to reach Defendants' remaining arguments for dismissal.
Defendants raise numerous arguments in their Motions to Dismiss. See Dkt. Nos. 33 and 40.
IV. RECOMMENDATION
For all the foregoing reasons, the Court recommends that the Motions to Dismiss be GRANTED in their entirety and the case be closed.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the Parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam).
The Clerk of the Court is respectfully requested to close Dkt. Nos. 26, 33, 38, 63, and 67.
SO ORDERED.