Jane Doe v. John Doe

MOTION for Summary Judgment as to liability. Document

S.D.N.Y.December 19, 2016

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------X Jane Doe, Docket No. Plaintiff, 16-cv-00332 -against- John Doe, Defendant. ------------------------------------X NOTICE OF MOTION PLEASE TAKE NOTICE that upon the accompanying Statement of Undisputed Material Facts Pursuant to Local Rule 56.1, dated October 6, 2016, the accompanying Memorandum of Law, dated October 6, 2016, the supporting Declaration of Alan E. Sash, dated October 6, 2016, and the exhibits annexed thereto, the supporting Affidavit of Jane Doe, dated October 6, 2016, and upon all prior pleadings and proceedings had herein, and any subsequent reply papers submitted in support of this motion, Plaintiff by and through her attorneys McLaughlin & Stern, LLP, will move this Court before the Honorable Nelson Roman, at the United States Courthouse, 300 Quarropas Street, White Plains, New York, on December 19, 2016, for an Order, pursuant to Rules 56 and 12(b)(6) of the Federal Rules of Civil Procedure, granting summary judgment in favor of Plaintiff (as to liability) on her two causes of action as set forth in her Case 7:16-cv-00332-NSR-LMS Document 25 Filed 12/19/16 Page 1 of 2 2 Complaint, and dismissing all of the Defendant’s counterclaims, together with such other and further relief as the Court deems proper. PLEASE TAKE FURTHER NOTICE that, pursuant to this Court’s order, Defendant’s opposition papers shall be due on December 2, 2016, and Plaintiff’s reply papers shall be due on December 19, 2016. Dated: New York, New York October 6, 2016 McLaughlin & Stern, LLP By:__________________________ Alan E. Sash 260 Madison Avenue New York, New York 10016 (212) 448-1100 Attorneys for Plaintiff Alan E. Sash Case 7:16-cv-00332-NSR-LMS Document 25 Filed 12/19/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------X Jane Doe, Docket No. Plaintiff, 16-cv- 00332 -against- John Doe, Defendant. ------------------------------------X PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO LOCAL RULE 56.1 Plaintiff, by and through her undersigned counsel, hereby submits this Statement of Undisputed Material Facts, pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, in support of her motion. 1. The defendant and I began dating in or around April 2013. Plaintiff Aff. at ¶2.1 2. In or around November 2013, defendant secretly videotaped me in a sexual encounter with him. I was neither aware of nor consented to defendant taping the sexual encounter. Plaintiff Aff. at ¶3. 1 Defendant admitted this fact in paragraph 7 of his answer. See, Exhibit 4 annexed to the Sash Declaration. Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 1 of 7 2 3. Defendant later uploaded the video of this encounter (which had a runtime of more than 13 minutes) onto a publicly available pornographic Internet website called X-Tube without my knowledge or consent. The video received more than 13,000 views. Plaintiff Aff. at ¶4. 4. Defendant also disseminated the video to third parties without my knowledge or consent. Plaintiff Aff. at ¶5. 5. As a result of the above, I suffered severe emotional distress including, among other things, depression, anxiety, humiliation and embarrassment. Plaintiff Aff. at ¶6. 6. The Manhattan D.A.’s Office and the NYPD investigated defendant’s conduct and charged him with violating the New York State Penal law by unlawfully videotaping his sexual encounter with me and then disseminating same to multiple third parties without my knowledge or consent. The defendant was ultimately indicted and pled guilty in open court to two felony counts -- unlawful surveillance in the second degree in violation of Penal Law 250.45(1); and dissemination of an unlawful surveillance in the first degree in violation of Penal Law 250.60(2). Plaintiff Aff. at ¶7. 7. On May 12, 2015, the defendant admitted the aforementioned facts in open court as follows: The Court: I want to draw your attention now to during the period of time from on or about August 31, 2013, to on or about Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 2 of 7 3 December 1, 2013, in New York County. Did you for your own and another person’s amusement and entertainment intentionally use and install and permit utilization and installation of an imaging device to surreptitiously view, broadcast, and record a person undressing and sexual and other intimate parts of such person at the place and time when such person had a reasonable expectation of privacy without that person’s knowledge and consent? Defendant: Yes. The Court: Did you do that? Defendant: Yes. *** The Court: On February 8, 2014, in New York County, did you intentionally disseminate and unlawfully create a surveillance image, such image having been created by you – Assistant D.A.: That’s an unlawfully created image, your Honor. The Court: Got it. Having been created by you for your own and another person’s amusement by an imaging device that you used and installed and permitted to be used and installed to surreptitiously view, broadcast, and record a person undressing in a sexual and other intimate parts of such person at a time and Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 3 of 7 4 place when that person had a reasonable expectation of privacy without such person’s knowledge and consent. Did you do that, sir? Defendant: Yes. *** Assistant D.A.: We want – is it true that you uploaded the images of you engaging in sexual relations with this other person that you recorded without her permission to a site called X-Tube. *** Defendant: Your Honor, I posted the unlawful recording on the internet pornography site; permitted others to review the recording and, in fact, others did review the recording. I have been told per screen shot of the site indicated 13,000 hits. I do not know if that was accurate. My girlfriend at the time did not know that I was recording such activities, and she did not consent to – sexual consent to the dissemination of recording. Assistant D.A.: And in addition to uploading to pornographic site where it had more than 13,000 hits, the defendant also sEent links to that site to, at least, three people; is that correct? Defendant: Yes. Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 4 of 7 5 *** Court Clerk: [Defendant], you withdraw your previously entered plea of not guilty and plead guilty to the crimes of unlawful surveillance in the second degree and dissemination of unlawful surveillance images to cover and satisfied [sic] Indictment No. 5593 of 2014? Are those your pleas? Defendant: Yes. See, Exhibit 1 (5/12/15 Transcript) annexed to the Sash Declaration at pgs. 8-12 The Court: Are you pleading guilty because you are, in fact, guilty? Defendant: Yes. The Court: Do you understand that you’re pleading guilty today to two felonies? Defendant: I do. Id. at 7-8. 8. On November 10, 2015, the defendant once again admitted the aforementioned facts in open court as follows: Defendant: For my own and another person’s amusement and entertainment, I intentionally used and installed and permitted Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 5 of 7 6 the utilization and installation … of an imaging device to surreptitiously view, broadcast and record a person undressing and sexual and other intimate parts of such person at a place and time when such person had a reasonable expectation of privacy without that person’s knowledge and consent. *** The Defendant: … I intentionally disseminated unlawfully and created a surveillance image, such image having been created by me – having been created for my own and another person’s amusement by an imaging device that I used and installed and permitted to be used and installed to surreptitiously view, broadcast and record a person undressing and sexual and other intimate parts of such person at a time and place when that person had reasonable expectation of privacy without such person’s knowledge and consent. The Court: You took a video of you having sexual relations with your girlfriend and she didn’t know about it, fair to say? Defendant: Yes. *** The Court: Did you post it on a website? Defendant: Yes. Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 6 of 7 7 See, Exhibit 2 (11/10/15 Transcript) annexed to the Sash Declaration at pgs. 7-9. Dated: New York, New York October 6, 2016 Respectfully submitted, McLaughlin & Stern, LLP By:__________________ Alan E. Sash 260 Madison Avenue New York, NY 10016 (212) 448-1100 Attorneys for Plaintiff Alan E. Sash Case 7:16-cv-00332-NSR-LMS Document 25-1 Filed 12/19/16 Page 7 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 1 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 2 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 3 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 4 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 5 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 6 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-2 Filed 12/19/16 Page 7 of 7 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------X Jane Doe, Docket No. Plaintiff, 16-cv-00332 -against- John Doe, Defendant. ------------------------------------X DECLARATION OF ALAN E. SASH Alan E. Sash, declares, under penalty of perjury, as follows: 1. I am a member of the law firm of McLaughlin & Stern, LLP, attorneys for plaintiff. 2. Annexed hereto as Exhibit 1 is a true and correct copy of the May 12, 2015 Transcript in the Defendant’s underlying criminal action. 3. Annexed hereto as Exhibit 2 is a true and correct copy of the November 10, 2015 Transcript in the Defendant’s underlying criminal action. 4. Annexed hereto as Exhibit 3 is a true and correct copy of the Complaint filed in this action. 5. Annexed hereto as Exhibit 4 is a true and correct copy of the Answer and Counterclaims filed in this action. 6. Annexed hereto as Exhibit 5 is a true and correct copy Case 7:16-cv-00332-NSR-LMS Document 25-3 Filed 12/19/16 Page 1 of 2 2 of the Reply to Counterclaims filed in this action. Dated: New York, New York October 6, 2016 ______________________ Alan E. Sash Alan E. Sash Case 7:16-cv-00332-NSR-LMS Document 25-3 Filed 12/19/16 Page 2 of 2 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 1 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 2 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 3 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 4 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 5 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 6 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 7 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 8 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 9 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 10 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 11 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 12 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-4 Filed 12/19/16 Page 13 of 13 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 1 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 2 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 3 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 4 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 5 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 6 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 7 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 8 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 9 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 10 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 11 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-5 Filed 12/19/16 Page 12 of 12 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 1 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 2 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 3 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 4 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 5 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 6 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-6 Filed 12/19/16 Page 7 of 7 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 1 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 2 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 3 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 4 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 5 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 6 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 7 of 8 Case 7:16-cv-00332-NSR-LMS Document 25-7 Filed 12/19/16 Page 8 of 8 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------X Jane Doe, Docket No. Plaintiff, 16-cv-00332 -against- Reply to Counterclaims John Doe, Defendant. ------------------------------------X Plaintiff Jane Doe (“Plaintiff”) by her attorneys McLaughlin & Stern, LLP, as and for her reply to defendant’s counterclaims, alleges the following: 1. Plaintiff’s deny the allegations set forth in Paragraph 1 of Defendant’s Counterclaims. 2. Plaintiff’s deny the allegations set forth in Paragraph 2 of Defendant’s Counterclaims. 3. Plaintiff’s deny the allegations set forth in Paragraph 3 of Defendant’s Counterclaims. 4. Plaintiff’s deny the allegations set forth in Paragraph 4 of Defendant’s Counterclaims. 5. Plaintiff’s deny the allegations set forth in Paragraph 5 of Defendant’s Counterclaims. 6. Plaintiff’s deny the allegations set forth in Paragraph 6 Case 7:16-cv-00332-NSR-LMS Document 25-8 Filed 12/19/16 Page 1 of 3 2 of Defendant’s Counterclaims. 7. Plaintiff’s deny the allegations set forth in Paragraph 7 of Defendant’s Counterclaims. 8. Plaintiff’s deny the allegations set forth in Paragraph 8 of Defendant’s Counterclaims. 9. Plaintiff’s deny the allegations set forth in Paragraph 9 of Defendant’s Counterclaims. 10. Plaintiff’s deny the allegations set forth in Paragraph 10 of Defendant’s Counterclaims. 11. Plaintiff’s deny the allegations set forth in Paragraph 11 of Defendant’s Counterclaims. 12. Plaintiff’s deny the allegations set forth in Paragraph 12 of Defendant’s Counterclaims. AFFIRMATIVE DEFENSES 1. Counterclaims 1, 2 and 3 fail to state a cause of action. 2. Counterclaims 1, 2 and 3 are barred by the applicable statute of limitations. Case 7:16-cv-00332-NSR-LMS Document 25-8 Filed 12/19/16 Page 2 of 3 3 PRAYER FOR RELIEF WHEREFORE, Plaintiff requests the following relief: 1. that all of Defendant’s counterclaims be dismissed with prejudice together with such other and further relief that the Court deems just and proper. Dated: New York, New York February 26, 2016 McLAUGHLIN & STERN, LLP By: Alan E. Sash 260 Madison Avenue New York, NY 10016 (212) 448-1100 Attorneys for Plaintiff Alan E. Sash Case 7:16-cv-00332-NSR-LMS Document 25-8 Filed 12/19/16 Page 3 of 3 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------X Jane Doe, Docket No. Plaintiff, 16-cv-00332 -against- John Doe, Defendant. ------------------------------------X PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT (AS TO LIABILITY) AND TO DISMISS DEFENDANT’S COUNTERCLAIMS McLaughlin & Stern, LLP 260 Madison Avenue New York, NY 10016 (212) 448-1100 Attorneys for Plaintiff Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 1 of 16 2 Statement of Facts Plaintiff and the defendant began dating in or around April 2013. Doe Aff. at ¶2.1 In or around November 2013, defendant secretly videotaped a sexual encounter with plaintiff. Doe Aff. at ¶3. Plaintiff was neither aware of nor consented to defendant taping their sexual activity. Id. Defendant later uploaded the video of his sexual encounter with the plaintiff which had a runtime of more than 13 minutes onto a publicly available pornographic Internet website called X-Tube without plaintiff’s knowledge or consent. Doe Aff. at ¶4. The video received no less than 13,000 views. Id. Defendant also disseminated the video to third parties without plaintiff’s knowledge or consent. Doe Aff. at ¶5. Plaintiff, as a result, suffered severe emotional distress including, inter alia, humiliation and embarrassment. Doe Aff. at ¶6. After an investigation conducted by the New York County D.A.’s Office, as well as the NYPD, the defendant was charged with violating the New York State Penal law by unlawfully videotaping his sexual encounter with the plaintiff and disseminating same. Doe Aff. at ¶7. The defendant was ultimately indicted and pled guilty in open court to two felony counts -- unlawful surveillance in the second degree in 1 Defendant admits this fact in paragraph 7 of his answer. See, Exhibit 4. Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 2 of 16 3 violation of Penal Law Section 250.45(1); and dissemination of an unlawful surveillance in the first degree in violation of Penal Law Section 250.60(2). Id. On May 12, 2015, the defendant admitted the aforementioned facts in open court as follows: The Court: I want to draw your attention now to during the period of time from on or about August 31, 2013, to on or about December 1, 2013, in New York County. Did you for your own and another person’s amusement and entertainment intentionally use and install and permit utilization and installation of an imaging device to surreptitiously view, broadcast, and record a person undressing and sexual and other intimate parts of such person at the place and time when such person had a reasonable expectation of privacy without that person’s knowledge and consent? Defendant: Yes. The Court: Did you do that? Defendant: Yes. *** The Court: On February 8, 2014, in New York County, did you intentionally disseminate and unlawfully create a surveillance image, such image having been created by you – Assistant D.A.: That’s an unlawfully created image, your Honor. Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 3 of 16 4 The Court: Got it. Having been created by you for your own and another person’s amusement by an imaging device that you used and installed and permitted to be used and installed to surreptitiously view, broadcast, and record a person undressing in a sexual and other intimate parts of such person at a time and place when that person had a reasonable expectation of privacy without such person’s knowledge and consent. Did you do that, sir? Defendant: Yes. *** Assistant D.A.: We want – is it true that you uploaded the images of you engaging in sexual relations with this other person that you recorded without her permission to a site called X-Tube. *** Defendant: Your Honor, I posted the unlawful recording on the internet pornography site; permitted others to review the recording and, in fact, others did review the recording. I have been told per screen shot of the site indicated 13,000 hits. I do not know if that was accurate. My girlfriend at the time did not know that I was recording such activities, and she did not consent to – sexual consent to the dissemination of recording. Assistant D.A.: And in addition to uploading to pornographic site where it had more than 13,000 hits, the Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 4 of 16 5 defendant also sEent links to that site to, at least, three people; is that correct? Defendant: Yes. *** Court Clerk: [Defendant], you withdraw your previously entered plea of not guilty and plead guilty to the crimes of unlawful surveillance in the second degree and dissemination of unlawful surveillance images to cover and satisfied [sic] Indictment No. 5593 of 2014? Are those your pleas? Defendant: Yes. See, Exhibit 1 at pgs. 8-12 The Court: Are you pleading guilty because you are, in fact, guilty? Defendant: Yes. The Court: Do you understand that you’re pleading guilty today to two felonies? Defendant: I do. Id. at 7-8. On November 10, 2015, the defendant once again admitted the aforementioned facts in open court as follows: Defendant: For my own and another person’s amusement and entertainment, I intentionally used and installed and permitted the utilization and installation … of an imaging device to surreptitiously view, broadcast and record a person undressing Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 5 of 16 6 and sexual and other intimate parts of such person at a place and time when such person had a reasonable expectation of privacy without that person’s knowledge and consent. *** The Defendant: … I intentionally disseminated unlawfully and created a surveillance image, such image having been created by me – having been created for my own and another person’s amusement by an imaging device that I used and installed and permitted to be used and installed to surreptitiously view, broadcast and record a person undressing and sexual and other intimate parts of such person at a time and place when that person had reasonable expectation of privacy without such person’s knowledge and consent. The Court: You took a video of you having sexual relations with your girlfriend and she didn’t know about it, fair to say? Defendant: Yes. *** The Court: Did you post it on a website? Defendant: Yes. See, Exhibit 2 at pgs. 7-9. After defendant pled guilty, plaintiff commenced the within civil action asserting two causes of action – intentional infliction of emotional distress and negligent infliction of emotional distress. See, Exhibit 3. The basis of plaintiff’s Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 6 of 16 7 claims is that the defendant unlawfully recorded her engaging in sexual activity and disseminated same without her knowledge or consent. Defendant answered the complaint and asserted counterclaims; plaintiff replied to same. See Exhibits 4 and 5, respectively. Plaintiff now seeks summary judgment as to liability on her claims against the defendant. Plaintiff also seeks an order dismissing defendant’s counterclaims against her. LEGAL ARGUMENTS A. Plaintiff’s Motion for Summary Judgment as to Liability Should be Granted because Defendant Admitted all of the Material Facts in his Underlying Criminal Case It is well-settled that once a defendant pleads guilty in criminal court, collateral estoppel attaches to the related civil liability. A criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case. Maietta v. Artuz, 84 F.3d 100, 103 (2d Cir. 1996). The rationale behind this rule is that the burden of proof in a criminal action is greater than in the civil context. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d Cir. 1986). Therefore, a criminal conviction precludes a convicted defendant from denying facts in a later civil suit that were actually litigated and adjudicated in the earlier criminal proceeding. Kennedy v. Mendoza-Marintez, 372 U.S. 144, 157 (1963). Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 7 of 16 8 “Under New York law, collateral estoppel bars relitigation of an issue when (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from litigating the issue had a full and fair opportunity to litigate the issue in the prior action.” In re Hyman, 502 F.3d 61, 65 (2d Cir. 2007). “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. v. Shore, 439 U.S. 322, 325 (1979). The New York Court of Appeals has adopted the rule formulated in section 46(1) of the Restatement (Second) of Torts that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress”. Moreover, the Court has stated that the tort has four elements “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Dana v. Oak Park Marina, Inc., 230 A.D.2d 204 (4th Dept. 1997) citing Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). In Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 8 of 16 9 addition, “[a]s a general rule, a plaintiff who has not suffered any physical injury may recover damages from mental or emotional distress if she can establish that defendant owed a duty to her and that breach of that duty directly resulted in mental or emotional harm.” Bovsun v. Sanperi, 61 N.Y.2d 219, 223-224 (1984). Courts have routinely held that videotaping women when they have a reasonable expectation of privacy inflicts emotional distress upon them. For example, in Dana v. Oak Park Marina, Inc., 230 A.D.2d 204 (4th Dept. 1997), a female marina patron commenced an action against the marina alleging that she had suffered emotional distress as a result of the marina’s videotaping her in the restroom. The court held that such conduct states a claim for both negligent and reckless infliction of emotional distress. Id. Similarly, in Hering v. Lighthouse 2001, LLC, 21 A.D.3d 449 (2d Dept. 2005), the court held that creating peepholes to spy on woman in the bathroom inflicts emotional distress on the women using that bathroom. In Sawicka v. Catena, 79 A.D.3d 848 (2d Dept. 2010), former female employees proved their claim for intentional infliction of emotional distress by showing that defendant installed a video camera and taped their use of the restroom. In Hughes v. Pacienza, 33 Misc.3d 1208(A) (Sup. Ct. Kings Co. 2011), plaintiffs sought summary judgment on their claims Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 9 of 16 10 for intentional infliction of emotional distress. It was uncontested that defendant had installed and used a hidden camera in the only working restroom. Like here, the defendant pled guilty to the crime of unlawful surveillance. As a result, the court granted plaintiffs’ motion for summary judgment on liability because the defendant’s “conviction of the crime of unlawful surveillance in the second degree in violation of Penal Law §250.45(3)(a) is prima facie evidence that [defendant] intentionally used or installed an imaging device to surreptitiously view people without such people’s knowledge or consent. A defendant’s criminal conviction of a crime is conclusive proof in a civil proceeding that the defendant committed the acts constituting the essential elements of said crime by operation of the principal of collateral estoppel.” Id. at *7 citing S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300 (1973). Finally, in Morrow v. Gallaher, 113 A.D.3d 827 (2d Dept. 2014), the plaintiff was the victim of a sexual assault committed by the defendant. The defendant pled guilty to forcibly touching and sexually abusing the plaintiff. Plaintiff thereafter commenced a civil action against him alleging, inter alia, assault and battery. After issue was joined, plaintiff moved for summary judgment on the issue of liability relying, primarily, upon a transcript of the related criminal prosecution Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 10 of 16 11 wherein the defendant pled guilty and admitted the allegations against him. The plaintiff argued that the doctrine of collateral estoppel applied and that the defendant was precluded from relitigating the issues decided in the criminal action. The trial court agreed and granted plaintiff’s motion for summary judgment on the issue of liability as to the assault and battery claims. The defendant then appealed. Id. The appellate division affirmed holding that “[w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of his liability.” Id. The appellate division further held that the plaintiff met her burden of proof to support an award of summary judgment because “the transcript of the related criminal action, was sufficient to satisfy their prima facie burden of entitlement to judgment as a matter of law on the issue of liability with regard to the claims of assault, battery, fondling and forcible touching.” Id. The same should hold true here. As in Morrow and Hughes, supra, the transcripts here are sufficient to satisfy plaintiff’s prima facie case against the defendant. The defendant admitted, under oath, the very facts which form the basis of plaintiff’s claims for negligent and Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 11 of 16 12 intentional infliction of emotional distress. For instance, the defendant conceded that:  he intentionally used and installed an imaging device to surreptitiously view, broadcast, and record plaintiff engaging in sexual activity without her knowledge or consent when she had a reasonable expectation of privacy;  he intentionally disseminated such images to at least three people as well as a pornographic website which generated more than 13,000 views without plaintiff’s knowledge or consent; and  as a result of the above, he pled guilty to two felonies including unlawful surveillance and dissemination of unlawful surveillance. Based upon defendant’s admissions and conviction, we respectfully submit that plaintiff has established her prima facie case for judgment as a matter of law. The only remaining issue is one of damages. B. Defendant’s Counterclaims Should Be Dismissed Based Upon his Failure to State a Claim and Collateral Estoppel For an action to survive dismissal under Rule 12(b)(6), there must be “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. A plaintiff is obligated to provide grounds for entitlement for relief which are more than “labels and conclusions.” Id. “A formulaic recitation of the elements of a cause of action will not do.” Id. When the pleaded facts do Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 12 of 16 13 not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). These standard apply to all elements of a claim. Id. at 1953. In Iqbal, the Supreme Court established a two-pronged approach for courts considering a motion to dismiss. First, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Thus, “[t]hreadbare recitations of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949. Second, “[w]hen there are well-pleaded allegations a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Id. The Court defined plausibility as follows: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 13 of 16 14 Id. at 1949. In addition to dismissing a claim under Rule 12(b)(6), a court may also dismiss a claim based on collateral estoppel or res judicata. Kuar v. Mawn, 08-cv-4401(JFB), 2011 U.S. Dist. LEXIS 22209 (E.D.N.Y. March 4, 2011); Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993). Here, defendant asserted three counterclaims against plaintiff. All of them must be dismissed under Rule 12(b)(6) or collateral estoppel. Defendant’s first counterclaim charges plaintiff with violating two sections of the New York State Penal Law -- §156.05 (unauthorized use of a computer) and §156.10 (computer trespass). These are criminal statutes that can only be maintained by a State District Attorney’s office. Defendant, a private individual, cannot assert these claims as a matter of law. Accordingly, defendant’s counterclaim against the plaintiff arising under the New York State Penal Law must be dismissed. Defendant’s second counterclaim alleges that plaintiff falsely informed members of the NYPD on or about September 6, 2014 that she and the defendant lived together causing the police to arrest the defendant. According to defendant, the NYPD would not have arrested him but-for plaintiff’s claim that they lived together. Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 14 of 16 15 We respectfully submit that defendant’s second counterclaim should be dismissed for three reasons. First, this counterclaim is not plausible on its face because defendant pled guilty to two felonies giving the NYPD independent bases to arrest him. Second, defendant’s factual allegations are conclusory and speculative as a matter of law. There is no misconduct alleged against the plaintiff. Third, if defendant’s counterclaim somehow sounds in defamation, there is nothing defamatory about plaintiff’s alleged statement to the police and, even if there was, the one-year statute of limitations for defamation would have expired months before the defendant asserted this counterclaim. Defendant’s final counterclaim fails as well. Defendant alleges in a conclusory manner that plaintiff contacted a reporter at the New York Post on September 8, 2014 and made assertions about him that were false and salacious. Defendant, however, fails to allege what those statements were or how they were false and salacious. Once again, there is nothing alleged in this counterclaim that provides the defendant with a ground for relief against the plaintiff.2 2 If defendant is claiming that plaintiff defamed him by informing the New York Post that he unlawfully videotaped her and disseminated it, that claim is barred by collateral estoppel. Defendant, when pleading guilty in the underlying criminal action, admitted the truth of these statements. Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 15 of 16 16 Accordingly, for the reasons set forth above, all of the defendant’s counterclaims fail as a matter of law and must be dismissed. CONCLUSION For the reasons set forth above, we respectfully request that plaintiff’s motion for summary judgment (as to liability) and plaintiff’s motion to dismiss defendant’s counterclaims be granted. Dated: New York, New York October 6, 2016 Respectfully submitted, McLaughlin & Stern, LLP By:__________________ Alan E. Sash 260 Madison Avenue New York, NY 10016 (212) 448-1100 Attorneys for Plaintiff Alan E. Sash Case 7:16-cv-00332-NSR-LMS Document 25-9 Filed 12/19/16 Page 16 of 16