Vehicles, 72 F. Supp.2d 39, 64-65 (N.D.N.Y. 1999). Plaintiff's Complaint alleges that Walsh engaged in the conduct giving rise to her claim. This allegation also is sufficient to withstand the motion to dismiss.
D. Intentional Infliction of Emotional Distress
Defendants also move to dismiss the fourth cause of action for the intentional infliction of emotional distress ("IIED"). Defendants argue that: (1) any conduct that occurred before January 22, 2001 is barred by the statute of limitations; (2) plaintiff has set forth insufficient allegations of extreme and outrageous conduct; (3) BNA may not be held liable under the theory of respondeat superior for intentional torts; and (4) a plaintiff may not pursue a claim for the IIED where the ambit of the claim falls within traditional tort liability. Plaintiff responds that pre-January 22, 2001 conduct should be allowable pursuant to a continuing violation theory, the allegations in the Complaint adequately set forth a claim for relief under the tort of the IIED, and BNA should be liable for its conduct in failing to remedy the situation.
1. Statute of Limitations
In New York, the statute of limitations for intentional torts, such as the IIED, is one year. N.Y.C.P.L.R. § 215; Niles v. Nelson, 72 F. Supp.2d 13 (N.D.N.Y. 1999). Some courts have held that the continuing violation theory can be applied to the IIED provided that the final actionable event occurred within the one year statue of limitations. Scott v. Rosenthal, No. 97-Civ.2743, 2001 WL 282712, at *7 (S.D.N.Y. Mar. 22, 2001); Dana v. Oak Park Marina, Inc., 660 N.Y.S.2d 906, 911 (App.Div. 4th Dept. 1997); Bonner v. Guccione, 916 F. Supp. 271, 277 (S.D.N.Y. 1996); see also Fusco v. Perry, No. 92-CV-1525, 1995 WL 65067, at *4 (N.D.N.Y. Feb. 9, 1995).
Assuming, without deciding, that the continuing violation is applicable to intentional torts, it may not be invoked under the facts and circumstances of this case. The Complaint alleges a course of conduct by Hadlock that began in March 1999 and persisted until December 2000. There are no allegations that Hadlock engaged in any extreme or outrageous conduct after January 2001 or was otherwise involved any such conduct after January 2001.*fn7 Similarly, there are no allegations that Walsh or Lennon engaged in any extreme or outrageous conduct before January 2001.*fn8 Accordingly, it cannot be said that Walsh's or Lennon's conduct after January 22, 2001*fn9 was related to Hadlock's pre-January 2001 conduct. Because any incidents alleged to have occurred prior to January 22, 2001 are unrelated to the post-January 22, 2001 conduct, they cannot be said to be part of the same course of conduct and the continuing violation theory, therefore, is inapplicable. Thus, the pre-January 22, 2001 incidents are time barred.
2. Failure to State a Claim
In New York, the elements of a claim for the intentional infliction of emotional distress are (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 the injury; and (iv) severe emotional distress. Graupner v. Roth, 293 A.D.2d 408, 410 (1st Dept. 2002). Although defendants may ultimately be able to demonstrate that the post-January 22, 2001 acts do not rise to the level of extreme and outrageous conduct necessary to sustain this cause of action, this issue cannot be resolved on the instant motion to dismiss. See Phelps, 308 F.3d at 186-87. Viewing the Complaint liberally and drawing all reasonable inferences in plaintiff's favor, it alleges a continuing course of sexual harassment, unwanted touching, unwarranted reprimands, interference with plaintiff's job performance, and other conduct that may state a claim for the intentional infliction of emotional distress. These allegations are sufficient to apprise defendants of the nature of plaintiff's claim, the facts upon which they are based, and adequately state a claim upon which relief could be granted. Whether these acts and any other acts that may come out during the course of discovery meet the threshold of extreme and outrageous conduct is more appropriately decided on a motion for summary judgment or at trial. See id.
3. Respondeat Superior Liability
Under New York law, an employer may be held liable for the intentional torts of its employees provided the acts were within the scope of the employee's employment. See Girden v. Sandals Int'l, 262 F.3d 195, 205 (2d Cir. 2001); Cornell v. State of New York, 46 N.Y.2d 1032, 1033, reargument denied, 47 N.Y.2d 951 (1979); Riviello v. Waldron, 47 N.Y.2d 297 (1979); see also Buck v. Zwelling, 272 A.D.2d 895, 896 (4th Dept. 2000); Patterson v. Khan, 240 A.D.2d 644 (2d Dept. 1997). "[T]he employer may be liable when the employee acts . . . intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999). An employer is not liable under respondeat superior "for torts committed by the employee for personal motives unrelated to the furtherance of the employer's business." Heindel v. Bowery Savings Bank, 138 A.D.2d 787 (3d Dept. 1988).
Although Walsh may have committed the alleged acts during business hours and abused the authority of his position within BNA, his conduct cannot be said to have been within the scope of, or a natural incident of, his employment. See Mary KK v. Jack LL, 203 A.D.2d 840, 841 (3d Dept. 1994) (employer not vicariously liable for teacher who molested student during school hours and on school property). Walsh's conduct consisted of an alleged sexual battery, offensive touching, unwarranted reprimands, and attempts to undermine plaintiff's work. Inappropriate sexual comments, gestures and physical contact have been held to be outside the scope of employment. See Scott v. Bell Atlantic Mobile, 2002 WL 550969, at *6 (S.D.N.Y. Apr. 11, 2002) ("Acts of sexual harassment committed for personal motives are not within the scope of an employee's employment."); N.X. v. Cabrini Med. Center, 280 A.D.2d 34, 37-38 (1st Dept. 2001), aff'd, 97 N.Y.2d 247 (2002); Judith M., 93 N.Y.2d at 933 (sexual abuse is a departure of employee's duties for personal motives unrelated to the employer's business); Escobar v. Spartan Assemblies, Inc., 267 A.D.2d 272, 273 (2d Dept. 1999); Nicollette v. Hosp. for Joint Diseases/Orthopaedic Inst., 198 A.D.2d 54 (1st Dept. 1993); see also Cornell, 46 N.Y.2d at 1033. Undermining plaintiff's work which, of course, was the work of BNA, does not further BNA's interest, and therefore, cannot be said to be within the scope, or a natural incident, of Walsh's employment. Thus, neither Lennon nor BNA can be held vicariously liable.*fn10
4. Whether Plaintiff's IIED Claim Is Encompassed by Other Tort Theories
Some New York courts have held that "[n]o intentional infliction of emotional distress claim will lie where the conduct underlying the claim falls within the ambit of traditional tort liability." Hansel v. Sheriden, 991 F. Supp. 69, 75 (N.D.N.Y. 1998) (and cases cited therein), but see Bender v. City of New York, 78 F.3d 787, 792 (2d Cir. 1996) (expressing doubt that there is a generalized rule in New York that a claim for the IIED cannot be maintained where it overlaps other traditional tort claims). Here, plaintiff's claim of a sexual battery is covered by her tort claim for battery. Battery is, of course, a traditional tort. Some of the allegations that Walsh attempted to undermine plaintiff's work may fall within her defamation claim, another traditional tort. The other allegations in support of her claim for the IIED (sexual harassment, other instances of undermining her work, and unwarranted reprimands), however, do not fall well within the ambit of traditional tort remedies. Because this other conduct does not fall within the ambit of any traditional torts, plaintiff may maintain a claim for the IIED.
Defendants seek dismissal of plaintiff's defamation claim (tenth cause of action) on the grounds that: (1) their statements are protected by the common interest privilege; (2) their statements fall within the single-instance rule; and/or (3) their statements are non-actionable expressions of opinion.
Under New York law, statements of opinion are absolutely protected. See Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 178 (2d Cir. 2000). "Whether a potentially actionable statement is one of fact or opinion is a question of law and depends on whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact." Millus v. Newsday, Inc., 89 N.Y.2d 840, 842 (1996) (internal citations and quotations omitted), cert. denied, 520 U.S. 1144 (1997). A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). "Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth." Rinaldi v. Holt Rinehart & Winston, 42 N.Y.2d 369, 380, cert. denied, 434 U.S. 1969 (1977). The New York courts employ a four part test to assist in determining whether alleged defamatory statements are protected opinion or imply actionable facts.
The factors are:
1) "an assessment of whether the specific language in
issue has a precise meaning which is readily
understood or whether it is indefinite and
2) "a determination of whether the statement is
capable of being objectively characterized as true or