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Gisele Lunkes, Berandett Herczeg, and Isabelle A. Krintz v. Joseph Yannai and Elena Fusillo

July 17, 2012

GISELE LUNKES, BERANDETT HERCZEG, AND ISABELLE A. KRINTZ, PLAINTIFFS,
v.
JOSEPH YANNAI AND ELENA FUSILLO, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

Gisele Lunkes, Berandett Herczeg, and Isabelle Krintz allege that the defendants, Joseph Yannai and Elena Fusillo, lured them to the United States with false promises of employment and then enslaved them and that Mr. Yannai sexually abused them repeatedly. After escaping from the defendants' residence, the plaintiffs have brought this action seeking redress under the Trafficking Victims Protection Reauthorization Act (the "TVPRA"), the Fair Labor Standards Act, the New York Labor Law, and New York common law.

After Mr. Yannai was found guilty of human trafficking in a criminal prosecution, Ms. Fusillo, who was not criminally charged, moved to stay all proceedings in this case, and Mr. Yannai joined in that motion. (Affidavit of Joseph Yannai dated May 1, 2012). For the reasons discussed below, the defendants' motion is granted. For the duration of the stay, they are ordered to preserve and protect all relevant documents and data in their possession.

Background

The plaintiffs allege that between 2003 and 2009, the defendants, who resided together at the same address, "engaged in a scheme to coerce and fraudulently induce young women to travel to the United States from abroad to perform labor and services" (Compl., ¶¶ 7, 8, 22), and that Mr. Yannai "used this scheme to sexually abuse the young women," (Compl., ¶ 22). Specifically, they allege that Mr. Yannai "contacted young women throughout the world, using websites designed to match women seeking work as an au pair with families in need of such workers" (Comp., ¶ 23), and deceived them into illegally entering the United States, where he proceeded to effectively imprison them in his house, sexually abuse them, and demand unpaid domestic services, (Compl., ¶¶ 22-31). Ms. Fusillo's role in the trafficking enterprise allegedly involved helping to select women to be recruited, teaching "house rules" to those who were ensnared, assisting Mr. Yannai in limiting the victims' contact with their families and friends, and acquiescing to Mr. Yannai's threats and use of force to control his victims. (Compl., ¶¶ 24, 40, 55).

All three of the plaintiffs claim to have been recruited to work in the United States in this manner.*fn1 They allege that Mr. Yannai promised each of them a job providing him assistance with, among other things, preparing meals, cleaning the defendants' shared residence, and accompanying him on business trips. (Compl., ¶ 28). After each plaintiff arrived in the United States, Mr. Yannai met her at the airport and transported her to his residence. (Compl., ¶ 36). Once there, Mr. Yannai forced them to perform "a variety of labor and service tasks . . . including but not limited to cleaning the home, washing dishes, shoveling snow, washing cars, preparing beverages and meals, caring for [Mr. Yannai's] dog, preparing baths for [Mr. Yannai], bringing [Mr. Yannai] cigarettes, and waking [Mr. Yannai] from naps," all without any pay. (Compl., ¶¶ 37, 38). While employed by Mr. Yannai, the plaintiffs were allegedly forced to follow a dress code of skirts, blouses, high heels, and no bras. (Compl., ¶ 50).

During this time, Ms. Lunkes claims that Mr. Yannai repeatedly hit her in the face, threatened to kill her, and on one occasion choked her while threatening to kill her if she attempted to leave. (Compl., ¶ 46). He allegedly also slapped Ms. Herczeg, implicitly threatened to have the plaintiffs deported if they attempted to leave, and, with the assistance of Ms. Fusillo, closely controlled their contact with friends and families by, among other things, denying them access to transportation to and from the residence. (Compl., ¶¶ 47, 52, 53). Additionally, the plaintiffs claim Mr. Yanna subjected each of them to a range of ongoing sexual abuse. (Compl., ¶¶ 44-80). Ms. Krintz feared Mr. Yannai and alleges that he groped her on at least one occasion. (Compl., ¶¶ 76, 77). Ms. Herczeg describes a pattern of abuse that included, among other things, repeated sexual advances, at least one instance of forced oral sex, and threats that "if she would not perform sexual acts for him, [she] would be treated like 'furniture' . . . and would not be spoken to, would not be allowed to leave the house, would not receive assistance with her health and other needs, and would not be allowed to meet other people . . . ." (Compl., ¶¶ 65-74). Ms. Lunkes claims to have been sexually assaulted hundreds of times over the period from July 2007, when she arrived in the United States, to March 23, 2009, when she escaped from the defendants' residence. (Compl., ¶ 58). According to Ms. Lunkes, these assaults routinely involved oral sex, often included being bitten by Mr. Yannai, and frequently left bruises and other marks. (Compl., ¶¶ 58-64).

In order to escape the defendants' residence, Mr. Herczeg met online a fellow Hungarian citizen living in Pound Ridge, New York and arranged to meet with her secretly on March 11, 2009. (Compl., ¶ 78). After their meeting, Ms. Herczeg returned to the defendants' residence to pack her belongings. (Compl., ¶ 78). Around midnight that night, police officers arrived at the home, and Ms. Herczeg left with them. (Compl., ¶ 78). On March 23, 2009, police reentered the defendants' residence to rescue Ms. Lunkes and Ms. Krintz. (Compl., ¶ 80).

On July 29, 2010, Mr. Yannai was charged with inducing women to travel to the United States for the purpose of committing sexual abuse, attempted forced labor, forced labor, fraud in labor contracting, importing aliens for immoral purposes, inducing aliens to illegally enter and reside in the United States, and unlawful employment of aliens. On June 3, 2011, a jury found him guilty on all counts. (Compl. ¶ 84; Transcript of Criminal Cause for Jury Verdict, United States v. Yannai, No. 10-CR-59 (E.D.N.Y. June 3, 2011), attached as Exh. B to Declaration of Francis J. O'Reilly dated April 5, 2012, at 1350-61).

Although Ms. Fusillo allegedly participated in the trafficking, she was not criminally charged.

On January 25, 2012, the plaintiffs filed this action. Mr. Yannai moved for a new trial in his criminal case on March 13, 2012, and on April 9, 2012, Ms. Fusillo filed the instant motion for a stay pursuant to 18 U.S.C. § 1595(b), the provision of the TVPRA which provides for staying all civil proceedings under that statute while any related criminal prosecution is pending. The defendants argue that under Section 1595 a stay is mandatory until either the resolution of his post-verdict motions for a new trial, sentencing, or appeal. The plaintiffs contend that: (a) Section 1595 does not require a stay under these circumstances, (b) if a stay is proper, it should not apply to the claims against Ms. Fusillo, and (c) any stay should apply only to their claims under the TVPRA and not their related state law claims. In the event a stay is issued, the plaintiffs seek a protective order requiring the defendants to preserve all relevant documents and information in their possession.

As of July 17, 2012 no decision has been made with regard to Mr. Yannai's motion for a new trial, and he has not yet been sentenced.

Discussion

A. Whether Section 1595 Requires a Stay The TVPRA provides that "[a]n individual who is a victim of [sexual trafficking] may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in [sexual trafficking])." 18 U.S.C. § 1595(a). The statute, however, also requires that "[a]ny civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim." 18 U.S.C. § 1595(b)(1). For purposes of the TVPRA, a "'criminal action' includes investigation and prosecution and is ...


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