United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge.
Jane Doe alleges that Defendant John Doe either intentionally
or negligently inflicted severe emotional distress upon her
when he surreptitiously filmed them having sexual intercourse
in November 2013, without informing Plaintiff that he was
recording the encounter or obtaining her consent to do so,
and then posted the film to the internet for public viewing
in February 2014. For these actions, Defendant was
investigated by the New York Police Department and criminally
charged with violating New York Penal Law § 250.45(1)
and § 250.60(2)-unlawful surveillance in the second
degree and dissemination of an unlawful surveillance in the
first degree, respectively. Defendant entered a guilty plea
to attempted versions of both of these crimes in November
now moves for partial summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure on the issue of
Defendant's liability, arguing that she is entitled to
judgment in her favor as a matter of law because
Defendant's allocution in the criminal action constitutes
an admission of liability under the doctrine of collateral
estoppel. Plaintiff also moves pursuant to Rule 12(b)(6) to
dismiss Defendant's defamation based counterclaims. For
the following reasons, Plaintiffs motion for summary judgment
is GRANTED in part and DENIED in part, and her motion to
dismiss is GRANTED.
around April 2013, Plaintiff and Defendant began dating.
(Def.'s 56.1 ¶ 1.) In November 2013, Defendant
placed his cell phone, set to the video function, on his
bedside table to record a sexual encounter between Plaintiff
and himself, without Plaintiff's knowledge or consent.
(Pl.'s 56.1 ¶ 2; John Decl. ¶ 8.) Defendant
disputes whether the filming was surreptitious, because while
he did not inform Plaintiff that he was recording them (and
indeed began recording when she was out of the room) (John
Aff. ¶ 8), he argues that the phone was clearly visible
on his bedside table the entire time and that she watched him
eventually get out of bed and turn it off. (Id.
¶¶ 8-10.) Later, in February 2014, Defendant
uploaded the video to a pornographic web site called X-Tube,
again without Plaintiff's knowledge or consent.
(Pl.'s 56.1 ¶ 3; John Aff. ¶ 14.) Defendant
sent the link to the video to at least three other
individuals. (Pl.'s 56.1 ¶ 4; John Aff. ¶ 14.)
discovered the video less than two days after it was posted
and confronted Defendant, who took steps to remove the video
from the Internet right away. (Def.'s 56.1 ¶ 16.)
Altogether, the video received over 13, 000 views. (Pl.'s
56.1 ¶ 3.) Plaintiff claims that Defendant's conduct
has caused her severe emotional distress and anguish, leaving
her depressed, anxious, humiliated, and embarrassed.
(Id. ¶ 5.) Defendant disputes Plaintiff's
description of the ramifications of these events on her
health and emotional well-being, because Plaintiff has not
provided medical confirmation of her alleged injuries.
(Def.'s 56.1 ¶ 5.)
aforementioned conduct, the New York County District
Attorney's Office charged Defendant with violating New
York Penal Law § 250.45(1) and § 250.60(2)-unlawful
surveillance in the second degree and dissemination of an
unlawful surveillance in the first degree, respectively.
(Def.'s 56.1 ¶ 6.) Defendant first pled guilty to
these charges in open court on May 12, 2015. (Pl.'s 56.1
¶ 7.) On November 10, 2015, Defendant withdrew his
previously entered plea and entered a guilty plea to reduced
charges of attempted unlawful surveillance and
attempted dissemination of an unlawful surveillance,
pursuant to the terms of his plea agreement with the District
Attorney. (Id. ¶ 8; Sash Decl. Ex. 2 at 6
Defendant was ultimately sentenced based on the reduced
charges, his allocution from the later proceeding establishes
the same intentional conduct that established his guilt for
the crimes as originally charged. (See Sash Decl.
Ex. 2 at 6 (¶¶ 16-20) (“defendant . . .
allocut[ed] to the completed crimes because that is what he
did”).) In particular, Defendant admitted to unlawfully
videotaping the private sexual encounter:
Defendant: For my own and another person's amusement and
entertainment, I intentionally used and installed .
. . 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.
(Pl.'s 56.1 ¶ 9 (emphasis added); see also
Sash Decl. Ex. 2.) Defendant similarly admitted to unlawfully
disseminating the video he created:
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 . . . 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.
(Id. (emphasis added).)
both crimes, Defendant was sentenced to three years of
probation in lieu of jail time. (Sash Decl. Ex. 2 at 11
commenced this tort based diversity action on January 15,
2016. (See Compl.
3, ECF No. 1.) Her motion for summary judgment on the issue
of liability was fully briefed as of December 30, 2016. (ECF
Standard on a Motion for Summary Judgment
“court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of pointing to evidence in the record, “including
depositions, documents [and] affidavits or declarations,
” id. at 56(c)(1)(A), “which it believes
demonstrate[s] the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The moving party may also support an assertion
that there is no genuine dispute by “showing . . . that
[the] adverse party cannot produce admissible evidence [in]
support” of such a contention. Fed.R.Civ.P.
56(c)(1)(B). If the moving party fulfills its preliminary
burden, the onus shifts to the non-moving party to identify
“specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (internal citation and quotation
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, ” a motion
for summary judgment should fail. Id. at 248;
accord Benn v. Kissane, 510 F. App'x 34, 36 (2d
Cir. 2013) (summ. order). Courts must “constru[e] the
evidence in the light most favorable to the non-moving party
and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks
omitted). The party asserting that a fact is genuinely
disputed must support their assertion by “citing to
particular parts of materials in the record” or
“showing that the materials cited do not establish the
absence . . . of a genuine dispute.” Fed.R.Civ.P.
56(c)(1). “Statements that are devoid of any specifics,
but replete with conclusions, are insufficient to defeat a
properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d
nonmoving party “may not rely on conclusory allegations
or unsubstantiated speculation.” FDIC v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal
citation and quotation marks omitted). Similarly, “a
party cannot create an issue of fact by submitting an
affidavit in opposition to summary judgment that contradicts
prior deposition testimony.” Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing
Perma Research and Dev. Co. v. Singer Co., 410 F.2d
572, 578 (2d Cir. 1969) (such affidavits “greatly
diminish the utility of summary judgment as a procedure for
screening out sham issues of fact”). But the mere fact
that a non-movant's factual allegations in opposition are
“self-serving” does not automatically render them
insufficient to defeat summary judgment. Danzer v. Norden
Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998). Instead,
summary judgment should be granted when a party “fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, ” where
“that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
reviewing the record, “the judge's function is not
himself to weigh the evidence and determine the truth of the
matter, ” nor is it to determine a witness's
credibility. Anderson, 477 U.S. at 249. Rather,
“[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.”
Id. at 250. If the Court finds that one party to a
case has “no real support for its version of the facts,
” a motion for summary judgment should be granted.
Community of Roquefort v. William Faehndrich, Inc.,
303 F.2d 494, 498 (2d Cir. 1962).
collateral estoppel, once an issue is actually and
necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on
a different cause of action involving a party to the prior
litigation.” Montana v. United States, 440
U.S. 970, 973 (1979). “Collateral estoppel, like the
related doctrine of res judicata, has the dual purpose of
protecting litigants from the burden of relitigating an
identical issue with the same party or his privy and of
promoting judicial economy by preventing needless
litigation.” Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979); see also Allen v.
McCurry, 449 U.S. 90, 94 (1980).
York law governs the preclusive effect of a judgment from a
New York state court. See Migra v. Warren City School
District Board of Education, 465 U.S. 75, 81 (1984)
(“the preclusive effect in federal court of
petitioner's state-court judgment is determined by
[state] law.”); see also Wight v. BankAmerica
Corp., 219 F.3d 79, 87-88 (2d Cir. 2000). The Second
Circuit has recognized that there is “no significant
difference” between New York preclusion law and federal
preclusion law. Pike v. Freeman, 266 F.3d 78, 90 n.
14 (2d Cir. 2001); see also Marvel Characters, Inc. v.
Simon, 310 F.3d 280, 286 (2d Cir. 2002) (“The
parties agree that there is no discernable difference between
federal and New York law concerning res judicata and
doctrine of collateral estoppel under New York law is
applicable upon a showing of two factors: “First, the
identical issue necessarily must have been decided in the
prior action and be decisive of the present action, and
second, the party to be precluded from relitigating the issue
must have had a full and fair opportunity to contest the
prior determination.” Kaufman v. Eli Lilly &
Co., 65 N.Y.2d 449, 455 (1985). The federal test for the
application of collateral estoppel distributes these same
elements into a four-part test: “(1) the identical
issue was raised in a previous proceeding; (2) the issue was
‘actually litigated and decided' in the previous
proceeding; (3) the party had a ‘full and fair
opportunity' to ...