Harris, St. Laurent & Chaudhry LLP, New York (Priya
Chaudhry and Joseph Gallagher of counsel), and Mitchell
Silberberg & Knupp LLP, New York (Jeffrey Movit and
Christine Lepera of counsel), for appellant.
Celli Brinckerhoff & Abady LLP, New York (Zoe Salzman,
Jonathan S. Abady and Ilann M. Maazel of counsel), for
Kirkland & Ellis LLP, New York (Yosef J. Riemer, Ashley
S. Gregory and Joseph M. Sanderson of counsel), for Her
Justice, American Civil Liberties Union, Sanctuary for
Families, New York City Alliance Against Sexual Assault,
National Organization for Women-New York City, Women's
Justice NOW, FreeFrom, National Women's Law Center,
Transgender Legal Defense & Education Fund, Anti Violence
Project, Black Women's Blueprint and C.A. Goldberg PLLC,
Stroock & Stroock & Lavan LLP, New York (Jennifer S.
Recine, Daniel H. Lewkowicz and Natalie R. Birnbaum of
counsel), for Professor Sally F. Goldfarb, Professor Julie
Goldscheid, Professor Victoria Nourse and Legal Momentum,
Tom, J.P. Ellen Gesmer, Cynthia S. Kern, Peter H. Moulton,
appeals from an order of the Supreme Court, New York County
(Robert R. Reed, J.), entered August 15, 2018, which denied
his motion to dismiss the complaint and to strike the Jane
central question in this appeal is: what must a plaintiff
allege in order to state a cause of action under New York
City's Victims of Gender-Motivated Violence Protection
Law (Administrative Code of City of NY § 10-1101 et
York City Council passed the Victims of Gender-Motivated
Violence Protection Law (VGM) in 2000 in response to the
United States Supreme Court's decision in United
States v Morrison (529 U.S. 598');">529 U.S. 598');">529 U.S. 598');">529 U.S. 598 ). The
Morrison Court struck down the federal civil rights
remedy for gender-motivated crimes contained in the Violence
Against Women Act (42 USC § 13981) (VAWA), finding the
remedy an unconstitutional exercise of Congressional power.
VGM, as did its federal predecessor, provides a civil cause
of action for victims of crimes of violence "committed
because of gender or on the basis of gender, and due, at
least in part, to an animus based on the victim's
gender" (Administrative Code § 10-1103) and allows
a victim of such a gender-based violent crime to collect
money damages from the perpetrator.
decision on appeal, Supreme Court denied defendant's
motion to dismiss plaintiff's amended complaint. The
court also denied defendant's alternative request to
strike allegations concerning other alleged sexual assaults
from the amended complaint pursuant to CPLR 3013 and 3024(b).
Supreme Court held, inter alia, that plaintiff's amended
complaint adequately stated a cause of action under VGM by
alleging that defendant had raped and sexually assaulted her,
and spoke to her during the course of the alleged rape in
ways that displayed gender-based animus. Supreme Court also
found that allegations that defendant had sexually assaulted
other women were relevant, at the pleading stage, to
establish the requisite gender-based animus. Supreme
Court's decision was consistent with state and federal
trial court precedents that require such allegations of
additional facts tending to show gender-based animus even
where the alleged offense is rape or sexual assault. We write
to clarify that these additional allegations are not
necessary to prove animus in alleged rape and sexual assault
cases such as the one at bar.
CPLR 3211(a)(7), we evaluate the sufficiency of the amended
complaint by assuming that the facts alleged therein are true
and according plaintiff the benefit of every possible
favorable inference (Wilson v Dantas, 29 N.Y.3d
1051, 1056-1057 ).
January 2013, plaintiff was a 26-year - old publicist for a
company that hosted film premieres in New York City.
Defendant was, and remains, a prominent film and television
producer, director and screenwriter. He was 59 at the time of
the events alleged in the amended complaint. The two had a
passing acquaintance from encountering each other at
entertainment industry events.
January 31, 2013, the parties both attended a premiere party
in New York City. At the end of the party defendant offered
to give plaintiff a ride home. She accepted. Once they were
in the car, defendant invited plaintiff to come to his
apartment for a drink. Plaintiff suggested that they go to a
public bar instead. When defendant insisted, plaintiff agreed
to go to his apartment.
amended complaint alleges that once they were in
defendant's apartment he immediately began to make
unwanted sexual advances. Plaintiff told defendant to stop.
Defendant said, "You're scared of me, aren't
you?" and continued. As she resisted, defendant asked
plaintiff her age. Plaintiff told him she was 26 and
defendant replied, "Don't fucking act like an 18
year old." Plaintiff asked defendant, "Why are you
doing this?" He replied, "What do you mean?
You've been flirting with me for months." The
amended complaint alleges that plaintiff's continued
resistance, including telling defendant, "No,"
repeatedly, seemed to excite him. According to the amended
complaint defendant eventually forced plaintiff to give him
oral sex; then he digitally penetrated her and commented that
she was "nice and tight"; then he raped her.
answer and his motion to dismiss defendant vigorously
contests plaintiff's version of their interactions and
asserts that the parties' sexual relations were
2017 plaintiff's counsel contacted defendant and
described plaintiff's allegations. The parties differ in
their descriptions of what happened next. Plaintiff alleges
that defendant's counsel subsequently asked plaintiff to
come up with a settlement figure. Defendant contends that
plaintiff's counsel wrote him directly, enclosing a draft
complaint. He avers that he and his counsel vigorously denied
the allegations in the draft complaint. According to
defendant, plaintiff's counsel demanded $9 million to
settle out of court.
brought an action in New York County in December 2017 for
intentional infliction of emotional distress arising from
plaintiff's settlement demand and threat to sue.
then filed her complaint, asserting a cause of action under
VGM based on the January 31, 2013 incident. The two cases
were assigned to a single justice. In January 2018, plaintiff
filed an amended complaint with a slightly expanded account
of the January 31 incident and allegations of three other
sexual assaults allegedly perpetrated by defendant against
other women in 1996, 2008 and 2015 (the Jane Doe
parties cross-moved to dismiss the respective complaints.
Defendant also moved in the alternative to strike the Jane
Doe allegations in plaintiff's amended complaint. Supreme
Court dismissed defendant's intentional infliction of
emotional distress claim, and allowed plaintiff's claim
under VGM to go forward. The court declined to strike the
amended complaint's description of the Jane Doe
allegations. In so holding, the court found that the amended
complaint must allege facts that demonstrate some
gender-based animus against women as a group, and not just
against plaintiff. The court found indications of such animus
in the allegations of statements made by defendant during the
course of the incident, and in the fact that he allegedly
committed sexual assaults on other women. The court also
allowed plaintiff to further amend her complaint to add a
claim under CPLR 213-c. Defendant does not appeal from that
ruling, nor does he appeal the court's dismissal of his
intentional infliction of emotional distress claim.
provides a civil cause of action for "injur[y] by an
individual who commit[ted] a crime of violence motivated by
gender" (Administrative Code § 10-1104). The term
"crime of violence" is defined as "an act or
series of acts that would constitute a misdemeanor or felony
against the person as defined in state or federal law... if
the conduct presents a serious risk of physical injury to
another, whether or not those acts actually resulted in
criminal charges, prosecution or conviction"
(Administrative Code § 10-1103). The term "crime of
violence motivated by gender" is defined as a
"crime of violence committed because of gender or on the