034.pdf

Case 1:19-cv-10577-LJL-DCF Document 34 Filed 02/28/20 Page 1 of 20

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JANE DOE 1000,

Plaintiff,

v.

DARREN K. INDYKE and RICHARD D. KAHN, in
their capacities as the executors of the ESTATE OF
JEFFREY E. EPSTEIN,

Defendants.

Case No. 1:19-cv-10577-LJL-DCF

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT
OF THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT

TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022
Tel: 212-704-6000
Fax: 212-704-6288

Attorneys for Defendants

Case 1:19-cv-10577-LJL-DCF Document 34 Filed 02/28/20 Page 2 of 20

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ................................................................................................... 1
STATEMENT OF ALLEGED FACTS ......................................................................................... 2
A. Plaintiff Alleges Decedent Sexually Assaulted Her In And Around 1999,
When She Was An Adult ....................................................................................... 2
ARGUMENT ................................................................................................................................. 4
A. Legal Standard: Plaintiff’s Legal Conclusions, Labels, And Formulaic
Recitations Of The Elements Of Her Causes Of Action Are Insufficient To
Revive Her Time-Deserved Claims ....................................................................... 4
B. Plaintiff’s Claims Expired Many Years Ago And Must Be Dismissed ................. 4
C. Plaintiff’s Attempts To Invoke Extraordinary Statute Of Limitations
Exceptions Fail....................................................................................................... 5
i. CPLR § 215(8)(a) is inapplicable because the Indictment
concerned sex trafficking of minors, not adults such as Plaintiff .............. 5
ii. Plaintiff fails to meet her burden to allege “extraordinary”
circumstances sufficient to justify tolling or equitable estoppel ................ 8
D. Plaintiff’s Claim For Punitive Damages Must Be Dismissed Because They
Are Precluded By New York Law ....................................................................... 12
CONCLUSION ............................................................................................................................ 14

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TABLE OF AUTHORITIES

Page(s)

Cases

Abercrombie v. College,
438 F. Supp. 2d 243 (S.D.N.Y. 2006)................................................................................11, 12

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................................4

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................4

Blissett v. Eisensmidt,
940 F. Supp. 449 (N.D.N.Y. 1996) ..........................................................................................13

Boos v. Runyon,
201 F.3d 178 (2d Cir. 2000).......................................................................................................9

Cerbone v. Int’l Ladies’ Garment Workers’ Union,
768 F.2d 45 (2d Cir. 1985).........................................................................................................9

Christodoulou v. Terdeman,
262 A.D.2d 595 (2d Dept. 1999) ..............................................................................................6

Conklin v. Maidenbaum,
No. 12-cv- 3606, 2013 U.S. Dist. LEXIS 113975 (S.D.N.Y. Aug. 13, 2013)
(Ramos, J.) ...............................................................................................................................11

Crucible Materials Corp. v. N.Y. Power Auth.,
50 A.D.3d 1353 (Third Dept. 2008) ..........................................................................................8

Dep’t of Econ. Dev. v. Arthur Andersen & Co.,
747 F. Supp. 922 (S.D.N.Y. 1990) ..........................................................................................11

Deutsch v. Novartis Pharms. Corp.,
723 F. Supp. 2d 521 (E.D.N.Y. 2010) .....................................................................................13

Fairley v. Collins,
No. 09-Civ-6894 (PGG), 2011 U.S. Dist. LEXIS 26536 (Mar. 15, 2011
S.D.N.Y.) (Gardephe, J.)............................................................................................................8

Gallina v. Thatcher,
No. 2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct.
23, 2018) ................................................................................................................................6, 7

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TABLE OF AUTHORITIES
(continued)

Page

Graham v. Henderson,
224 F.R.D. 59 (N.D.N.Y. 2004)...............................................................................................13

Guidi v. Inter-Continental Hotels Corp.,
No. 95-CV-9006 (LAP), 2003 U.S. Dist. LEXIS 6390 (S.D.N.Y. Apr. 16,
2003) ........................................................................................................................................13

In re Higgins,
270 B.R. 147 (Bankr. S.D.N.Y. 2001) .......................................................................................9

Johnson v. Nyack Hosp.,
86 F.3d 8 (2d Cir. 1996).............................................................................................................9

Kashef v. BNP Paribas S.A.,
925 F.3d 53 (2d Cir. 2019).........................................................................................................8

Kunica v. St. Jean Fin.,
No. 97 Civ. 3804, 1998 U.S. Dist. LEXIS 11867 (S.D.N.Y. July 29, 1998)
(Sweet, J.).................................................................................................................................12

Lohr v. Byrd,
522 So. 2d 845 (Fla. 1988).......................................................................................................13

McElligott v. City of N.Y.,
No. 15-cv-7107 (LGS), 2017 U.S. Dist. LEXIS 201829 (S.D.N.Y. Dec. 7,
2017) ..........................................................................................................................................6

Moll v. U.S. Life Title Ins. Co. of N.Y.,
700 F. Supp. 1284 (S.D.N.Y. 1988).........................................................................................11

Poindexter v. Zacharzewski,
No. 18-14155, 2018 U.S. Dist. LEXIS 189861 (Nov. 5, 2018 S.D. Fla.) ...............................13

Purdy v. Consumers Distrib. Co.,
648 F. Supp. 980 (S.D.N.Y. 1986) (Cedarbaum, J.) ................................................................12

Simons v. Marriott Corp.,
No. 92 Civ. 3762 (SWK), 1993 U.S. Dist. LEXIS 14365 (S.D.N.Y. Oct. 12,
1993) ........................................................................................................................................12

SJB v. N.Y.C. Dep’t of Educ.,
No. 03 Civ. 6653, 2004 U.S. Dist. LEXIS 13227 (S.D.N.Y. July 14, 2004)
(Buchwald, J.) ..........................................................................................................................12

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TABLE OF AUTHORITIES
(continued)

Page

Smith v. N.Y.C. Dep’t of Corr.,
No. 09-civ-7639, 2010 U.S. Dist. LEXIS 137152 (S.D.N.Y. 2010) .........................................9

Starr Indem. & Liab. Co. v. Am. Claims Mgmt.,
No. 14-cv-0463-JMF, 2015 U.S. Dist. LEXIS 60272 (S.D.N.Y. May 7, 2015)......................12

The Cookware Co. (USA), LLC v. Austin,
No. 15 Civ. 5796, 2016 U.S. Dist. LEXIS 177691 (S.D.N.Y. Dec. 8, 2016)
(Batts, J.) ..................................................................................................................................12

In re U.S. Lines, Inc.,
318 F.3d 432 (2d Cir. 2003).......................................................................................................9

Viti v. Guardian Life Ins. Co. of Am.,
No. 10-cv-2908 (ALC) (MHD), 2012 U.S. Dist. LEXIS 189633 (S.D.N.Y.
Oct. 5, 2012) ..............................................................................................................................9

Yesh Diamonds, Inc. v. Yashaya,
No. 09-CV-2016 (DLI) (RER), 2010 U.S. Dist. LEXIS 101744 (E.D.N.Y.
2010) ....................................................................................................................................9, 10

Statutes

EPTL § 11-3.2 (a)(1)......................................................................................................................13

Fla. Stat. § 95.11 (3)(O) ...............................................................................................................1, 4

2019 N.Y. Laws 315, 2019 N.Y ..................................................................................................5, 6

New York General Construction Law § 37-a ................................................................................13

New York Penal Law Article 130 ....................................................................................................3

Other Authorities

CPLR § 214(5) .............................................................................................................................1, 4

CPLR § 215(3) .............................................................................................................................1, 4

CPLR § 215(8)(a) .................................................................................................................. passim

Federal Rule of Civil Procedure 12(b)(6) ....................................................................................1, 9

N.Y. C.P.L.R. § 213-c ..............................................................................................................3, 4, 5

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TABLE OF AUTHORITIES
(continued)

Page

97 NY Jur Statutes § 185 .................................................................................................................7

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Defendants Darren K. Indyke and Richard D. Kahn, as Co-Executors of the Estate of
Jeffrey E. Epstein (the “Co-Executors”), submit this memorandum of law in support of their
motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff’s Complaint (ECF
No. 1) because it is time-barred, and Plaintiff’s claim for punitive damages because it is prohibited
by a New York statute and well-established Florida law.

PRELIMINARY STATEMENT

This action is time-barred. Plaintiff alleges that, in or about 1999, when she was an adult,
Jefferey E. Epstein (“Decedent”), now deceased, committed sexual offenses against her in New
York and Florida. (Compl. ¶¶ 16, 38, 40, 42, 50, 55.) Plaintiff asserts two causes of action—battery
and intentional infliction of emotional distress—and demands punitive damages. (Id. ¶¶ 49-59, p.
13.) Plaintiff’s causes of action expired many years ago per New York’s one- and three-year
statutes of limitations (CPLR §§ 214(5), 215(3)) and Florida’s four-year statute of limitations (Fla.
Stat. § 95.11 (3)(O)).

In apparent recognition that her claims are time-barred, Plaintiff erroneously alleges that
(i) a New York statute of limitations enacted last year revives her claims, notwithstanding the
enacting law expressly and unequivocally provides it does not apply retroactively to claims that
are already time-barred, (ii) her claims are timely pursuant to CPLR § 215(8)(a),¹ (iii) her claims
were equitably tolled, and (iv) the Co-Executors are equitably estopped from asserting a statute of
limitations defense. (Compl. ¶¶ 12-14.) Each of these arguments fails as a matter of law.

The 2019 New York law enacting a new, longer statute of limitations is very clear: it does
not apply retroactively except “where the applicable statute of limitations in effect on the date of

__________
¹ CPLR § 215(8)(a) provides: “Whenever it is shown that a criminal action against the same defendant has been
commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff
shall have at least one year from the termination of the criminal action … to commence the civil action.” (Emphasis
added.)

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such act or omission has not yet expired.” 2019 N.Y. Ch. 315, 2019 N.Y. SB 6574, §4. Plaintiff’s
causes of action expired many years before the new law went into effect.

Moreover, CPLR § 215(8)(a) does not apply here because Decedent’s criminal indictment
(the “Indictment”), which concerns alleged sexual trafficking of minors, has nothing to do with
Plaintiff, who alleges sexual assault when she was an adult. Plaintiff also fails to meet her burden
to allege extraordinary circumstances sufficient to justify tolling or equitable estoppel.

Plaintiff’s demands for punitive damages must also be dismissed as a matter of law. Both
New York and Florida law bar recovery of punitive damages from a decedent tortfeasor’s estate—
i.e., exactly what Plaintiff is seeking here.

STATEMENT OF ALLEGED FACTS

A. Plaintiff Alleges Decedent Sexually Assaulted Her In And Around 1999, When
She Was An Adult

Plaintiff alleges she met Decedent in “late 1999” at his New York residence. (Compl. ¶
38.) Plaintiff does not allege that she was a minor at this time. According to Plaintiff, she went to
Decedent’s residence to discuss modeling opportunities. (Id. ¶¶ 38-39.) Plaintiff alleges that, at
some point thereafter, she moved into an apartment owned by Decedent on 66th Street in
Manhattan. (Id. 40.)

Plaintiff further alleges that Decedent had “recruiters” who would call her to visit Decedent
at his residence to give him a massage. (Id.) Decedent allegedly sexually assaulted Plaintiff during
these massages. (Id.) Plaintiff also alleges, with no further details, that Decedent flew her to
Florida, where he sexually assaulted her again. (Id. ¶ 42.) Plaintiff also claims Decedent promised
her modeling opportunities “for years, up until the last time [she] saw Epstein,” but does not
provide even an approximate date identifying when that was or when the alleged abuse ended. (Id.
¶ 45.)

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Apparently recognizing that her claims are time-barred under applicable statutes of
limitations, Plaintiff alleges a few generic legal conclusions that also appear in other time-barred
complaints against the Co-Executors that Plaintiff’s counsel filed in this District on behalf of other
individuals. Thus, Plaintiff alleges in conclusory fashion:

• This action has been timely filed pursuant to N.Y. C.P.L.R. § 215(8)(a), which provides
that a plaintiff shall have at least one year from the termination of a criminal action
against the same defendant to commence an action with respect to the event or
occurrence from which the criminal action arose. A criminal action against [Decedent]
with respect to the same sex trafficking enterprise from which Plaintiff’s claims arise
was terminated on August 29, 2019. (Id. ¶ 12.)

• This action has also been timely filed pursuant to N.Y. C.P.L.R. § 213-c, which
provides that a plaintiff shall have 20 years to file civil claims “for physical,
psychological or other injury or condition suffered by such person as a result of conduct
which would constitute” certain sex crimes under New York Penal Law Article 130.
[Decedent] and Ghislaine Maxwell sexually assaulted Plaintiff by forcible compulsion
within 20 years of filing this Complaint, and that sexual assault constitutes one or more
sex crimes described in N.Y. C.P.L.R. § 213-C. (Id. ¶ 13.)

• Any statute of limitations applicable to Plaintiff’s claims is tolled due to the continuous
and active deception, duress, threats of retaliation, and other forms of misconduct that
[Decedent] and his co-conspirators used to silence his many victims, including
Plaintiff. [Decedent]’s actions deprived Plaintiff of the opportunity to commence this
lawsuit before his death. Until his death, Plaintiff feared that [Decedent] and his co-
conspirators would harm her or her family, or ruin her life, if she came forward. (Id. ¶
14.)

• Defendants are equitably estopped from asserting a statute of limitations defense.
Allowing Defendants to do so would be unjust. [Decedent] and his co-conspirators
intimidated each of his victims into silence by threatening their lives and their
livelihoods. They therefore prevented Plaintiff from commencing this lawsuit before
his death. By using threats, along with his wealth and power, Epstein was able to escape
punishment for his crimes against countless young women and underage girls for the
duration of his life. (Id. ¶15.)

These rote, non-specific allegations cannot rescue Plaintiff’s time-barred claims.

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ARGUMENT

A. Legal Standard: Plaintiff’s Legal Conclusions, Labels, And Formulaic
Recitations Of The Elements Of Her Causes Of Action Are Insufficient To
Revive Her Time-Deserved Claims

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). While a Court must normally accept as true all well-pleaded factual allegations
in a complaint and draw all inferences in a plaintiff’s favor, those principles are “inapplicable to
legal conclusions.” Id. at 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 556
(2007)). Thus, a pleading that offers only “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (2007).

B. Plaintiff’s Claims Expired Many Years Ago And Must Be Dismissed

Plaintiff asserts causes of action for battery and intentional infliction of emotional distress
arising out of events starting in late 1999 and occurring in New York and Florida, all when Plaintiff
was an adult. Each cause of action is time-barred and must be dismissed.

Under New York law, causes of action sounding in battery must be commenced within one
year of accrual (CPLR § 215(3)); and claims sounding in personal injury, within three years (CPLR
§ 214(5)). Under Florida law, the statute of limitations for Plaintiff’s claims is four years. See Fla.
Stat. § 95.11(3)(O).

Plaintiff does not allege that she endured the alleged sexual assaults for a period of time
that would permit her to avoid these statutes of limitations. (See Compl. ¶¶ 2, 45.) Plaintiff’s failure
to allege when Decedent’s alleged sexual assaults ended is either a tacit admission that this action
is time-barred or a fatal pleading failure. In either event, this action must be dismissed.

In Plaintiff’s response to the Co-Executors’ pre-motion letter (ECF Doc. 25, § I), Plaintiff
erroneously claims the current 20-year statute of limitations in CPLR § 213-c applies to her claims.

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However, CPLR § 213-c is not a revival statute. CPLR § 213-c, which became effective as of
September 18, 2019, does not apply retroactively except “where the applicable statute of
limitations in effect on the date of such act or omission has not yet expired.” 2019 N.Y. Laws 315,
2019 N.Y. SB 6574, § 4.

Plaintiff does not allege—and did not argue in her pre-motion letter—that any of her claims
were timely as of September 18, 2019. Therefore, CPLR § 213-c does not apply.

Instead, Plaintiff argued in her pre-motion letter that, because the 2019 law rewriting CPLR
§ 213-c did not set forth the prohibition on retroactive application in the text of CPLR § 213-c
itself, Plaintiff should be able to invoke it. (ECF Doc. 25, § I.) That is wrong.

C. Plaintiff’s Attempts To Invoke Extraordinary Statute Of Limitations
Exceptions Fail

i. CPLR § 215(8)(a) is inapplicable because the Indictment concerned sex
trafficking of minors, not adults such as Plaintiff

Nor does CPLR § 215(8)(a) apply here. CPLR § 215(8)(a) provides: “Whenever it is shown
that a criminal action against the same defendant has been commenced with respect to the event
or occurrence from which a claim governed by this section arises, the plaintiff shall have at least
one year from the termination of the criminal action … to commence the civil action.” (emphasis
added.)

Decedent’s Indictment, which Plaintiff attaches to her Complaint, was not commenced
with respect to Plaintiff. Rather, the Indictment charges Decedent sexually abused “minor girls”
from 2002 to 2005 (Compl., Ex. A at ¶¶ 1, 20), stating throughout that it concerns sex trafficking
of minors. (Id. ¶¶ 2-4, 6, 8, 11-15, 18-20, 22.) Plaintiff does not allege she was a minor when
Decedent sexually assaulted her in or around 1999. Therefore, this action and the Indictment arise
from different occurrences.

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New York courts apply CPLR § 215(8)(a) narrowly. See Christodoulou v. Terdeman, 262
A.D.2d 595, 596 (2d Dept. 1999) (CPLR § 215(8)(a) applied only to claims based on events of
February 26, 1993 and December 28, 1993, because it was only in connection with events of those
two days that a criminal prosecution was commenced against defendant); Gallina v. Thatcher, No.
2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct. 23, 2018) (CPLR §
215(8)(a) inapplicable where incidents charged in criminal action and those alleged in civil action
occurred on different dates); McElligott v. City of N.Y., No. 15-cv-7107 (LGS), 2017 U.S. Dist.
LEXIS 201829, at *13 (S.D.N.Y. Dec. 7, 2017) (CPLR § 215(8)(a) inapplicable to claims against
civil defendants not charged as co-defendants in criminal action, notwithstanding same events gave
rise to both actions).

Gallina is especially instructive. In that case, an individual sued an attorney for battery and
other claims based on the core allegation that, over the course of two years, the attorney committed
various sexual misconduct against the plaintiff, including sexual assault. 2018 N.Y. Misc. LEXIS
8435, at *1. Defendant had also been criminally charged with forceable touching for incidents that
occurred with the plaintiff in 2017. Id. at *3. The court dismissed as time-barred plaintiff’s battery
counts based on incidents alleged to have occurred in 2016. Id. at *2-3.

In doing so, the court rejected plaintiff’s argument that CPLR § 215(8)(a) applied to the
2016 incidents, finding:

Plaintiff argues that the July and October 2016 incidents are part of the same
ongoing course of events as the February, March and May 2017 incidents
and should therefore be deemed timely commenced … the case law does
not support Plaintiff’s interpretation of … CPLR §215(8)(a). The criminal
instruments … demonstrate that Defendant was charged for incidents
occurring on three (3) specific dates … Pursuant to CPLR §215(8)(a),
tolling would apply only to claims based on these dates, “because it was
only in connection with the events of these [three] days that a criminal
prosecution was commenced against the defendant.” Christodoulou v.
Terdeman, 262 AD2d 595, 596 [2d Dept. 1999]. As criminal charges were

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not commenced with respect to the July 2016 and October 2016 events, the
tolling provisions of CPLR §215(8) do not apply.

Id. at *3-4.

Here, Plaintiff asserts a more tenuous connection between this action and the Indictment
than the one unsuccessfully asserted by the plaintiff in Gallina (and the other cited cases). The
Court should therefore reject Plaintiff’s argument for the application of CPLR § 215(8)(a).

In Plaintiff’s response to the Co-Executors’ pre-motion letter (ECF No. 25, § I), Plaintiff
asserts two erroneous arguments for application of CPLR § 215(8)(a). First, Plaintiff argues that
CPLR § 215(8)(a) does not require the Indictment to expressly identify Plaintiff as one of
Decedent’s victims. This is a strawman argument: no one argues otherwise.

However, Plaintiff is required to show—but cannot show under the circumstances here—
that this action and the Indictment arise from the same event. They do not. Not only does the
Indictment not refer to Plaintiff, it also does not refer to misconduct of the type that Plaintiff alleges
here. The Indictment could not be clearer: it concerns sex trafficking of minors. Plaintiff does not
allege she was a minor when Decedent sexually assaulted her. Nor does she allege anything
establishing she was a sex trafficking victim.

Second, Plaintiff urges a broad construction of CPLR § 215(8)(a) that effectively rewrites
it by rendering the limitation therein—“with respect to the event or occurrence from which a
claim governed by this section arises”—meaningless. Plaintiff effectively argues that, unless the
Indictment expressly rules out that it arises from the same event as this action, then Plaintiff is
entitled to invoke CPLR § 215(8)(a). That argument is contrary to basic principles of statutory
interpretation prohibiting a reading of a statute that would render its words meaningless (see 97
NY Jur Statutes § 185), the case law cited above, a plain reading of the Indictment and common
sense.

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Plaintiff cites a single case in support of this erroneous argument, Kashef v. BNP Paribas
S.A., 925 F.3d 53 (2d Cir. 2019). However, Kashef is distinguishable on its face, since the civil
and criminal actions in that case both arose out of the same conspiracy between BNP and Sudan
to violate U.S. sanctions. Kashef, 925 F.3d at 63.

Here, by contrast, Plaintiff’s allegations—that she was an adult whom Decedent sexually
assaulted—do not comport with the alleged scheme to traffic minors set forth repeatedly in the
Indictment. Nor does Plaintiff sufficiently set forth allegations establishing she was a trafficking
victim in any respect. Therefore, while Plaintiff may claim she, too, is a victim of Decedent, she
is not a victim by reason of the events giving rise to the Indictment.

Plaintiff also cites a Third Department case, Crucible Materials Corp. v. N.Y. Power Auth.,
50 A.D.3d 1353 (Third Dept. 2008), to support her separate assertion that the Court must permit
her to invoke CPLR § 215(8)(a) based on statutory interpretation principles. Yet Crucible does not
concern CPLR § 215(8)(a). Further, in that case, the Third Department reaffirmed the principle
that, when interpreting a statute, courts “giv[e] clear effect to the plain meaning of the words
employed.” Crucible Materials Corp., 50 A.D.3d at 1355-56. This is exactly what the Co-
Executors urge here and what Plaintiff argues against—namely, a proper interpretation of CPLR
§ 215(8)(a) that gives meaning to the words “with respect to the event or occurrence from which
a claim governed by this section arises.” The Court should reject Plaintiff’s attempt to rewrite the
statute.

ii. Plaintiff fails to meet her burden to allege “extraordinary” circumstances
sufficient to justify tolling or equitable estoppel

Plaintiff fails to meet her burden to allege extraordinary circumstances sufficient to justify
tolling or equitable estoppel. “Second Circuit cases discussing equitable tolling set a stringent
standard for its application.” Fairley v. Collins, No. 09-Civ-6894 (PGG), 2011 U.S. Dist. LEXIS

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26536, at *16 (Mar. 15, 2011 S.D.N.Y.) (Gardephe, J.) (finding equitable tolling did not apply and
granting defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss complaint on statute of limitations
grounds). Equitable tolling only applies where a plaintiff is “prevented in some extraordinary way
from exercising h[er] rights.” Viti v. Guardian Life Ins. Co. of Am., No. 10-cv-2908 (ALC) (MHD),
2012 U.S. Dist. LEXIS 189633, at *30 (S.D.N.Y. Oct. 5, 2012), adopted by, 2013 U.S. Dist.
LEXIS 174145 (S.D.N.Y. Dec. 11, 2013) (emphasis added) (citing Smith v. N.Y.C. Dep’t of Corr.,
No. 09-civ-7639, 2010 U.S. Dist. LEXIS 137152, at *2 (S.D.N.Y. 2010); Johnson v. Nyack Hosp.,
86 F.3d 8, 12 (2d Cir. 1996)).

Under this doctrine, a court may, “under compelling circumstances, make narrow
exceptions to the statute of limitations … ‘to prevent inequity.’” Id. (emphasis added) (citing Yesh
Diamonds, Inc. v. Yashaya, No. 09-CV-2016 (DLI) (RER), 2010 U.S. Dist. LEXIS 101744, at *2
(E.D.N.Y. 2010); In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003)). “That the doctrine is to
be employed only sparingly—in ‘extraordinary’ and ‘compelling’ circumstances—is reflected in
the fact that the plaintiff bears the burden of persuasion to show that tolling is justified.” Id.
(emphasis added) (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). A late-filing party
seeking equitable tolling must also demonstrate she acted with “reasonable diligence” in pursuing
her claims during the period she seeks to toll. Id. at *32 (citation omitted).

Equitable estoppel only applies where a plaintiff knows her cause of action exists, but the
defendant’s conduct causes her to delay bringing suit. See Yesh, 2010 U.S. Dist. LEXIS 101744,
at *5 (citing Cerbone v. Int’l Ladies’ Garment Workers’ Union, 768 F.2d 45, 50 (2d Cir. 1985)).
“The rationale behind this equitable doctrine is to protect the person who brings their action after
it would normally be barred because she was ‘lulled’ into believing that she should delay pursuing
her cause of action.” Id. (quoting In re Higgins, 270 B.R. 147, 158 (Bankr. S.D.N.Y. 2001)).

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Equitable estoppel requires a plaintiff to show: “(i) the defendant made a definite misrepresentation
of fact, and had reason to believe that the plaintiff would rely on it; and (ii) the plaintiff reasonably
relied on that misrepresentation to h[er] detriment.” Id. (citation omitted). Tolling is inappropriate
where, as here, a plaintiff fails to articulate any acts by a defendant that prevented the plaintiff
from timely commencing suit. See id. at *6.

Plaintiff does not allege any particularized acts by Decedent that prevented her from
exercising her rights. Nor has Plaintiff alleged that (i) Decedent made a misrepresentation to her
and had reason to believe she would rely on it, or (ii) Plaintiff reasonably relied on it to her
detriment. Nor does Plaintiff allege any facts showing she acted with “reasonable diligence” in
pursuing her claims during the period she seeks to toll. Therefore, there is no “extraordinary” basis
alleged sufficient to toll the statute of limitations or estop the Co-Executors from asserting a statute
of limitations defense.

Plaintiff erroneously asserts in her pre-motion letter that her allegations in paragraphs 27,
40 and 43 of her Complaint constitute “extraordinary circumstances” sufficient to invoke these
doctrines. (ECF No. 13, § II.) However, Paragraph 27 does not even relate to Plaintiff. Rather, it
concerns general allegations of misconduct by Decedent related to other, unidentified alleged
victims. There is nothing alleged about why such misconduct prevented Plaintiff from filing this
action a long time ago.

Plaintiff’s reliance on paragraphs 40 and 43 is also misplaced. The allegations in those
paragraphs are that, during the period of the alleged assaults of Plaintiff, Decedent threatened her
and on a single occasion forced her to meet with an attorney who asked her “personal questions.”
However, Plaintiff does not allege that Decedent did anything after the alleged assaults ended to
prevent her from commencing this lawsuit.

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There are numerous court decisions in which stronger, clearer allegations are deemed
insufficient to justify equitable estoppel or tolling. See, e.g., Conklin v. Maidenbaum, No. 12-cv-
3606, 2013 U.S. Dist. LEXIS 113975, at *27 (S.D.N.Y. Aug. 13, 2013) (Ramos, J.) (finding
equitable tolling inapplicable and dismissing complaint notwithstanding that plaintiffs alleged they
reasonably relied on defendants’ representations over a period spanning more than ten months and
dozens of telephone calls).

Plaintiff alternatively argues in her pre-motion letter that her entitlement to equitable
estoppel and tolling are fact issues not subject to rulings by the Court on a motion to dismiss. (ECF
No. 25, § II.) Plaintiff misses the point. Where, as here, a plaintiff fails to allege facts that support
invocation of an exception to the statute of limitations, there is no issue of fact sufficient to defeat
a motion to dismiss on statute of limitations grounds:

If properly pled, allegations of equitable estoppel normally create questions
of fact which cannot be determined at a motion to dismiss…. However,
without adequate pleading, the issue is not properly raised and therefore
cannot defeat a motion to dismiss based on statute of limitations grounds.
See Dep’t of Econ. Dev. v. Arthur Andersen & Co., 747 F. Supp. 922, 943
(S.D.N.Y. 1990) (dismissing cause of action because plaintiff made no
allegation in complaint that “its failure to timely institute its third-party
action was due to its justified reliance upon a misrepresentation” by
opposing party); Moll v. U.S. Life Title Ins. Co. of N.Y., 700 F. Supp. 1284,
1293 (S.D.N.Y. 1988) (“Plaintiffs have not alleged that defendant caused
them to delay in bringing suit on a known cause of action. On the contrary,
plaintiffs repeatedly emphasize that they did not discover the alleged …
violations until long after the limitations period had expired. Equitable
estoppel is therefore not appropriate in this case.”).

Abercrombie v. College, 438 F. Supp. 2d 243 (S.D.N.Y. 2006) (emphasis added).

Here, as in Abercrombie, “Plaintiff has failed to allege any facts that would support
invocation of the equitable estoppel doctrine. First, Plaintiff does not identify the
misrepresentations or other facts demonstrating fraudulent concealment that could serve as the
basis for the claimed equitable estoppel. More particularly, Plaintiff has utterly failed to identify

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in the Complaint which statements led her to believe that she could delay bringing her lawsuit.”
Id. at 266. Nor does Plaintiff allege facts that would support invocation of equitable tolling.

D. Plaintiff’s Claim For Punitive Damages Must Be Dismissed Because They Are
Precluded By New York Law

Plaintiff’s claim for punitive damages fails as a matter of law because it is barred by statute
and well-established law. Courts in this District regularly grant motions to dismiss legally deficient
claims for punitive damages. See, e.g., The Cookware Co. (USA), LLC v. Austin, No. 15 Civ. 5796,
2016 U.S. Dist. LEXIS 177691, at *17 (S.D.N.Y. Dec. 8, 2016) (Batts, J.) (granting motion to
dismiss claim for punitive damages without leave to replead because allegations regarding
defendant’s bad-faith conduct were conclusory and did not rise to the required level of malice);
SJB v. N.Y.C. Dep’t of Educ., No. 03 Civ. 6653, 2004 U.S. Dist. LEXIS 13227, at *25-26 (S.D.N.Y.
July 14, 2004) (Buchwald, J.) (granting motion to dismiss punitive damages claims because
punitive damages were not statutorily available); Kunica v. St. Jean Fin., No. 97 Civ. 3804, 1998
U.S. Dist. LEXIS 11867, at *26 (S.D.N.Y. July 29, 1998) (Sweet, J.) (granting motion to dismiss
claim for punitive damages because, even if conduct alleged in complaint was true, it did not rise
to the level necessary to award punitive damages); Purdy v. Consumers Distrib. Co., 648 F. Supp.
980, 981, 984 (S.D.N.Y. 1986) (Cedarbaum, J.) (granting motion to dismiss claim for punitive
damages).

When determining what law applies, the court looks to the choice of law rules of the forum
state. Simons v. Marriott Corp., No. 92 Civ. 3762 (SWK), 1993 U.S. Dist. LEXIS 14365, at *15
(S.D.N.Y. Oct. 12, 1993). Under New York law, the law of the state where a tort occurs generally
applies to punitive damages. See Starr Indem. & Liab. Co. v. Am. Claims Mgmt., No. 14-cv-0463-
JMF, 2015 U.S. Dist. LEXIS 60272, *7 (S.D.N.Y. May 7, 2015) (“Because punitive damages are
conduct-regulating, ‘the law of the jurisdiction where the tort occurred will generally apply.’”)

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(quoting Deutsch v. Novartis Pharms. Corp., 723 F. Supp. 2d 521, 524 (E.D.N.Y. 2010); Guidi v.
Inter-Continental Hotels Corp., No. 95-CV-9006 (LAP), 2003 U.S. Dist. LEXIS 6390, at *1
(S.D.N.Y. Apr. 16, 2003)).

Here, Plaintiff has alleged tortious conduct occurring in New York and Florida. (Compl.
¶¶ 40, 42.) New York Estates, Powers and Trusts Law provides: “No cause of action for injury to
person or property is lost because of the death of the person liable for the injury. For any injury,
an action may be brought or continued against the personal representative of the decedent, but
punitive damages shall not be awarded nor penalties adjudged in any such action brought to
recover damages for personal injury.” NY EPTL § 11-3.2 (a)(1) (emphasis added). “Also, ‘there
is a strong policy against the assessment of punitive damages against an estate on account of
wrongful conduct of the decedent.’” Graham v. Henderson, 224 F.R.D. 59, 63 (N.D.N.Y. 2004)
(quoting Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996)).

New York General Construction Law § 37-a defines “personal injury” as including “an
assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff,
or of another.” Here, Plaintiff seeks to recover damages for personal injuries, i.e., “battery” and
“intentional infliction of emotional distress,” which are actionable injuries to Plaintiff’s person.
Accordingly, Plaintiff may not recover against the Co-Executors for punitive damages based on
alleged torts that occurred in New York.

Nor are punitive damages available to Plaintiff under Florida law. Poindexter v.
Zacharzewski, No. 18-14155, 2018 U.S. Dist. LEXIS 189861, at *6 (Nov. 5, 2018 S.D. Fla.) (citing
Lohr v. Byrd, 522 So. 2d 845 (Fla. 1988)). “Florida law prohibits recovery of punitive damages
from the estate of a wrongdoer who is deceased.” Id. That is the law in most jurisdictions, as
reflected in the Restatement. See Restat. (Second) Of Torts § 908 cmt. a (punitive damages not

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available against representatives of deceased tortfeasor). Even if Plaintiff’s claims somehow
survive, her claims for punitive damages must therefore be dismissed.

In her pre-motion letter, Plaintiff does not dispute that this prohibition on punitive damages
in personal injury actions against a decedent tortfeasor’s estate is black-letter New York and
Florida law. Rather, Plaintiff asks the Court to simply delay ruling on the issue of punitive damages
until after discovery. (ECF No. 25, § II.) However, as there are no facts alleged that would render
Plaintiff’s punitive damages claim proper, there is no reason to allow it to stand.

Plaintiff seeks to delay the inevitable so she may use the prospect of punitive damages—
expressly prohibited as they may be—as (misplaced) leverage over the Co-Executors. This would
serve no legitimate purpose. It would also impede productive settlement discussions. Plaintiff’s
punitive damages claim, like the punitive damages claims in the cases cited above, should be
dismissed.

CONCLUSION

For the reasons stated above, Defendants respectfully request that the Court dismiss
Plaintiff’s Complaint, together with such other and further relief as the Court deems just and
proper.

Dated: New York, New York
February 28, 2020

By: /s/ Bennet J. Moskowitz
Bennet J. Moskowitz
TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022

Attorney for Defendants