038.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VE,
Plaintiff,
v.
DARREN K. INDYKE AND RICHARD D.
KAHN, AS JOINT PERSONAL
REPRESENTATIVES OF THE ESTATE OF
JEFFREY E. EPSTEIN, NINE EAST 71st
STREET, CORPORATION, FINANCIAL
TRUST COMPANY, INC., NES, LLC,
Defendants.
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Index No. 1:19-cv-07625-AJN
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DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022
Tel: 212-704-6000
Fax: 212-704-6288
Attorneys for Defendants

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PRELIMINARY STATEMENT .................................................................................................... 1
I. ALLEGED FACTS ................................................................................................ 2
II. ARGUMENT ......................................................................................................... 3
a. Legal Standard: Plaintiff’s legal conclusions and contradictory
allegations are not accepted as true. ........................................................... 3
b. Plaintiff’s first battery claim (Count I) is time barred and must be
dismissed. ................................................................................................... 4
c. Plaintiff’s first battery claim must be dismissed because it is
duplicative of Plaintiff’s second battery claim. ......................................... 4
d. Plaintiff’s negligence claims against the Corporate Defendants
must be dismissed because they are based on conclusory
statements and impermissible group pleading—not facts. ........................ 5
i. Plaintiff’s “negligent security” claim against Nine East
(Count III) must be dismissed because it is based on labels
and conclusions and is contradicted by Plaintiff’s own
allegations. ..................................................................................... 6
ii. Plaintiff’s negligence claim against FTC (Count IV) must
be dismissed because it is also based on labels and
conclusions and is otherwise contradicted by Plaintiff’s
own allegations. ............................................................................. 7
iii. Plaintiff’s negligence claim against NES (Count V) must be
dismissed because it is based on conclusory allegations
made largely “upon information and belief.” ................................ 9
e. Plaintiff's claims for punitive damages must be dismissed because
they are precluded by NY EPTL § 11-3.2. .............................................. 10
CONCLUSION ............................................................................................................................. 11

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TABLE OF AUTHORITIES
Page(s)
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...........................................................................................................3, 6, 8
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .......................................................................................................3, 5, 6, 8
Gilford v. NYS Office of Mental Health,
No. 17-CV-8033 (JPO), 2019 U.S. Dist. LEXIS 38450 (S.D.N.Y. Mar. 11,
2019) ..........................................................................................................................................8
Man Zhang v. City of N.Y.,
17-cv-5415, 2019 U.S. Dist. LEXIS 163485 (S.D.N.Y. Sep. 19, 2019) ..................................7
Ochre LLC v. Rockwell Architecture Planning & Design,
12-cv-2837, 2012 U.S. Dist. LEXIS 172208 (S.D.N.Y. Nov. 28, 2012)...................................5
Price v. L’Oreal USA, Inc.,
17-cv-0614, 2017 U.S. Dist. LEXIS 165931 (S.D.N.Y. Oct. 5, 2017) ......................................4
Sofia v. Esposito,
17-cv-1829, 2018 U.S. Dist. LEXIS 60947 (S.D.N.Y. Apr. 10, 2018) ...........................6, 7, 10
Swan Media Grp., Inc. v. Staub,
841 F. Supp. 2d 804 (S.D.N.Y. 2012)........................................................................................5
Whitley v. Bowden,
No. 17-cv-3564 (KMK), 2018 WL 2170313 (S.D.N.Y. May 9, 2018) .............................3, 7, 9
Other Authorities
85 NY Jur Premises Liability § 212 (2)...…………………………………………………………5
CPLR § 208......................................................................................................................................4
CPLR § 214-g ..................................................................................................................................4
CPLR § 215(3) .................................................................................................................................4
Fed. R. Civ. P. 12(b)(6)....................................................................................................................1
New York Child Victims Act ..........................................................................................................1

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TABLE OF AUTHORITIES
(continued)
Page
NY Estates, Powers And Trusts Law § 11-3.2 ..........................................................................2, 10
New York Penal Law Article 130 ............................................................................................3, 4, 9

Defendants Darren K. Indyke and Richard D. Kahn, Co-Executors of the Estate of Jeffrey
E. Epstein (the “Estate”), Nine East 71st Street, Corporation (“Nine East”), Financial Trust
Company, Inc. (“FTC”), and NES, LLC (“NES”, and together with Nine East and FTC, the
“Corporate Defendants”; and the Corporate Defendants together with the Estate, the
“Defendants”) respectfully submit this Memorandum of Law in Support of their Motion to
Dismiss Counts I and III - V of Plaintiff VE’s (“Plaintiff”) First Amended Complaint1
(the
“Amended Complaint”) (Doc. # 3) 2 in their entity and Count II to the extent it is time barred
with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
PRELIMINARY STATEMENT
Plaintiff’s allegations, which are assumed to be true solely for purposes of this Motion,
present a discernable though partially time-barred battery claim against Decedent Jeffrey E.
Epstein (“Decedent”) and vague, conclusory negligence claims against the three Corporate
Defendants. Plaintiff alleges Decedent sexually abused Plaintiff in 2001 when she was sixteen
years old. (Am. Compl. ¶ 46.) Plaintiff asserts five causes of action in her Complaint: two
duplicative battery claims against the Estate (Counts I and II) and a negligence claim against
each Corporate Defendant (Counts III – V, respectively). The Estate, while preserving all rights
and legal positions, does not hereby seek to dismiss both claims against it in their entirety.
However, Plaintiff’s first battery claim should be dismissed for two reasons. First, this
claim is outside the scope of the New York Child Victims Act (“CVA”) and thus completely
time barred. Second, this cause of action is duplicative of and subsumed by Plaintiff’s second
battery claim. The second battery cause of action is itself time barred to the extent it is based on
occurrences after Plaintiff turned 18.
1
Plaintiff amended her Complaint before completing service on Defendants.
2
A copy of Plaintiff’s Amended Complaint is attached as Exhibit A to the Declaration of Bennet J. Moskowitz
submitted herewith.

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The Court should also dismiss Plaintiff’s negligence claims against the Corporate
Defendants because they are based on threadbare recitals of the elements of negligence causes of
action and conclusory statements, as well as impermissible group pleading. Plaintiff effectively
concedes she did not have solid grounds to name the Corporate Defendants in this action,
alleging: “[s]hould discovery reveal that any of the currently named Defendants are not the
proper identity of the Companies identified as current Defendants, substitution of parties shall be
requested to ensure accuracy and correctness of pleading.” (Id. ¶ 15 (emphasis added).)
Plaintiff’s demands for punitive damages must also be dismissed. New York Estates,
Powers And Trusts Law expressly provides punitive damages shall not be awarded nor penalties
adjudged in any personal injury action brought to recover damages from an estate.
I. ALLEGED FACTS
Plaintiff alleges that in 2001 a minor identified only as “Plaintiff’s friend” – and not
anyone else, whether an employee of any Corporate Defendant or otherwise – “recruited”
Plaintiff, who was then 16 years old, to give a massage to Decedent at his personal residence.
(Am. Compl. ¶¶ 47-48.) Plaintiff alleges the massage became a “sexual encounter” following
which Decedent paid Plaintiff money. (Id. ¶¶ 59 – 62.) Plaintiff further alleges she returned to
Decedent’s residence “within days” where she experienced “another sexual assault” by
Decedent. (Id. ¶ 64.).
Based on these allegations related entirely to conduct allegedly committed by Decedent,
Plaintiff claims the Corporate Defendants are somehow liable to her. Plaintiff alleges without
any supporting factual allegations that the Corporate Defendants “owed a duty to Plaintiff to treat
her in a non-negligent manner and not to commit, or conspire to commit, or cause to be
committed intentional, criminal, fraudulent, or tortious acts against Plaintiff.” (Id. ¶ 17.)

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Aside from such conclusory recitals of elements of negligence causes of action, many
made “upon information and belief,” labels and group pleading that lumps the Corporate
Defendants together, Plaintiff does not allege any specific facts concerning Nine East and FTC
except the following innocuous background assertions: Nine East was a New York corporation
(id. ¶ 7) that owned or controlled Decedent’s personal residence where the alleged sexual
assaults took place (id. ¶¶ 7, 50); and FTC was a U.S. Virgin Islands Corporation conducting
business in New York (id. ¶ 8). Further, and also excluding mere labels and conclusions,
Plaintiff’s sole specific factual allegations against NES are that it was a New York limited
liability company whose employee escorted Plaintiff into Decedent’s residence (id. ¶52)—but
not any specific facts suggesting let alone unequivocally stating the unidentified employee
witnessed or even knew about the alleged sexual assaults.
II. ARGUMENT
a. Legal Standard: Plaintiff’s legal conclusions and contradictory allegations
are not accepted as true.
Although the 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. Ashcroft v. Iqbal, 556 U.S. 662, 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). Moreover, “‘[w]here [the] plaintiff’s own pleadings are internally inconsistent, a court is
neither obligated to reconcile nor accept the contradictory allegations in the pleadings as true in
deciding a motion to dismiss.’” Whitley v. Bowden, No. 17-cv-3564 (KMK), 2018 WL 2170313,
at *11 (S.D.N.Y. May 9, 2018) (quoting Carson Optical Inc. v. eBay Inc., 202 F. Supp. 3d 247,
255 (E.D.N.Y. 2016)).

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b. Plaintiff’s first battery claim (Count I) is time barred and must be dismissed.
Plaintiff’s first cause of action, which asserts a claim for battery separate and apart from
her claim for battery in violation of NY Penal Law § 130, expired over a decade ago. Under
New York law, actions for battery must be commenced within one year (CPLR § 215(3)); and
actions for personal injury must be commenced within three years (CPLR § 214(5)). However,
because Plaintiff alleges she was a minor at the time of the alleged battery, her time to file her
battery claim was tolled until she turned eighteen. CPLR § 208.
Plaintiff alleges the battery against her occurred in 2001 when she was sixteen years old.
(Compl. at ¶¶ 46-47, 51, 92.) Therefore, Plaintiff turned eighteen in 2003. Plaintiff’s battery
claim expired in 2004 (or, if considered a claim for personal injury, in 2006), long before she
filed this action in August 2019.
The CVA does not alter this result. The CVA created a one-year period in which civil
claims alleging damages “suffered as a result of conduct which would constitute a sexual offense
as defined in article one hundred thirty of the penal law committed against a child less than
eighteen years of age” could be filed despite otherwise having expired. CPLR § 214-g (emphasis
added). Thus, the CVA does not revive causes of action unless they are based on NY Penal Law
§130 offenses. Id. Plaintiff’s Count I for battery, which is distinct from Plaintiff’s claim for
battery in violation of NY Penal Law § 130, is untimely and must be dismissed.
c. Plaintiff’s first battery claim must be dismissed because it is duplicative of
Plaintiff’s second battery claim.
Even assuming Count I states a NY Penal Law § 130 offense, which it does not, it must
be dismissed as entirely duplicative of Count II. See Price v. L’Oreal USA, Inc., 17-cv-0614,
2017 U.S. Dist. LEXIS 165931, at *12 (S.D.N.Y. Oct. 5, 2017) (“Defendants’ motion to dismiss
the unjust enrichment claim under New York law (see Count V) is granted because it is

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duplicative of the other claims.”). Counts I and II are based on the same alleged occurrences and
seek the same relief. Therefore, it would serve no legitimate purpose to permit Plaintiff to
pursue both claims. Count I should be dismissed for this additional reason.
d. Plaintiff’s negligence claims against the Corporate Defendants must be
dismissed because they are based on conclusory statements and
impermissible group pleading—not facts.
Plaintiff failed to allege “enough facts” to state any negligence claim against the
Corporate Defendants “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007) (emphasis added). It is well-settled that Plaintiff must demonstrate grounds for relief
beyond mere “labels and conclusions.” Id. at 555. Rather, to state a claim, Plaintiff’s Complaint
must set forth “[f]actual allegations [that are] … enough to raise a right to relief above the
speculative level.” Id. “Though the Court must accept the factual allegations of a complaint as
true, it is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Swan
Media Grp., Inc. v. Staub, 841 F. Supp. 2d 804, 806 (S.D.N.Y. 2012) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
Additionally, “[w]here a complaint names multiple defendants, that complaint must
provide a plausible factual basis to distinguish the conduct of each of the defendants. … A
plaintiff cannot merely lump all the defendants together in each claim and provide no factual
basis to distinguish their conduct.” Ochre LLC v. Rockwell Architecture Planning & Design, 12-
cv-2837, 2012 U.S. Dist. LEXIS 172208, at *16-17 (S.D.N.Y. Nov. 28, 2012) (citing Atuahene
v. City of Hartford, 10 Fed. App’x 33, 34 (2d Cir. 2001)).
With respect to the allegations against the Corporate Defendants, and as explained more
fully below, Plaintiff has not made factual allegations sufficient to “raise the right to relief above
the speculative level.” See Twombly, 550 U.S. at 555. Besides generic conclusions that the

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Corporate Defendants “provided the opportunity” (Compl. ¶ 23), “collaborat[ed]” (id. ¶ 40),
gave “the necessary assistance” (id. ¶ 41) and the like, there are no alleged facts describing what
any of the Corporate Defendants’ employees or other agents did or failed to do that was
negligent or how such negligence proximately caused Plaintiff’s alleged damages. Further, most
of Plaintiff’s allegations about the Corporate Defendants impermissibly lump their conduct
together. (See, e.g., id. ¶¶ 23, 37-44, 62-63.) The Corporate Defendants cannot reasonably
prepare a response to such conclusory, vague claims, which are hereby further addressed in turn.
i. Plaintiff’s “negligent security” claim against Nine East (Count III)
must be dismissed because it is based on labels and conclusions and is
contradicted by Plaintiff’s own allegations.
Count III fails to state a claim because, aside from labels and conclusions, the Complaint
is devoid of any facts concerning Nine East except that it owned real property where torts against
Plaintiff allegedly took place—hardly enough to “raise the right to relief above the speculative
level.” See Twombly, 550 U.S. at 555. Though far from clear, Plaintiff’s legal theory against
Nine East appears to be that, because Nine East owned Decedent’s New York residence where
the alleged torts took place, Nine East is necessarily liable to Plaintiff for Decedent’s alleged
conduct. This is not the law in New York. See 85 NY Jur Premises Liability § 212 (2)
(“Generally, the law does not impose a duty to control the conduct of third persons to prevent
them from harming others even where, as a practical matter, the defendant could have exercised
such control.”).
Moreover, to sufficiently allege a “negligent security” cause of action, the Plaintiff must
allege facts establishing: (i) Nine East owed Plaintiff a duty; (ii) Nine East breached that duty;
and (iii) injury to Plaintiff substantially caused by that breach. Sofia v. Esposito, 17-cv-1829,
2018 U.S. Dist. LEXIS 60947, at *10 (S.D.N.Y. Apr. 10, 2018) (quoting Pasternack v. Lab.
Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir. 2015)). Other than conclusions reciting these

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elements, which are insufficient to state a claim, Iqbal, 556 U.S. at 678, Plaintiff does not allege
any facts establishing Nine East owed her a duty, how Nine East breached any duty or how any
such breach caused Plaintiff’s alleged damages.
There are no allegations connecting Plaintiff’s visits to Decedent’s personal residence
with any negligence on the part of any employees or other agents of Nine East. Plaintiff does not
even identify any such employees or agents.
To the contrary, Plaintiff alleges her “friend,” not someone acting on behalf of Nine East,
caused Plaintiff to visit the real property owned by Nine East. (Compl. ¶¶ 47, 51-61.) Plaintiff
further alleges that she returned to the real property “within days” (id. ¶¶ 64-72) without
claiming that was at a specific person’s behest.
Plaintiff also alleges the “opulence of the mansion … facilitated [Plaintiff’s] further
cooperation with Decedent.” (Id. ¶ 63.) Such allegations are inconsistent with any suggestion
that Nine East is liable to Plaintiff due to actions of Nine East’s agents. The Court is not
obligated to reconcile or accept Plaintiff’s contradictory allegations as true. Whitley, 2018 WL
2170313, at *11 (S.D.N.Y. May 9, 2018). Accordingly, Count III for negligent security against
Nine East must be dismissed for failure to state a claim.
ii. Plaintiff’s negligence claim against FTC (Count IV) must be dismissed
because it is also based on labels and conclusions and is otherwise
contradicted by Plaintiff’s own allegations.
Plaintiff’s negligence claim against FTC is similarly deficient. Plaintiff’s legal theory
concerning FTC appears to be that, because FTC employed Decedent when the alleged torts took
place, FTC is necessarily liable to Plaintiff—i.e., negligent supervision of an employee. Under

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New York law, in addition to the elements of negligence,3
a plaintiff alleging negligent
supervision must show: (1) the tortfeasor and the defendant were in an employee-employer
relationship; (2) the employer knew or should have known of the employee’s propensity for the
conduct which caused the injury prior to the injury’s occurrence; and (3) the tort was committed
on the employer’s premises or with the employer’s chattels. Man Zhang v. City of N.Y., 17-cv
5415, 2019 U.S. Dist. LEXIS 163485, at *14 (S.D.N.Y. Sep. 19, 2019) (citing Green v. City of
Mount Vernon, 96 F. Supp. 3d 263, 297 (S.D.N.Y. 2015); Ehrens v. Lutheran Church, 385 F.3d
232, 235 (2d Cir. 2004)).
As with Count III, Count IV is supported by nothing more than mere labels and
conclusions regarding FTC’s so called negligent conduct. For example, Plaintiff alleges the
sexual assaults occurred “during the course and scope of employment for [FTC]” (Compl. ¶ 111)
without asserting factual allegations as to how or why that was the case.
Plaintiff failed to allege any facts beyond labels and conclusions establishing FTC owed
Plaintiff any duty, breached that duty and that such breach injured her. Nor does Plaintiff allege
specific facts showing FTC knew or should have known Decedent’s propensity for the conduct
that allegedly caused Plaintiff’s injuries.
Plaintiff’s allegation against FTC made “upon information and belief” -- that “at times
other employees of the Defendant corporation were coordinating these sexually explicit
massages for Epstein to engage in during business hours, while he was within the course and
scope of his employment for Defendant” -- fails to rescue Plaintiff’s cause of action against FTC.
In addition to being conclusory and thus otherwise failing to satisfy the pleading standards set
forth in Twombly and Iqbal, Plaintiff’s allegation does not raise a right to relief above
3
As explained above, under New York law, a plaintiff must establish the following elements to state a claim for
negligence: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially
caused by that breach. Sofia, 2018 U.S. Dist. LEXIS 60947 at *10.

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speculation. See Gilford v. NYS Office of Mental Health, No. 17-CV-8033 (JPO), 2019 U.S. Dist.
LEXIS 38450, at *14 (S.D.N.Y. Mar. 11, 2019) (“No matter what the pleading standard is, her
complaint must at least contain enough factual allegations that are not made upon information
and belief to ‘raise a right to relief above the speculative level.’” (emphasis added) (citing
Twombly, 550 U.S. at 555)).
Plaintiff’s allegations are also inconsistent with her legal theory that FTC is somehow
liable for Decedent’s misconduct. Plaintiff alleges the torts occurred on Nine East’s premises,
not FTC’s premises. Further, Plaintiff alleges Decedent sexually abused Plaintiff “intentionally
and for no legitimate purpose and for his own gratification,” (id. ¶ 72)—not that Decedent
performed the sexual acts in the course or scope of his employment by FTC. As explained
above, the Court is neither obligated to reconcile nor accept such contradictory allegations as
true. Whitley, 2018 WL 2170313, at *11 (S.D.N.Y. May 9, 2018).
The most plausible reading of the Complaint is that FTC’s employment of Decedent had
nothing to do with his alleged sexual assaults of Plaintiff. Without factual allegations explaining
how FTC acted negligently or how that negligence proximately caused Decedent’s alleged
injuries, the Complaint does not plausibly state a claim against FTC. Therefore, Count IV must
be dismissed.
iii. Plaintiff’s negligence claim against NES (Count V) must be dismissed
because it is based on conclusory allegations made largely “upon
information and belief.”
Plaintiff’s claims against NES are especially deficient. Plaintiff’s allegations against
NES are comprised of vague assertions made “upon information and belief” (see, e.g., Compl. ¶
130 (“Upon information and belief, the employees of Defendant, NES, were compensated to
primarily, if not exclusively, procure or maintain each young female masseuse”; see also id. ¶¶
127 – 129, 131) and conclusory recitals of elements of an unspecified negligence cause of action

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(see, e.g., Compl. ¶ 139 (“Defendant’s negligence was a proximate cause of the sexual offenses
committed against Plaintiff in violation of Article 130 of the NY Penal Law.”); see also id. ¶¶
132 – 138, 140).
Aside from labels and conclusions, Plaintiff fails to allege facts establishing the elements
of a negligence claim against NES. Thus, Plaintiff does not allege facts establishing NES owed
her a duty or breached such a duty. Sofia, 2018 U.S. Dist. LEXIS 60947 at *10. Nor does
Plaintiff allege any facts explaining how anything an NES employee or agent did or failed to do
proximately caused Plaintiff’s alleged damages. Id.
The only non-background fact Plaintiff alleges as to NES is a single ambiguous
allegation that one of its employees “escorted” Plaintiff into Decedent’s residence before the first
sexual assault occurred. (Id. ¶52.) Plaintiff neither identifies the employee nor alleges the
employee saw or otherwise knew about the alleged sexual assault.
Plaintiff’s allegations are also incompatible with a cause of action against NES. Plaintiff
alleges two instances of sexual assault by Decedent. Plaintiff claims her “friend,” not an NES
employee, recruited Plaintiff to visit Decedent when the first assault allegedly occurred. (Id. ¶
47.) Plaintiff alleges the second assault took place “within days,” without alleging any
intervening factor such as conduct by an NES employee or otherwise. (Id. ¶ 64.) As the
Complaint does not plausibly allege NES acted negligently or how such negligence was the
proximate cause of Plaintiff’s alleged injuries sustained as a result of alleged sexual assault
committed by Decedent, Count V must also be dismissed for failure to state a claim.
e. Plaintiff’s claims for punitive damages must be dismissed because they are
precluded by NY EPTL § 11-3.2.
Plaintiff may not recover punitive damages in this action as a matter of law. New York
Estates, Powers And Trusts Law provides: “No cause of action for injury to person or property is

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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)).
CONCLUSION
Based on the foregoing, Defendants respectfully request that the Court grant their Motion
to Dismiss in its entirety together with such other and further relief as the Court deems just and
proper.

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Dated: New York, New York
November 29, 2019
Respectfully submitted,
TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022
By: /s/ Bennet J. Moskowitz
Bennet J. Moskowitz
Attorneys for Defendants