Naughright v. Weiss
2011 U.S. Dist. LEXIS 133742
S.D.N.Y.2011Background
- Naughright sues Weiss, Urban Zen, LLC, and Robbins in diverse federal court over alleged treatment by Robbins on Nov 8, 2009 that caused injuries.
- Complaint lists thirteen claims including assault, battery, negligent advice, negligent failure to warn, fraud, breach of fiduciary duty, malicious misrepresentation, contract beneficiaries, and emotional distress.
- Complaint alleges Weiss controlled Urban Zen and used the business to promote a mixed Western/Eastern healing concept; Robbins allegedly provided healing services not licensed in NY.
- Plaintiff alleges injuries from Robbins’ alleged head twisting and other harm, resulting in disability and medical care.
- Defendants moved to dismiss under Rule 12(b)(6); court grants dismissal of all claims with leave to replead within 20 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assault and battery are pled adequately | Naughright contends conduct caused imminent harmful/contact and consent was invalid due to fraud. | Defendants argue lack of voluntary apprehension and lack of actionable contact; consent negates assault/battery. | Assault and battery claims dismissed; pleaded consent and lack of foreseeable apprehension. |
| Whether informed-consent-based claims survive | Second cause of action asserts lack of informed consent under 2805-d. | No adequate pleading of a distinct informed-consent tort separate from battery; redundancy or failure to plead facts. | Second cause of action dismissed; not pled with sufficient facts to state informed-consent claim. |
| Whether negligent misrepresentation/advice claims are viable | Special relationship and duty to provide accurate health-care information alleged. | No duty arising from a special relationship; allegations insufficient and lack Rule 9(b) specificity. | Third cause dismissed; no duty or particularized misrepresentations alleged; Rule 9(b) not satisfied. |
| Whether failure-to-warn and fiduciary-duty claims survive | Defendants owed a duty to disclose Robbins’ qualifications; failure to warn caused harm. | No fiduciary or special relationship; disclosed information not legally required; failure to warn claim insufficient. | Fourth and Ninth causes dismissed for lack of duty; no fiduciary relationship or adequate notice alleged. |
| Whether remaining tort/conspiracy/contract/intentional infliction claims are viable | Conspiracy and breach-of-fiduciary-duty claims rely on alleged relationships and interrelated torts. | No viable underlying tort, no special relationship, and Rule 9(b) for fraud; third-party beneficiary theory not supported. | Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh, Twelfth and Thirteenth actions dismissed; leave to replead limited to allegations still viable. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must show plausible claim (Twombly/Iqbal standard))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (claims must be plausible, not merely possible)
- United Nat. Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105 (2d Cir. 1993) (assault requires apprehension of imminent harmful contact)
- Bunker v. Testa, 234 A.D.2d 1004 (4th Dep’t 1996) (lack of imminent apprehension defeats assault claim)
- Brown v. Shyne, 242 N.Y. 176 (N.Y. 1926) (unlicensed practice supports negligence, not per se private right)
- Meyers v. Epstein, 232 F. Supp. 2d 192 (S.D.N.Y. 2002) (negligent misrepresentation treated as malpractice if a duty exists)
- Durante Bros. & Sons, Inc. v. Flushing Nat. Bank, 755 F.2d 239 (2d Cir. 1985) (special relationship required to impose duty)
- Henneberry v. Sumitomo Corp. of Am., 532 F. Supp. 2d 523 (S.D.N.Y. 2007) (breach-of-fiduciary-duty requires plausible relationship with fraud)
- In re Crude Oil Commodity Litig., 2007 WL 1946553 (S.D.N.Y. 2007) (fraud claims against multiple defendants require particularity)