BRIGID “BRIDIE” FARRELL v. THE UNITED STATES OLYMPIC & PARALYMPIC COMMITTEE, a Business Entity of Form Unknown; US SPEEDSKATING, a Business Entity of Form Unknown; THE UNITED STATES OLYMPIC EDUCATION CENTER, a Business Entity of Form Unknown; THE SARATOGA WINTER CLUB, a Business Entity of Form Unknown; and ANDREW (“ANDY“) GABEL, an individual
1:20-CV-1178 (FJS/CFH)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
Oct 15 - 2021
SCULLIN, Senior Judge
Case 1:20-cv-01178-FJS-CFH Document 56 Filed 10/15/21 Page 1 of 23
APPEARANCES
BARNES & THORNBURG LLP
1717 Pennsylvania Avenue NW
Suite 500
Washington, D.C. 20006
-and-
655 West Broadway
Suite 1300
San Diego, California 92101
-and-
43 West 43rd Street
Suite 175
New York, New York 10036
Attorneys for Plaintiff
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Suite 3500
Los Angeles, California 90067
Attorneys for Defendant United States Olympic & Paralympic Committee
CHARLES G. LA BELLA, ESQ.
JAMES F. MURDICA, ESQ.
MICHAEL A. BATTLE, ESQ.
MICHELLE BRADFORD, ESQ.
MITCHELL A. KAMIN, ESQ.
CAROLYN KUBOTA, ESQ.
MARK YUN CHEN, ESQ.
COFFEY LAW PLLC
17 Elk Street
Albany, New York 12207
Attorneys for Defendant US Speedskating
LAW OFFICES OF HOWARD L. JACOBS
31111 Agoura Road
Suite 225
Westlake Village, California 91361
Attorneys for Defendant US Speedskating
HINCKLEY, ALLEN & SNYDER LLP
30 South Pearl Street
Suite 901
Albany, New York 12207
Attorneys for Defendant United States Olympic Education Center
740 West Long Lake Road
Suite 150
Troy, Michigan 48098
Attorneys for Defendant United States Olympic Education Center
MANNING GROSS + MASSENBURG LLP
14 Wall Street
28th Floor
New York, New York 10005
Attorneys for Defendant Saratoga Winter Club
AIDALA, BERTUNA & KAMINS, P.C.
546 5th Avenue
6th Floor
New York, New York 10036
Attorneys for Defendant Andrew Gabel
DANIEL W. COFFEY, ESQ.
HOWARD L. JACOBS, ESQ.
MICHAEL L. KOENIG, ESQ.
CHRISTOPHER V. FENLON, ESQ.
MATTHEW P. ALLEN, ESQ.
AUSTIN D. O‘MALLEY, ESQ.
IMRAN H. ANSARI, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. BACKGROUND
Plaintiff, a former Olympic speedskater, commenced this action against Defendants for negligence, assault and battery, negligent infliction of emotional distress (“NIED“), and intentional infliction of emotional distress (“IIED“) pursuant to New York‘s Child Victims Act (“CVA“),
Plaintiff asserts that Defendant Gabel, then a 33-year-old internationally known speedskater and Olympian, began grooming her by devoting attention to her, offering her assistance, confiding in her, giving her gifts, endearing himself to her parents, and driving her to and from speedskating training and practice sessions at least three days per week. See id. at 36, 42-45, 51. Plaintiff alleges that Defendant Gabel eventually sexually abused her; and Plaintiff claims that those abusive acts were inappropriate, new, unknown, confusing, suffocating, and sometimes painful; and she dreaded when Defendant Gabel would transport her because “she never knew if he was taking her to skate or to his home to molest her.” See id. at 46, 49-50, 57. Plaintiff further contends that Defendant Gabel‘s control over her ultimately extended beyond sexual abuse to include emotional abuse. See id. at ¶¶ 53-59. As a result of this emotional abuse, Plaintiff claims that she developed severe depression and regular suicidal thoughts, fear, anxiety, feelings of guilt, and multiple eating disorders, including anorexia and bulimia. See id. at ¶ 55, 60.
According to Plaintiff, much of her sexual abuse occurred at various Olympic training centers, including at Defendant Saratoga Winter Club in Saratoga Springs, New York, and at Defendant United States Olympic Education Center (“USOEC“) in Marquette, Michigan, as well at Art Devlin‘s Olympic Motor Inn, located in Lake Placid, New York, and in Defendant Gabel‘s home and vehicle, and other secluded locations. See id. at ¶¶ 1, 6, 19, 46-47, 49, 57, 59. Plaintiff claims that, in addition to Defendants Saratoga Winter Club and USOEC, Defendant U.S. Speedskating (“USS“) and Defendant United States Olympic & Paralympic Committee (“USOPC“) were entrusted with her safety and wellbeing throughout that time; and, even though they knew or should have known that Defendant Gabel had previously sexually abused young female speedskaters, Plaintiff asserts that they failed to protect her and “turned a blind eye to [Defendant Gabel‘s] predatory behavior[.]” See id. at ¶¶ 1-3, 39, 52, 62, 65-78, 89.
In her complaint, Plaintiff alleges that Defendant Gabel had a patterned, systematic
Plaintiff asserts that, as early as 1989, Defendant USOPC learned that Defendant Gabel had coerced at least two young females into having sexual relations with him. See id. at ¶ 66.
Following Plaintiff‘s commencement of this action in New York State Supreme Court, see generally Dkt. No. 2, Defendant USOPC removed this action to federal court pursuant to
Pending before the Court are three motions to dismiss. See Dkt. Nos. 37, 42, 43. Specifically, Defendant USS moves to dismiss the complaint against it pursuant to
Thus, the Court must consider whether to dismiss the following claims:
- Plaintiff‘s first cause of action for negligence against Defendants USS and USOEC;
- Plaintiff‘s second cause of action for assault and battery against Defendant Gabel;2
- Plaintiff‘s third cause of action for NIED against Defendants USS, USOEC, and Gabel; and
- Plaintiff‘s fourth cause of action for IIED against Defendants USS, USOEC, and Gabel.
See generally Dkt. Nos. 37, 42, 43.
II. DISCUSSION
A. Defendant USS‘s motion to dismiss
1. Personal jurisdiction
Defendant USS initially argues that the Court does not have personal jurisdiction
a. General jurisdiction
“General personal jurisdiction exists if a defendant‘s contacts with a forum state are so extensive that the forum is empowered to hear any case regarding that defendant, even if the case is unrelated to those contacts.” Zimmerman v. Cornell Outdoor Educ., No. 3:20-CV-892 (DNH), 2021 U.S. Dist. LEXIS 3319, *5-*6 (N.D.N.Y. Jan. 8, 2021) (Hurd, J) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 1996)). Specifically, under
““[a] corporation that operates in many places can scarcely be deemed at home in all of them.‘‘” Zimmerman, 2021 U.S. Dist. LEXIS 3319, at *8-*9 (quoting Sonera [Holding B.V. v. Cukurova Holding A.S.], 750 F.3d [221,] 225 [(2d Cir. 2014)] (citing Daimler AG v. Bauman, 571 U.S. 117, 139 n.20, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014))). “Aside from ‘an exceptional case,’ a corporation is at home (and thus subject to general jurisdiction, consistent with due process) only in a state that is the company‘s formal place of incorporation or its principal place of business.” DeLorenzo v. Viceroy Hotel Grp., LLC, 757 F. App‘x 6, 8 (2d Cir., 2018) (summary order) (quoting Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 [(2014)]). When determining whether a corporation‘s contacts in the state constitute an “exceptional case” for general jurisdiction purposes, the Court “must assess the company‘s local activity not in isolation, but in the context of the company‘s overall activity: the general jurisdiction inquiry ‘does not focus solely on the magnitude of the defendant‘s in-state contacts,’ but ‘calls for an appraisal of a corporation‘s activities in their entirety, nationwide and worldwide.‘” Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d Cir. 2016) (quoting Daimler, 134 S. Ct. at 762 n.20 (alternations and internal quotation marks omitted)).
In this case, Plaintiff alleges that Defendant USS is a nonprofit organization with its national headquarters in Salt Lake City, Utah, and offices located in Kearns, Utah. See Dkt. No. 2 at ¶ 14. Ted Morris, the Executive Director for Defendant USS, confirmed this and further attested that Defendant USS is incorporated pursuant to the laws of the State of Missouri. See Dkt. No. 37-2, Morris Aff., at ¶ 3. Ordinarily, this would preclude the Court from exercising general jurisdiction over Defendant USS. Nonetheless, Plaintiff argues that this is an “exceptional case” in which the Court should exercise general jurisdiction over Defendant USS because it has “substantial” operations in New York and markets and solicits business here. See Dkt. No. 44 at 12-16.
In her complaint, Plaintiff alleges that Defendant USS is a nonprofit organization
Based on these assertions, it appears that Defendant USS is a national nonprofit organization with the goal of sponsoring top speedskating talent at the international Winter Olympic Games. Although Plaintiff supports her position with proof that Defendant USS maintained dues-paying members and membership clubs and sponsored numerous events in New York, see Dkt. No. 44-1, Exs. A-I, the Court is required to view Defendant USS‘s presence in New York in comparison to its significant national and global presence. Reviewing the facts alleged in the complaint and those that Mr. Morris affirmed, the Court finds that Defendant USS‘s local presence is not significant when compared with its overall activity such that it should fall within an exception to the rule that general jurisdiction applies to an organization‘s “home state.” Thus, for these reasons, the Court finds that it does not have general jurisdiction over Defendant USS.
b. Specific jurisdiction
Specific personal jurisdiction “depends on an affiliatio[n] between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum state and is therefore subject to the State‘s regulation.‘” Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 2851 (2011) (internal quotation marks omitted)). To establish specific personal jurisdiction under New York‘s long-arm statute, a plaintiff must demonstrate that the defendant, “in person or through an agent . . . (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state . . . ”
With respect to the Court‘s jurisdiction over Defendant USS pursuant to
In her complaint, Plaintiff alleges that Defendant USS had a duty to ensure that its training centers and member clubs adequately protected and supervised minors training and competing at the facility. See Dkt. No. 2 at ¶ 18. Despite this duty, Plaintiff asserts that Defendant Gabel sexually abused young girls at Defendant USS‘s training facilities. See id. Plaintiff additionally alleges that Defendant Gabel periodically acted in an official capacity for Defendant USS, including as an athlete and assistant in 1989, athlete representative for Defendant USS‘s Board of Directors in 1994, Vice President for Defendant USS in 1999, and as Defendant USS‘s President in 2002. See id. at ¶ 23. Plaintiff claims that Defendant USS compensated Defendant Gabel for his services. See id. at ¶ 25. Plaintiff further alleges that Defendant USS knew about prior allegations against Defendant Gabel, claiming that he groomed and entered into illegal sexual relationships with young speedskaters, but Defendant USS promoted him anyway. See id. at ¶¶ 39, 52, 65, 70-71. Plaintiff also claims that all of Defendant Gabel‘s victims trained with Defendant USS‘s member organizations. See id. at ¶ 64. Plaintiff alleges that Defendant Gabel sexually abused her in 1997, when they were preparing for the 1998 Olympic Trials in Saratoga Springs and when he was acting in an official capacity for Defendant USS. See id. at ¶¶ 23, 37-38.
To further support her position that Defendant Gabel was an agent for Defendant USS, Plaintiff points to the “Ice Chips” newsletter that Defendant USS issued on April 29, 1997. See Dkt. No. 44-1, Ex. J, at 65. In that newsletter, skaters were informed that they could reach out to their athlete representative for assistance; and it listed Defendant Gabel‘s name and two phone numbers to reach him. See id. Defendant USS‘s newsletter also listed Defendant Gabel as a 1998 Level 1 athlete in short track and member of the 1997-1998 national team, the 1997 world team, the 1997 traveling team, and as part of the Elite Training Group. See id. at 69-71. The newsletter also included several articles about Defendant Gabel‘s competition at the world short track speedskating championships. See id. at 71-73.
The Court finds that, at this time, these alleged facts are sufficient to show that Defendants USS and Gabel had an agency relationship such that Defendant Gabel‘s alleged tortious conduct in New York would bring Defendant USS within the Court‘s jurisdiction.3 Nonetheless, based on the intertwined connection between Defendant Gabel and Defendant USS, for which he was acting as an athlete and representative in 1997 when the alleged abuse took place, the Court concludes that New York‘s long-arm statute gives the Court specific personal jurisdiction over Defendant USS.
c. Due process
“After determining that personal jurisdiction is appropriate under the long-arm statute, the Court must also consider whether the exercise of that jurisdiction would comport with due
process.” Car-Freshner Corp., 2021 U.S. Dist. LEXIS 51975, at *18. “This analysis has two related components: the ‘minimum contacts’ inquiry and the ‘reasonableness’ inquiry.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010). “With respect to minimum contacts, [the court] must determine whether the defendant has sufficient contacts with the forum state to justify the court‘s exercise of personal jurisdiction.” Id. (citation omitted). “With respect to [the court‘s] analysis of reasonableness as part of the due process inquiry, [the court] ask[s] whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice‘—that is, whether it is reasonable to exercise personal jurisdiction under the circumstances of the particular case.” Id. (citation omitted). “In determining whether an exercise of personal jurisdiction is reasonable, the Court must consider the following factors: ‘(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff‘s interest in obtaining convenient and effective relief; (4) the interstate judicial system‘s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.‘” Car-Freshner Corp., 2021 U.S. Dist. LEXIS 51975, at *19-*20 (quoting Chloe, 616 F.3d at 164-65 (citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-14, 107 S. Ct. 1026, 94 L. Ed. 2d 92 [1987])).
As discussed in the context of general jurisdiction, Plaintiff has alleged in her complaint that Defendant USS received dues from member clubs and athletes in New York; and it sponsored numerous events annually in this state. See Dkt. No. 44-1, Exs. A-I. Although these contacts were not sufficient to prove that New York is Defendant USS‘s “home state” for general jurisdiction, the Court finds that these contacts are sufficient to justify the Court‘s exercise of specific personal jurisdiction over Defendant USS and comport with the Due Process Clause.
Regarding whether it is reasonable for the Court to exercise personal jurisdiction over it, Defendant USS has not argued that there will be any significant burden on it to defend this case in New York. Furthermore, the forum state has an interest in this case being adjudicated here, as the New York Legislature passed the CVA to provide an opportunity for child victims of sexual abuse to seek justice when they otherwise could not because their claims were time-barred. See Practice Commentary,
2. Failure to state a claim
Defendant USS argues that Plaintiff‘s NIED and negligence claims are
With respect to her negligence claim against Defendant USS, Plaintiff alleges in her complaint that it had a duty to take reasonable steps to protect her from foreseeable harm and to prevent Defendant Gabel from using his position as an “athlete representative” to target, groom, and sexually abuse young girls, including her. See Dkt. No. 2 at ¶¶ 91-93. Plaintiff contends that Defendant USS breached its duties by giving Defendant Gabel access to children, failing to train volunteers about how to remain alert to the signs of sexual predation, failing to protect children from sexual abuse, failing to warn her, her parents, or other parents of the danger of sexual abuse, and failing to create a safe and secure environment for her and other young girls.
See id. at ¶ 98. Plaintiff asserts that it was reasonably foreseeable that Defendant USS‘s breach of its duties would result in her sexual abuse while in Defendant USS‘s care; and, as a direct and proximate result of Defendant USS‘s acts and omissions, Defendant Gabel groomed and sexually abused her. See id. at ¶¶ 99-101.
Regarding her claim for NIED, Plaintiff alleges that Defendant USS engaged in reckless conduct by providing Defendant Gabel with access to young girls, including her, despite knowing that he would likely use his position to groom and sexually abuse them. See id. at ¶ 109. Plaintiff claims that Defendant USS had a duty to take reasonable steps to protect her from foreseeable harm and that Defendant USS‘s reckless conduct resulted in harm and that Defendant USS knew or had reason to know that its reckless conduct would inflict severe emotional and psychological distress on her and that she suffered such distress. See id. at ¶¶ 110-112.
Defendant USS also argues that Plaintiff did not plead her NIED and IIED claims with particularity so as to satisfy
B. Defendant USOEC‘s motion to dismiss
Defendant USOEC contends that it is not a legal entity that may be sued. To the contrary, Plaintiff argues that Defendant USOEC is an unincorporated association that is suable under New York‘s laws. See Dkt. No. 42-1, Def. USOEC‘s Memorandum in Support, at 12; Dkt. No. 46, Pl‘s Memorandum in Opposition to Def. USOEC‘s Mot., at 13-16.
According to New York law, “[a]ny partnership, or other company of persons, which has a president or treasurer, is deemed an [unincorporated] association” within the meaning of
Plaintiff has not alleged in her complaint the type of entity that she believes applies to Defendant USOEC. She merely alleges that Defendant “USOEC operated a training and education center facility located in Marquette, Michigan“; and, “[a]t all times relevant to [her] complaint, [Defendant] USOEC was under the control and supervision of, and upon information and belief, was funded through, [Defendant] USO[P]C and/or [Defendant] USS.” See Dkt. No. 2 at ¶ 11. Plaintiff describes Defendant USOEC as both a location—as a facility in Michigan—and as a program sponsored through Defendants USOPC and USS, but she does not identify it as a corporation or unincorporated association in her complaint, nor does she identify any of its employees or associates.
If the Court were to consider Defendant USOEC as an unincorporated association, based on the language in
C. Defendant Gabel‘s motion to dismiss
1. Constitutionality of the CVA
Defendant Gabel argues that the CVA is unconstitutional because it does not pass New York‘s “stringent” test for extending statutes of limitations and violates his due process rights. See Dkt. No. 43-1, Def. Gabel‘s Memorandum in Support, at 11-25. According to Defendant Gabel, extending a statute of limitations has traditionally been an “extraordinary remedy” granted when the plaintiff could not have brought an action in a timely manner. See id. at 12-13 (citing Zumpano v. Quinn, 6 N.Y.3d 666 (2006)).
Plaintiff responds that the CVA‘s revival provision is constitutional and does not deprive Defendant Gabel of his right to due process. See Dkt. No. 47, Pl‘s Memorandum in Opposition to Def. Gabel‘s Mot., at 11. First, Plaintiff argues that the CVA passes New York‘s “reasonableness test” because the revival provision constitutes a reasonable response to remedy an injustice. See id. at 12. Plaintiff also asserts that Defendant Gabel‘s memorandum of law conflates this standard with the inappropriate “exceptional circumstances” standard. See id. at 17-18. Finally, Plaintiff challenges Defendant Gabel‘s reliance on Zumpano, noting that it predates the CVA‘s passage. See id. at 16.
“[A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice.” Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400 (2017). Multiple New York courts and two federal district courts in the Second Circuit have held that the CVA does not run afoul of due process because it remedies an injustice. See, e.g., PC-41 Doe v. Poly Prep Country Day Sch., No. 20-CV-03628 (DG) (SJB), 2021 U.S. Dist. LEXIS 181254, *7 (E.D.N.Y. Sept. 22, 2021) (collecting cases); Giuffre v. Dershowitz, No. 19 Civ. 3377 (LAP), 2020 U.S. Dist. LEXIS 78596, *5-*6 (S.D.N.Y. Apr. 8, 2020); PB-36 Doe v. Niagara Falls City Sch. Dist., No. E172556/2020, 2021 N.Y. Slip. Op. 21188, *6-*7 (N.Y. Sup. Ct., Niagara Cnty. July 19, 2021); ARK3 Doe v. Diocese of Rockville Ctr., No. 900010/2019, 2020 N.Y. Misc. LEXIS 1964, *15 (N.Y. Sup. Ct., Nassau Cnty. May 11, 2020); Torrey v. Portville Cent. Sch., No. 88476, 66 Misc. 3d 1225(A), 2020 N.Y. Slip. Op. 50244(U), *11 (Cattaraugus Cnty. Feb. 21, 2020).
In PC-41 Doe, a court in the Eastern District of New York concluded that “the CVA, which afforded victims of childhood sexual abuse a limited period of time within which to pursue their claims of sexual abuse through the judicial system, was a reasonable, non-arbitrary response to remedy an injustice and therefore satisfies the New York Due Process Clause.” PC-41 Doe, 2021 U.S. Dist. LEXIS 181254, at *7. That court relied on the same sponsor‘s memorandum from the bill jacket on which Plaintiff relies, indicating that New York was ““one of the worst states in the nation for survivors of child sexual abuse,” and, because of restrictive statutes of limitations, “‘thousands of survivors [were] unable to sue or press charges against their abusers, who remain[ed] hidden from law enforcement and pose[d] a persistent threat to public safety.‘” Id. at *17 (quoting N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B. 2440, Ch. 11, at 7 (Jan. 29, 2019)). The purpose of the CVA was to “‘finally allow justice for past and future survivors of child sexual abuse . . . and shift the significant and lasting costs of child sexual abuse to the responsible parties.‘” Id. at *18 (quoting [N.Y. State Assembly Mem. Supp. Legislation] at 8) (other citation omitted). Accordingly, the court found that “[t]he CVA was enacted to remedy an injustice identified by the Legislature that results from applying restrictive statutes of limitation to claims of childhood sexual abuse.” Id. at *19 (citing N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B. 2440, Ch. 11, at 7-8).
The court in PC-41 Doe rejected many of the same contentions that Defendant Gabel makes in support of his motion to dismiss. For example, the court specifically rejected the argument that a claim-revival statute only comports with the New York Due Process Clause if the covered plaintiffs had a total and practical inability to bring a timely claim. See id. at *14. The court further noted that the Court of Appeals had never set forth such a requirement, and it did not do so in the Matter of World Trade Ctr., as the defendant had argued. See id. at *14-*15. The court also rejected the defendant‘s assertion that the Zumpano court‘s conclusion that sexual abuse victims could have timely brought claims rendered the CVA unconstitutional, noting that the Zumpano decision predated the CVA, did not address the constitutionality of a revival statute, and it twice referenced the role the Legislature might play in the future in redressing childhood sexual abuse. See id. at *16-*17, *17 n.10.
Similarly, in Giuffre, the Southern District of New York found that “the CVA‘s claim-revival provision obviously reflects the New York State Legislature‘s desire to correct a perceived injustice, i.e., that the statute of limitations for certain claims expired before child victims of sexual abuse recovered from past traumas to a degree sufficient to assert their rights.” Giuffre, 2020 U.S. Dist. LEXIS 78596, at *6. That court also concluded that the CVA does not violate
Finally, courts have rejected due process arguments, like Defendant Gabel‘s, that defendants do not have information regarding prior reports of abuse, that witnesses may have died, and that memories may be impaired. See PB-36 Doe, 2021 N.Y. Slip. Op. 21188, at *5. Courts have criticized such arguments for being speculative and unsupported by personal knowledge. See id. Accordingly, relying on the same reasons as those on which New York courts and the courts in PC-41 Doe and Giuffre relied, the Court finds that the CVA is a constitutional revival statute designed to remedy an injustice; and, consequently, it does not violate either the New York or federal Due Process Clauses.
2. Failure to state a claim
Lastly, Defendant Gabel contends that the Court should dismiss Plaintiff‘s causes of action for NIED and IIED because she fails to state a claim. See Dkt. No. 43-1 at 25-27. As stated above, the elements to plead an NIED claim are a breach of duty, emotional harm, a causal connection between the breach and harm, and circumstances providing some guarantee of genuineness of the harm. See Francis, 992 F.3d at 81. “New York requires four elements to sustain a claim of [IIED]: (1) ‘extreme and outrageous conduct‘; (2) ‘intent to cause, or disregard of a substantial probability of causing, severe emotional distress‘; (3) ‘a causal connection between the [outrageous] conduct and injury‘; and (4) ‘severe emotional distress.‘” Peck v. Cnty. of Onondaga, No. 5:21-CV-651, 2021 U.S. Dist. LEXIS 157561, *46-*47 (N.D.N.Y. Aug. 19, 2021) (Hurd, J.) (quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 612 N.E. 2d 699, 702, 596 N.Y.S.2d 350 (N.Y. 1993)).
In her complaint, Plaintiff generally alleges that Defendant Gabel, an internationally known and ranked speedskater and Olympian, targeted her “to be a victim for his sexual depravities.” See Dkt. No. 2 at ¶¶ 36, 38, 41-51. She asserts that Defendant Gabel was her “teammate and mentor” and was entrusted with her safety and wellbeing. See id. at ¶¶ 1, 41, 45. Plaintiff alleges that Defendant Gabel exploited that position to threaten, influence, and sexually abuse young girls, including her, and that his abuse was confusing, suffocating, painful, and led to her development of multiple eating disorders, severe depression, anxiety, and suicidal thoughts. See id. at ¶¶ 25, 49, 55, 59-60. After incorporating the above by reference in her NIED cause of action, Plaintiff further alleges that Defendants, including Defendant Gabel, acted recklessly, which resulted in Defendant Gabel‘s using his position and influence to gain access to and sexually abuse her. See id. at ¶¶ 108, 111. She also specifies that she has “in fact suffered and continues to suffer from severe emotional and psychological distress and personal physical injury, including mental anguish, humiliation, and emotional and physical distress,” as a result of Defendants’ reckless conduct. See id. at ¶ 112. Based on the foregoing, the Court finds that Plaintiff has sufficiently alleged her claim of NIED against Defendant Gabel; and, therefore, the Court denies his motion to dismiss that claim.
Additionally, in her cause of action for IIED, Plaintiff has repeated and realleged her allegations against Defendant Gabel; and she indicates that he used his position to groom and sexually abuse young girls and that his conduct was so “shocking and outrageous that it exceeds
III. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant USS‘s motion to dismiss the complaint against it, see Dkt. No. 37, is DENIED; and the Court further
ORDERS that Defendant USOEC‘s motion to dismiss the complaint against it, see Dkt. No. 42, is GRANTED; and the Court further
ORDERS that Defendant Gabel‘s motion to dismiss the complaint against him, see Dkt. No. 43, is DENIED; and the Court further
ORDERS that this matter is referred to Magistrate Judge Hummel for all further pretrial matters.
IT IS SO ORDERED.
Dated: October 15, 2021
Syracuse, New York
Frederick J. Scullin, Jr.
Senior United States District Judge