Case Information
*1
PAUL A. ENGELMAYER, District Judge:
This case involves a plaintiff’s attempt to enforce an agreement to keep silent about an extramarital affair in exchange for money. Plaintiff Jennifer Truman alleges that she and defendant Peter Brown engaged in a decades-long affair, during which Truman had a child, Samantha. Truman alleges that, years later, she told Samantha, now an adult, that Brown was her father, and that Truman and Brown then engaged in discussions about Brown reimbursing Truman for some of Samantha’s expenses. Truman alleges that the two reached an agreement, under which Brown would give Truman money, and Truman would cease contact with Brown’s family and not disclose her claim that Brown was Samantha’s father. After Brown failed to pay the full amount demanded by Truman, Truman brought this action, in which she sues Brown for breach of contract, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Brown now moves to dismiss. For the reasons that follow, the Court dismisses Truman’s complaint, with prejudice.
I. Background
A. Factual Background [1]
1. Truman and Brown’s Relationship In 1985, Truman, then age 21, got a summer job working on Brown’s yacht in Fort Lauderdale, Florida. See Compl. ¶¶ 12, 16. Truman owned a yacht-refinishing company and had, through that work, gained boating expertise. Id. ¶ 15. Brown was a prominent businessman who headed a sportswear-manufacturing company and was wealthy, as evidenced by his private jet, cars, and boats. Id. ¶¶ 13–14. After Brown, who was in his late 30s, stopped by the yacht and met Truman, he offered her a job as a full-time member of the yacht’s crew. Id. ¶¶ 12, 17– 18.
Shortly thereafter, Truman and Brown began to build a close relationship, in which Truman confided in Brown about her childhood, including her family’s limited resources, the abuse she suffered from her alcoholic mother, and her lack of a father figure. See id. ¶¶ 19–20. Truman also told Brown that she suffered from low self-esteem and that she was vulnerable to strong male influences. Id. ¶¶ 20–21. At some point, Brown attempted to turn the relationship *3 into a sexual one. Id. ¶ 22. Truman resisted at first, but later gave in, beginning a sexual relationship that would last for decades. Id. She believed Brown cared for her and that the relationship would allow her to keep her job. Id. ¶ 23. Truman and Brown engaged in sexual acts on the yacht, in hotels, and in Brown’s car, sometimes when Brown’s wife and family were nearby. Id. ¶ 24.
During Truman and Brown’s relationship, Truman dreamt of working in the fashion industry. Id. ¶ 27. She turned down marriage proposals from another man, Jeff, to preserve her opportunity to move to New York City to pursue that dream. Id. ¶ 26. Brown said that he would help Truman, and gave her a job at Heather Hill Sportswear, a men’s and boys’ sportswear company his family owned. Id. ¶¶ 13, 27–28. She prepared to move to New York and enrolled in the Fashion Institute of Technology (“FIT”). Id. ¶ 29.
In late summer 1986, before Truman moved, she became ill. Id. ¶ 30. She decided to move to New York anyway. See id. ¶ 32. Later, Truman discovered that she was pregnant. See id. ¶¶ 31, 33–34. She was scared; she quit her job at Heather Hill, withdrew from FIT, agreed to marry Jeff, and moved back to Florida. See id. ¶¶ 35–37. Brown knew about the pregnancy and that he was the likely father. See id. ¶ 38.
In 1987, Truman gave birth to Samantha. Id. ¶ 39. In 1989, Truman and Jeff divorced, and Jeff moved to California. Id. ¶ 40. Jeff did not provide assistance to Truman and Samantha, although, after he died years later, Truman received some of his Social Security income.
Id. ¶¶ 40–41. Truman did not tell Samantha that Brown was her likely father. See id. ¶ 64.
After Jeff died, Brown asked Truman to come back and work on his yacht; Truman accepted. Id. ¶ 42. Brown persuaded Truman to resume their sexual relationship; he would *4 often comment that he should help with Samantha, although he never did. Id. ¶¶ 43, 45. Truman worked on the yacht every summer, and was often around Brown and his family. Id. ¶ 44.
After Brown’s son died, Brown and Truman spent much time together on the yacht, because Brown’s son had loved the water. Id. ¶¶ 47–48. Brown’s wife thanked Truman for taking Brown on boat rides, which she did not enjoy. Id. ¶ 48. Explaining the amount of time Truman and Brown were together, Brown told others that he “cared for [Truman] as a daughter” and that she was “part of his family.” Id. Brown insisted that Truman help him maintain the lie that she was “like a daughter” to him. Id. ¶ 51. Truman felt that she was a member of Brown’s family and was confused by the relationship. Id. ¶ 52. Brown led Truman to believe that if she needed anything, he would be there for her. Id. ¶ 50.
In 1992, Truman’s grandmother died, and a part of her will required that Truman go back to school. Id. ¶ 54. Truman moved back to New York City and planned to attend FIT. See id. She also worked for Brown at Heather Hill, where she stayed until 1999. Id. ¶¶ 54–55.
In 2000, Truman worked on Brown’s yacht in East Hampton and later found work with a shipping magazine. Id. ¶¶ 55–56. During this time, Brown and Truman continued their sexual relationship. See id. Brown told Truman that he “should be helping her” and that “one day [her] student loans [would] be gone.” Id. ¶ 57.
In 2001, Truman applied to law school and was accepted for the class entering in fall 2002. Id. ¶ 58. Brown remained in contact with Truman, but despite his promises to help her, never did. See id. ¶¶ 58–59. Truman raised Samantha on her own, covering her expenses as a child, including while Truman was in college and law school. See id. ¶¶ 60–61. Truman missed out on various opportunities while raising Samantha as a single mother. See id. ¶ 61.
Truman and Brown’s sexual relationship continued until sometime before Truman’s birthday in 2016. See id. ¶ 90. During those years, Truman alleges, Brown took advantage of her weaknesses and insecurities to make her “his sexual possession” and “his sexual ‘play thing.’” Id. ¶ 88. Brown alienated Truman from her own support system. Id. ¶ 89.
The day after Truman’s birthday in 2016, after Truman had begun to see man named Ivan, Brown called Truman, joking that she needed to return some of his old jackets. Id. ¶ 90. This prompted Ivan to ask questions about Truman’s relationship with Brown, including whether Brown was Samantha’s father. Id. ; see also Sept. 21, 2018 Ltr. at 1. In response, Truman lied to him. Sept. 21, 2018 Ltr. at 1.
At some point, Truman needed a loan and sought help from Brown. See Compl. ¶ 91. Brown put her into contact with a banker friend, but the banker refused to provide her a loan. Id. Truman returned to Brown for help. Brown responded, “if you cannot get the money anywhere else, you will have to pay me back with your body.” Id. Truman declined. Id.
2. Truman and Brown’s Agreement On June 1, 2018, Samantha took a 23andMe DNA test. Id. ¶ 63. The results indicated she was related to a relative of Brown’s. Id. On September 1, 2018, after Samantha had asked questions, Truman admitted to Samantha that Brown was likely her father. Id. ¶ 64.
On September 17, 2018, Truman sent Brown a letter, informing him that Samantha knew of his likely paternity. Id. ¶ 65; see Sept. 17, 2018 Ltr. Truman wrote: “Now that the truth is out—don’t you think it is your turn to step and return the favor to me for all the pleasure/escape I gave you in life.” Sept. 17, 2018 Ltr. at 1. She added: “You thought you could just use me as a sex toy, no one would find out and there would never be consequences.” Id. She cited Brown’s earlier statements that he would help pay for Truman’s student loans and leave her something in *6 his will. Id. She asked Brown to “make it right with both Samantha and myself, now, not when you die.” Id.
The next day, Brown texted Truman, stating that he was not doing well, but was “eager to help where and how I can.” Compl. ¶ 66; Text Chain at 2. After Brown asked what the balance of Truman’s student loans was, Truman responded: “If you want to put a price on it, think about how much it cost you to raise and educate [your daughter] Melissa, because Samantha is your daughter just like Melissa.” Text Chain at 2–4. Brown responded that he would “deal with the tuition and therapies.” Id. at 4.
The sum Truman sought was far less than Brown had paid toward his other children, for whom he had paid for private schools, nice clothes, vacations, and higher education.
Compl. ¶¶ 67–68. Truman contrasts her motherhood with that of Brown’s wife, who had “an easy time being a ‘mother,’” with nannies and maids to help her. Id. ¶ 68. Truman was “enraged” that Brown had not provided similar support to her and Samantha. Id. ¶ 71. As result, she wrote Brown a second letter, dated September 21, 2018; Truman texted Brown a picture of that letter on September 20, 2018. Id. ¶ 72; see Sept. 21, 2018 Ltr.; Text Chain at 5. The letter complained that Truman’s lies about her relationship with Brown had ruined her relationships with Ivan, the man she had been seeing, and with Samantha. See Sept. 21, 2018 Ltr. at 1.
Truman wrote that both she and Samantha needed therapy as a result. See id. She then stated, “[y]ou have millions, I wonder how much I am worth being a sex slave in the end . . . what is [your wife] Nancy worth, I am at least worth half.” Id. Truman’s letter concluded: “This is the last communication, I need to be free from this . . . I don’t know what to say you should do, just find the right number for me. Please help Samantha. It is done now.” Id.
After Truman sent the two letters to Brown, they had two phone conversations. Compl. ¶ 73; see also Text Chain at 6. They discussed what Truman had spent on Samantha over the years and how much Brown should contribute. See Compl. ¶ 73. Truman stated, “we had a long, long relationship. But I gave you lots of pleasure, seriously. And you always used to tell me you were gonna help me, and I believed you. But every time, you never did anything.” Call Trs. at 6. Brown agreed that this was his fault, and Truman responded: “Yes, yes. So now you need to make up for it.” Id. She added: “I really think that in your mind, if you know that you did wrong to me that you need to make it up to me. And I know you can come up with the right number.” Id. When Brown asked what the “right number” was, Truman said, “a lot . . . how much is Nancy worth? I’m worth at least half of that. How much is your daughter worth?” Id. at 6–7.
In these phone conversations, Brown agreed to pay Truman $500,000 by October 4, 2018, on the condition that she not tell his family he was Samantha’s father. See Compl. ¶¶ 74– 75. The call transcripts reveal that Brown said that Truman “[wouldn’t] see” the money for “at least a week and a half.” Call Trs. at 3 (JENNIFER: “So I’ll be expecting, like you know, you should be coming with a nice amount for me. And I know you will. And uh, I’ll expect to see something. . . .” PETER: “You won’t see it for at least a week and a half . . . I will send you something.”); see also Text Chain at 7 (Truman: “A week and a half like you said. I want to start the therapy soon. No more talking.”). Brown said that he would send “at least a hundred grand.” Call Trs. at 8. When Truman then suggested “five” as “a good number,” Brown said, “[y]eah . . . it won’t happen right away, though . . . [i]t will take a while.” Id. When pressed by Truman, he said, “you’ll get this first one, I promise you that.” Id. at 9. After the call, Truman said, “at least he’s gonna start with a hundred thousand.” Id.
3. Brown Does Not Pay $500,000 On the morning of October 4, 2018, Truman sent Brown an email, which stated: “Good morning. It’s the 4th. Like you told me on the phone, time for action . . . Please just try to do it all at once, the 470 like you said.” Email Chain at 3–4. It appears that Brown then left Truman a voicemail, stating, “Uh, you threw us that number. I have no idea how I’m gonna raise it. But, I think we gotta discuss this a little bit, and how soon I can get more for you . . . And that we won’t be con, contacting either of our, either of us, or you my family at all.” Call Trs. at 11. In response, Truman emailed Brown saying, “Got your message . . . I didn’t just make up this number, we discussed it the other night when you said you would have 100 by the 4th, today. Then we agreed on a final number of 500 during that conversation.” Email Chain at 3; see also Compl. ¶ 76. Truman added: “I just want it to all be over and never communicate with you or your family ever again . . . I don’t want to talk to you anymore.” Email Chain at 3. Brown then emailed back, asking “[w]hat guarantees” he had that no one, including his family, would “ever be contacted about this again.” Id. Brown then sent a second email, stating that he needed “to be assured that this will be the end of any and all contact,” to which Truman responded, “[i]t will be.” Id. at 2; see also Compl. ¶ 77. Brown never countered with a lower number. Compl. ¶ 77.
On the afternoon of October 4, 2018, Brown texted Truman, saying that he was “[a]waiting inward cable info for [c]hk today.” Text Chain at 10. The next day, Brown texted that the money had “cleared.” Id. ; see also Compl. ¶ 77.
When Truman received the check, it was for $100,000, not “the agreed upon amount” of $500,000. Compl. ¶ 78; Demand Ltr. at 4. As a result, Truman hired an attorney, who sent a demand letter to Brown. Compl. ¶ 79; see Demand Ltr. The demand letter stated that Truman and Brown had entered “a binding and legal contract,” under which Truman “promised not to contact [Brown] or [his] family or divulge the true nature of [their] relationship and the paternity *9 of her daughter in exchange for [Brown’s] promise to pay her $500,000. [He] accepted that offer by agreeing to pay; therefore a contract was formed.” Demand Ltr. at 3. The letter also stated that Brown would “reimburse her for the expenses of raising Samantha and the counseling she needs.” Id. The letter instructed Brown to contact Truman’s counsel by December 30, 2018 about paying the remaining $400,000, or Truman would take legal action. Id. at 4. Brown’s counsel responded with a letter denying that Brown owed anything, because, he asserted, either there was no contract or the contract was unenforceable. Demand Reply at 1. In that letter, Brown’s counsel accused Truman of extortion. See id. at 2–3; Compl. ¶ 80. Brown’s counsel further stated that Brown was “looking forward to establishing a more involved relationship with Samantha.” Demand Reply at 3.
Truman’s Complaint alleges that Brown’s conduct caused damage to Truman. See Compl. ¶¶ 80–84. This damage includes Truman’s loss of her relationships with Ivan and Samantha; the years Truman lost while “raising the Defendant’s daughter . . . which can never be recovered”; and the respect of those around her. Id. ¶¶ 81–83. The Complaint states that Truman is “now completely alone.” Id. ¶ 84.
The Complaint further alleges that Brown’s counsel’s letter caused Truman more anxiety and distress, including by accusing her of extortion and stating that Brown now wanted to be involved in Samantha’s life. See id. ¶¶ 80, 93–94. After Brown failed to pay the $500,000, Truman increased the amount of counseling she received. Id. ¶ 95. Truman’s anxiety and emotional distress worsened in the months after receiving this letter, affecting her relationships and leading her to use Talkspace, a service that allows her to text professional therapists at any time and costs $500. Id. ¶¶ 96–97. Truman has also lost more than 25 pounds, which her physician has concluded is “100% stress related.” Id. ¶ 98.
B. Procedural History
On February 19, 2019, Truman filed her Complaint, Compl., accompanied by several exhibits, see Dkts. 1-4–1-10. On April 2, 2019, Brown filed a motion to dismiss, Dkt. 10, which included a supporting memorandum of law, Dkt. 10-1 (“Def. Mem.”), a declaration from Jonathan D. Warner, Esq., Dkt. 10-2, and an exhibit containing a copy of the now-sealed Complaint, Dkt. 10-3. On April 3, 2019, the Court issued an order directing Truman to either amend her complaint or oppose the motion to dismiss. Dkt. 11. On April 15, 2019, Truman filed an opposition to Brown’s motion. Dkt. 15 (“Pl. Mem.”). On May 15, 2019, Brown filed his reply. Dkt. 16 (“Def. Reply”).
On May 17, 2019, Truman filed a motion requesting permission to file a sur-reply. Dkt. 17. On May 20, 2019, the Court called for a response from Brown. Dkt. 18. On May 22, 2019, Brown filed that response, opposing Truman’s request. Dkts. 19. The next day, the Court denied Truman’s request. Dkt. 20. [2]
*11 II. Applicable Legal Principles
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly
, 550
U.S. 544, 570 (2007). A claim will only have “facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Ashcroft v. Iqbal
,
For the purpose of resolving a motion to dismiss, the Court must assume all well-pled
facts to be true, drawing all reasonable inferences in favor of the plaintiff.
See Koch
, 699 F.3d
at 145. That tenet, however, “is inapplicable to legal conclusions.”
Iqbal
,
III. Discussion
Brown moves to dismiss each of Truman’s three claims: for (1) breach of contract, (2) intentional infliction of emotional distress, and (3) negligent infliction of emotional distress. The Court addresses each in turn.
A. Breach of Contract
Brown moves to dismiss the breach of contract claim for three main reasons: because (1) it is an oral agreement barred by the Statute of Frauds, see Def. Mem. at 14–16; Def. Reply at 1– 4; (2) it is the product of extortion and hence is void and unenforceable, see Def. Mem. at 9–13; Def. Reply at 4–7; and (3) to the extent Truman seeks to recover for a past sexual relationship, the agreement lacks consideration and is contrary to public policy, see Def. Mem. at 13–14. The *12 Court addresses the first two arguments, finding that the first warrants dismissal and that the second, although presently a close question, does not. [3]
1. Statute of Frauds
The Statute of Frauds requires that if an agreement “[b]y its terms is not to be performed
within one year from the making thereof” or if its performance “is not to be completed before the
end of a lifetime,” then, to be enforceable, that agreement must be in writing and “subscribed by
the party to be charged.” N.Y. Gen. Oblig. Law § 5-701(a)(1);
see also Guilbert v. Gardner
, 480
F.3d 140, 151 (2d Cir. 2007). “[F]ull performance by all parties must be possible within a year
to satisfy the Statute of Frauds.”
Guilbert
,
The agreement alleged by Truman unavoidably falls within the Statute of Frauds because it is not capable of full performance by both parties within one year. Even assuming arguendo that the terms of the agreement were otherwise enforceable, Truman’s Complaint alleges that, in consideration for money, Truman agreed to remain silent as to the nature of her relationship with Brown and as to Samantha’s paternity. See Compl. ¶ 74; Demand Ltr. at 3. And, as alleged by *13 Truman, there was no temporal sunset on Truman’s confidentiality obligation––Truman’s duty never to reveal these harmful facts was perpetual.
Confidentiality conditions such as this, which are intended to continue indefinitely, are
barred by the Statute of Frauds if they are not in writing and signed by the party to be charged.
See, e.g.
,
Almeciga v. Ctr. for Investigative Reporting, Inc.
,
To be sure, Brown’s payment obligation to Truman could be completed within one year.
But the Statute of Frauds applies where either side’s performance obligation extends beyond one
year, as is the case here with Truman’s vow of silence. And while some cases have focused on
whether the defendant’s obligation is enduring,
see, e.g.
,
City of Yonkers v. Otis Elevator Co.
,
In light of this body of law, Truman therefore, properly, does not contend that her agreement with Brown, if not in writing and subscribed to by Brown, could survive under the Statute of Frauds. Instead, although not stating so explicitly, she implies that the agreement satisfies the Statute of Frauds. To this end, she makes two arguments: that Brown ratified the agreement through part performance; and that the documentation attached to her Complaint— including her letters to Brown, text message exchanges with Brown, email exchanges with Brown, and transcripts of her oral conversations with Brown—“clearly defines the contract’s terms.” Pl. Mem. at 10. These arguments, however, do not carry the day.
*15
First, Brown’s partial performance—making one $100,000 payment to Truman—cannot
save the agreement under the Statute of Frauds. Although New York courts have held that part
performance satisfies the Statute of Frauds as to contracts governed by General Obligations
Law § 5-703, which applies to real estate contracts, they have not so held with respect to
contracts governed by General Obligations Law § 5-701, which applies to agreements, like the
one that Truman alleges existed here, that cannot be performed within one year.
See, e.g.
,
Messner
,
In any event, even assuming
arguendo
that the doctrine of part performance could apply
to contracts incapable of performance within one year, it would not apply to the agreement pled
here. Under that doctrine, “the acts of part performance must have been those of the party
insisting on the contract, not those of the party insisting on the Statute of Frauds,” because the
point of the part-performance doctrine is to protect the party who has substantially performed in
reliance on the contract.
Messner
,
Second, the motley communications filed by Truman as attachments to her Complaint
and as ostensibly embodying the parties’ agreement––which consist of emails, text messages,
phone call transcripts, and letters––do not satisfy the Statute of Frauds. To do so, the parties’
agreement must have been evidenced by “some note or memorandum thereof . . . in writing, and
*16
subscribed by the party to be charged therewith.” N.Y. Gen. Oblig. § 5-701(a). Such a writing
also “must contain substantially the whole agreement and all its material terms and conditions, so
that one reading it can understand from it what the agreement is.”
Kobre v. Instrument Sys.
Corp.
,
Here––even assuming
arguendo
that the iterative sequence of written communications
and transcripts of oral communications on which Truman relies could be reliably read to
constitute an integrated agreement bearing definite terms––there is no such writing. Critically,
the Complaint here, and its exhibits, do not reveal any document that is signed by Brown at all,
as required by the Statute of Frauds. N.Y. Gen. Oblig. § 5-701(a). Instead, Brown’s unsigned
emails state only: “Sent from my iPhone.”
[5]
See
Email Chain at 2–3. And the assembled
documentation on which Truman collectively relies as ostensibly satisfying the Statute of Frauds
is infirm in other ways. For example, Truman relies on “oral evidence,”
i.e.
, transcripts of the
phone calls that she unilaterally recorded. These, however, do not constitute a writing within the
meaning of the Statute of Frauds.
See Sonders v. Roosevelt
,
Accordingly, Truman’s breach of contract claim is barred by the Statute of Frauds. 2. Illegality
Brown argues that Truman’s breach of contract claim is independently deficient because
the agreement that Truman posits would be illegal. Illegal agreements “are, as a general rule,
*17
unenforceable” in a breach of contract action.
Lloyd Capital Corp. v. Pat Henchar, Inc.
, 80
N.Y.2d 124, 127 (1992). “It is the settled law of [New York] (and probably every other State)
that a party to an illegal contract cannot ask a court of law to help him carry out his illegal
object.”
State v. Freeman
,
Here, Brown argues that the agreement alleged by the Complaint is illegal because, on
the facts pled, it is the product of extortion by Truman.
See
Def. Mem. at 11. Under New York
law, a person commits extortion if she compels or induces another to transfer property to her by
instilling in that person a fear that if the property is not delivered, the actor or someone working
with her will “[e]xpose a secret or publicize an asserted fact, whether true or false, tending to
subject some person to hatred, contempt or ridicule.” N.Y. Penal Law § 155.05(2)(e)(v).
Attempted extortion is also a crime.
See id.
§ 110.00. In cases involving contracts found to be
extortionate, New York courts have dismissed claims of breach, on the grounds that such
contracts are illegal and unenforceable.
See Yao v. Bult
,
Critically here, an element of extortion is a threat, from the person seeking the property,
that she will expose the controversial secret or fact.
See People v. Dioguardi
,
The parties disagree about whether the Complaint and attached exhibits demonstrate that Truman threatened Brown, as required to find extortion. Brown argues that the Complaint and the accompanying Demand Letter support such a threat: In his framing, Truman demanded $500,000 from him, implying that she might otherwise disclose their longstanding affair and *18 Samantha’s paternity. See Def. Mem. at 11; Def. Reply at 5 (citing Demand Ltr. at 3). As Brown notes, Truman, after Samantha learned about Brown’s likely paternity, wrote: “You thought . . . no one would find out and there never would be consequences.” Sept. 17, 2018 Ltr. at 1. Truman counters that, based on the Complaint and the documents attached to it, the condition that Truman remain silent was introduced by Brown, and that, viewing the pleadings in the light most favorable to Truman, she did not threaten, explicitly or implicitly, to disclose these damaging facts. See Pl. Mem. at 7–8.
The Court regards this question as close. Favoring Brown’s reading, New York courts
have held that agreements involving payments to induce a party to stay silent regarding sexual
relationships and other intimate information bespeak extortion and are hence void for illegality.
In
Yao
, for example, the plaintiff, a lawyer who had had an intimate relationship with a wealthy
financial executive, threatened to expose that the executive was gay and that he had previously
been in a relationship with an individual with AIDS.
See Matter of Yao
,
As Brown notes, the agreement alleged by Truman contains similar terms to that in Yao . In the Demand Letter sent to Brown’s attorney, Truman’s attorney described the agreement as follows: “Ms. Truman promised not to contact [Brown] or [his] family or divulge the true nature of [their] relationship and the paternity of her daughter in exchange for [his] promise to pay her $500,000. [He] accepted that offer by agreeing to pay; thereafter a valid contract was formed.” Demand Ltr. at 3. This statement is consistent with Truman’s having––at least implicitly–– threatened that, if she were not paid, she would expose her sexual relationship with Brown and Brown’s out-of-wedlock paternity of Samantha, both of which constitute “secret[s]” that would tend to subject Brown to “hatred, contempt or ridicule.” N.Y. Penal Law § 155.05(2)(e)(v).
At the same time, Truman cites to allegations in the Complaint and attached exhibits that, although not establishing that Brown, unprompted, demanded Truman’s silence as a condition on which he would pay her, are at least consistent with that series of events. [7] On this reading, while the terms of Truman and Brown’s agreement parallel those held void as extortionate in Yao , the non-disclosure condition was Brown’s impetus exclusively.
In the end, the Court is mindful that on a motion to dismiss, the pleadings must be read in
the light most favorable to the plaintiff. A court must be wary of drawing factual inferences for a
*20
defendant that, even if rational, are arguable.
See Edrei v. Maguire
,
To be sure, Brown’s claim that Truman implied such a threat, prompting his insistence on such a condition, is quite plausible. A finder of fact, upon hearing the principals’ testimony and reviewing the documentary evidence, including the Demand Letter, might well so conclude. But that reading––that Truman introduced the threat of disclosure––is not the only plausible one. Truman’s alternative theory is not inconceivable. She posits that, after Samantha learned of Brown’s apparent paternity, Truman did no more than ask for money from Brown, and that it was Brown who, newly fearful of disclosure now that there was no longer a secret to be kept from Samantha, on his own initiative demanded a vow of silence from Truman as a condition for paying her. On that reading, Truman’s acquiescence to that condition, without more, would not constitute extortion on her part. See Andrea Doreen Ltd. v. Bldg. Material Local Union , 299 F. Supp. 2d 129, 156 (E.D.N.Y. 2004) (no extortion because no threat); cf. People v. Flynn , 475 *21 N.Y.S.2d 334, 338 (Sup. Ct., N.Y. County 1984) (larceny by trick and false pretenses charges, N.Y. Penal Law § 155.05(2)(a), not viable where evidence did not “rise to the level of even an implied threat”).
Were Truman’s breach of contract claim not blocked by the Statute of Frauds, the decisive question as to whether the contract was the product of extortion and hence inherently illegal––whether Truman expressly or impliedly threatened disclosure of Brown’s secrets–– would have been tested in discovery. Brown’s claim that the agreement with Truman, if any, was the product of a threat of disclosure would then have been assessed on a full record of the parties’ communications, and resolved, at summary judgment or at trial. However, because the breach of contract claim is independently deficient, there is no occasion to undertake such discovery.
The Court, accordingly, dismisses Truman’s breach of contract, but only on the first ground urged by Brown: that the agreement Truman alleges is barred by the Statute of Frauds.
B. Intentional Infliction of Emotional Distress
The Court next addresses Truman’s claim for intentional infliction of emotional distress (“IIED”).
To plead a claim of IIED under New York law, a plaintiff must allege “(1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of
causing, severe emotional distress; (3) a causal connection between the conduct and the injury;
and (4) severe emotional distress.”
Conboy v. AT&T Corp.
,
Brown moves to dismiss Truman’s IIED claim for two reasons. First, he argues that much of the actions alleged in the Complaint are time barred. See Def. Mem. at 16–18. Second, he argues that the Complaint does not allege extreme and outrageous conduct, and that Truman’s conduct within the limitations period falls particularly short of that standard. See id. at 18–20; see also Def. Reply at 7–8.
1. Statute of Limitations
IIED is subject to a one-year statute of limitations.
Gallagher v. Dirs. Guild of Am.
,
Although addressed by neither party, some New York courts have applied the
“continuing tort” doctrine when determining whether IIED claims are barred by the one-year
statute of limitations.
See, e.g.
,
Shannon v. MTA Metro-N. R.R.
,
The Court accordingly examines Brown’s alleged conduct in the year before Truman filed the Complaint. Truman alleges the following: (1) Brown’s failure to pay $500,000 in accordance with their alleged agreement, see Compl. ¶ 92; (2) Brown’s accusation to Truman that their agreement was extortionate, see id. ¶ 93; and (3) Brown’s counsel’s statement, in the Demand Response letter, that Brown was “looking forward to establishing a more involved relationship with Samantha,” see id. ¶ 94. See Pl. Mem. at 14–15. Truman argues that this conduct is “beyond all possible bounds of decency” because it “comes at the end of a 34-year *24 relationship that should have been resolved amicably” and “plays games” with her. Id. at 15 (citation omitted).
The Court holds, on this issue, with Brown. The above conduct, viewed separately and together, falls well short of the level of extreme and outrageous conduct required under New York law to establish IIED.
First, Brown’s failure to pay Truman $500,000 under their agreement is not extreme and
outrageous. As noted above, the agreement may be illegal and invalid, if the product of an
implied or express threat of disclosure by Truman; if so, Brown’s breach of it could not form the
basis for an IIED claim.
See Valenza v. Emmelle Coutier, Inc.
,
Second, Brown’s accusation of extortion by Truman does not qualify as extreme and
outrageous conduct.
See
Compl. ¶ 93. Even assuming this accusation was false, false
accusations of criminal conduct, or conduct that society deems reprehensible, do not inherently
establish IIED.
See, e.g.
,
Nungesser v. Columbia Univ.
,
More generally, Brown’s statement, through counsel, that Truman’s conduct was
extortionate was not at all outrageous. Truman does not allege that Brown pursued or threatened
a criminal prosecution, but merely that Brown’s counsel so characterized her conduct in a private
writing.
See, e.g.
,
Kurschus v. PaineWebber, Inc.
,
Third, counsel’s statement that Brown was “looking forward to establishing a more involved relationship with Samantha” is also not actionable. Truman depicts this statement as an attempt by Brown to “play games” with her after the end of their 34-year relationship. Pl. Mem. at 15. The Court assumes arguendo that, as Truman’s pleadings imply, Brown did not have an authentic intention to develop a relationship with his apparent biological daughter, then an adult. *27 Even if so, his statement of his intention to do so was not extreme or outrageous, measured against the high standards set by the case law.
For the above the reasons, and having considered Brown’s alleged conduct within one year of the Complaint’s filing as a whole, the Court finds that it was not sufficiently extreme to qualify as IIED. As such, the continuing tort doctrine does not apply, and Brown’s earlier conduct toward Truman, is not properly considered. The Court therefore dismisses the Complaint’s IIED claim for failure to state a claim.
2. Extreme and Outrageous Conduct Brown independently argues that, even if the full range of his conduct toward Truman dating back to 1985 were properly considered, it would not qualify as extreme and outrageous conduct, as necessary to establish IIED. See Def. Mem. 18–20. Although Brown’s historical conduct toward Truman presents a substantially closer question than his conduct following February 19, 2018, Brown is ultimately correct on this point, too.
The Complaint provides extensive detail about Truman’s relationship with Brown, dating
back to 1985.
See
Compl. ¶ 12. In short, the Complaint alleges that the two had a consensual,
decades-long affair.
See id.
¶ 22. New York courts, however, have found that consensual affairs
among adults do not inherently constitute extreme or outrageous conduct.
See, e.g.
,
Wende C. v.
United Methodist Church
,
To be sure, Truman’s Complaint alleges much deeply distasteful conduct on Brown’s
part in the course of the longtime affair. For example, it alleges that when Truman sought a loan
from Brown, he replied that, “if you cannot get the money anywhere else, you will have to pay
me back with your body.” Compl. ¶ 91. But New York courts—while recognizing that sexual
harassment may, on rare occasions, constitute a basis for IIED,
see Chau v. Donovan
, 357
F. Supp. 3d 276, 287 (S.D.N.Y. 2019)—have found “crude and offensive statements of a
sexually derisive nature” not to rise to the level of extreme and outrageous.
Shea v. Cornell
Univ.
,
Of the reported cases,
Marmelstein v. Kehillat New Hempstead
,
This case has considerable parallels to Marmelstein . As there, the Complaint alleges that Truman was vulnerable when she met Brown—she was 21 years old, lacked a father figure, and had endured an abusive childhood—and that Brown was aware of these vulnerabilities. See Compl. ¶¶ 12, 19–21. The Complaint alleges that Brown made Truman “believe that he cared for her and that she was special to him,” id. ¶ 23; that she was part of his family, see id. ¶¶ 51– 52; and that he “would be there for her” if she ever needed anything, id. ¶ 50. The Complaint alleges that Truman believed that a sexual relationship with Brown would allow her to keep her job, id. ¶ 23; and suggests that their sexual relationship primarily was at Brown’s behest, see id. ¶ 88 (Brown manipulated Truman into his “sexual possession” and “sexual ‘play thing’”); see also Sept. 17, 2018 Ltr. (“Now that the truth is out—don’t you think it is your turn to step up and return the favor to me for all the pleasure/escape I gave you in life.”); Sept. 21, 2018 Ltr. (“I wonder how much I am worth being a sex slave in the end.”). The Complaint further alleges that *30 Truman agreed to stay silent about their relationship and Samantha’s paternity, and to cut off contact with Brown’s family. Compl. ¶¶ 74, 77. After the relationship ended and Samantha’s paternity was made public, the Complaint alleges, Truman’s relationship with her daughter and boyfriend deteriorated, leaving her to feel “completely alone.” Id. ¶¶ 81, 84. Brown’s tawdry conduct is thus on a par with that in Marmelstein . But it is not materially more extreme or outrageous. As such, given the Marmelstein precedent, Truman’s Complaint––even treating as cognizable all allegations dating back to 1985––fails to allege sufficiently extreme and outrageous conduct to make out a claim of IIED.
The Court accordingly holds that the Complaint has failed to state a claim for IIED. C. Negligent Infliction of Emotional Distress
The Court finally turns to Truman’s claim of negligent infliction of emotional distress (“NIED”). It, too, fails to state a claim.
Under New York law, a plaintiff alleging NIED must show “(1) extreme and outrageous
conduct, (2) a causal connection between the conduct and the injury, and (3) severe emotional
distress.”
Green v. City of Mount Vernon
,
The conduct on Brown’s part that forms the basis of Truman’s NIED claim is the same as
formed the basis for her IIED claim. As such, for the same reasons that Brown’s claim of IIED
*31
failed to allege extreme and outrageous conduct, her claim of NIED similarly fails.
See Vail v.
City of New York
, No. 18 Civ. 9169 (JPO),
Truman’s NIED claim is deficient for a second reason. Under the case law, there are limited recognized contexts in which a claim of NIED may be viable. A plaintiff must plead, in addition to the elements above, facts making out one of three “theories”: (1) a bystander theory, (2) a direct duty theory, or (3) a special circumstances theory. See Baker v. Dorfman , 239 F.3d 415, 421 (2d Cir. 2000). Truman’s Complaint pleads none.
Under the bystander theory, a plaintiff must allege that “(1) she [was] threatened with
physical harm as a result of defendant’s negligence; and (2) consequently she suffer[ed]
emotional injury from witnessing the death or serious bodily injury of a member of her
immediate family.”
Mortise v. United States
,
Under the direct duty theory, a plaintiff must allege that “she suffer[ed] an emotional
injury from defendant’s breach of a duty which unreasonably endangered her own physical
safety.”
Mortise
,
Finally, New York law recognizes specific “special circumstances” cases for NIED
where there is “an especial likelihood of genuine and serious mental distress, arising from . . .
special circumstances, which serves as a guarantee that the claim is not spurious.”
Baker
,
The Court therefore dismisses the NIED claim.
D. Leave to Amend
Truman requests leave to amend any deficient portions of the Complaint. Pl. Mem. at 16.
Federal Rule of Civil Procedure 15(a) instructs that courts “should freely give leave [to amend a
complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “When a claim is dismissed
because of pleading deficiencies, the usual remedy is to permit a plaintiff to amend [her]
complaint.”
A.I.B. Express, Inc. v. FedEx Corp.
,
However, “[a] district court has discretion to deny leave for good reason, including
futility, bad faith, undue delay, or undue prejudice to the opposing party.”
McCarthy v. Dun &
Bradst. Corp.
,
Pappas
,
Separately, Truman has made only a conclusory request for leave to amend––in her
opposition to Brown’s motion to dismiss, she seeks, in a sentence, “leave to amend those
deficient portions of her Complaint.” Pl. Mem. at 16. Despite being on notice of the
deficiencies claimed by Brown, Truman has not identified any proposed amendments for the
Court to evaluate that might cure the deficiencies afflicting each of her claims. This, too,
supports denial of leave to amend, on futility grounds.
See Gregory v. ProNAi Therapeutics Inc.
,
CONCLUSION For the foregoing reasons, the Court grants Brown’s motion to dismiss, and dismisses the Complaint, with prejudice. The Clerk of Court is respectfully instructed to terminate the motion pending at docket 10 and to close this case.
SO ORDERED. (cid:3)(cid:4)(cid:2)(cid:1)(cid:5)
____________________________ Paul A. Engelmayer United States District Judge Dated: January 21, 2020
New York, New York
Notes
[1] This account is drawn from Truman’s complaint, Dkt. 1 (“Compl.”), and its attached exhibits,
Dkts. 1-4–1-10.
See DiFolco v. MSNBC Cable LLC
,
[2] There have been a number of submissions and orders aimed at assuring that, given the sensitive matters discussed in various filings, that public filings were properly redacted. On September 6, 2019, the Court issued a sealed order, and an accompanying publicly filed order, instructing counsel to publicly file redacted versions of the Complaint and Brown’s memorandum of law in support of his motion to dismiss. See Dkt. 21. On September 10, 2019, Brown filed a redacted version of his memorandum of law. Dkt. 22. The same day, the Court issued a sealed order and a public order that directed Brown’s counsel to file a redacted version of the exhibit in support of his motion to dismiss. Dkt. 23. On September 11, 2019, Truman filed a letter asking for clarification of the September 10, 2019 sealed order. Dkt. 24. That day, Brown filed a second redacted version of his memorandum of law, Dkt. 25, in addition to the Warner declaration, Dkt. 26, and a redacted version of the exhibit containing a copy of the Complaint, Dkt. 26-1. The Court also issued an order instructing Truman to file a redacted version of the Complaint. Dkt. 27. Truman three times attempted to file redacted versions of the Complaint, but these attempts did not comply with the Court’s instructions in its sealed orders. See Dkts. 30, 32. On September 16, 2019, Truman, now compliant, filed a redacted version of the Complaint. Dkt. 33.
[3] In light of these rulings, the Court does not have occasion to reach Brown’s third argument.
The Court does note, however, that although compensation for illicit sexual relations cannot
form the primary or main consideration for an agreement,
see, e.g.
,
Reid v. McLeary
, 706
N.Y.S.2d 179, 180 (2d Dep’t 2000);
Pfeiff v. Kelly
,
[4] It is no answer that Truman conceivably could die within one year. While death would prevent
her from thereafter personally disclosing the pair’s secrets, it would not prevent her Estate from
doing so. The agreement here, as alleged, is not expressly terminable upon death.
Burke v.
Bevona
,
[5] Although a typed signature at the end of an email may constitute a signed writing for purposes
of the Statute of Frauds,
see Stevens v. Publicis, SA
,
[6] While the First Department case that addressed the contract question,
Yao
, 666 N.Y.S.2d at
159, does not recount these facts, the two cited cases do so. These summarize the facts of the
Yao dispute in the context of disciplinary hearings that resulted in plaintiff’s temporary
suspension from the Bar,
Matter of Yao
,
[7] See Pl. Mem. at 8 (citing Compl. ¶ 74 (Brown “made it clear that he would give Ms. Truman money on the condition that she would forebear from disclosing the paternity of Samantha to his family”)); see also id. at 8 n.1 (citing Call Trs. at 11 (Brown stating in voicemail that “I think we gotta discuss this a little bit . . . how to know that this is, will be the end of it. And that we won’t be con, contacted either of our, either of us, or you my family at all.”); Email Chain at 2 (Brown stating in email that he “need[s] to be assured that this will be the end of any and all contact”); Email Chain at 3 (Brown asking in email, “What guarantees do I have that no family members or anyone Wil [sic] ever be contacted about this again?”)).
[8]
See, e.g.
,
Wiener v. Unumprovident Corp.
,