Beter v. Baughman

Background

Petra Christina Beter sued Duane Baughman concerning an alleged sexual assault on September 14, 2001, after Baughman allegedly arranged for her to photograph Michael Bloomberg for his mayoral campaign. Her amended complaint asserted eleven causes of action, including intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), assault and battery, discrimination and retaliation under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), and a claim under New York City’s Gender-Motivated Violence Protection Law (GMVPL). The amended complaint also relied on the Adult Survivors Act (ASA), which can revive certain otherwise time-barred civil claims arising from conduct that would constitute a qualifying sexual offense.

The claims against Edward Skyler had previously been dismissed for failure to timely serve him, and the claims against Douglas Schoen had previously been dismissed for failure to state a claim. The pending motion concerned only Baughman and the amended complaint.

Legal standard

Baughman moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. At this stage, the court accepts well-pleaded factual allegations as true and asks whether they plausibly support relief.

Adult Survivors Act and timeliness

The court rejected Baughman’s argument that Beter had not adequately alleged conduct covered by the ASA. The amended complaint alleged that Baughman pushed his crotch into Beter’s face, pushed her to the floor, climbed on top of her, and said that she “want[ed] it.” The recommendation concluded that these allegations could constitute forcible touching under New York Penal Law § 130.52 or sexual abuse in the first degree under § 130.65. It also concluded that the ASA could revive Beter’s discrimination and retaliation claims because the amended complaint alleged that the sexual assault created a hostile work environment. The recommendation therefore denied Baughman’s motion to dismiss all claims as time barred.

Gender-Motivated Violence Protection Law

The GMVPL requires allegations that the defendant committed an offense against the plaintiff that presented a serious risk of physical injury and was committed, at least partly, because of gender-based animus. The recommendation concluded that Beter adequately alleged this element. It relied on the alleged severity of the conduct and Baughman’s statement that Beter “want[ed] it” despite her protests. The recommendation therefore denied dismissal of the GMVPL claim for failure to state a claim.

Negligent infliction of emotional distress

The recommendation concluded that Beter did not adequately plead NIED. Under New York law, a direct-duty theory requires an emotional injury caused by a breach of a duty specific to the plaintiff that unreasonably endangered her physical safety. The amended complaint did not allege that Baughman owed Beter such a duty. The recommendation also stated that the alleged conduct was intentional, and New York law generally does not allow intentional conduct to be recast as negligence. It therefore recommended granting dismissal of the NIED claim with prejudice.

Employment discrimination and retaliation

The recommendation concluded that Beter did not adequately allege that Baughman was her employer or that she and Baughman were both employed by the Bloomberg campaign. The amended complaint alleged contact for photography purposes, a potential employment opportunity, and one photography assignment, but did not clearly allege an employment or independent-contractor relationship. The recommendation further stated that, when the alleged assault occurred, the NYSHRL and NYCHRL did not cover discrimination claims by independent contractors, and later amendments did not apply retroactively.

The recommendation also found that Beter had not clearly identified the protected activity that allegedly led Baughman to retaliate through a 2023 defamation lawsuit. It recommended granting with prejudice dismissal of the NYSHRL and NYCHRL claims for employment discrimination, retaliation, and aiding and abetting those claims.

Intentional infliction of emotional distress

Baughman first challenged the IIED claim in his reply brief, after not addressing it in his opening memorandum. The recommendation stated that this waived the argument. It also concluded that the challenge failed on the merits because the alleged conduct—shoving his crotch into Beter’s face, telling her that she “want[ed] it,” pushing her to the floor, and climbing on top of her—was sufficiently extreme and outrageous to support an IIED claim at the pleading stage. The recommendation therefore denied dismissal of the IIED claim.

Leave to amend and disposition

Beter requested leave to amend if the motion was not denied in full, but did not explain how amendment would cure the pleading deficiencies. The recommendation concluded that amendment would be futile as to the NIED and employment-related claims and declined to recommend leave to amend those claims.

Magistrate Judge Robyn F. Tanofsky recommended that Baughman’s motion to dismiss be denied in part and granted in part: dismissal of all claims as time barred should be denied; dismissal of the GMVPL and IIED claims for failure to state a claim should be denied; dismissal of the NIED claim should be granted with prejudice; and dismissal of the NYSHRL and NYCHRL employment discrimination, retaliation, and related aiding-and-abetting claims should be granted with prejudice. The recommendation stated that Beter should be allowed to proceed with her IIED, assault-and-battery, and GMVPL claims. The opinion is a report and recommendation addressed to Judge Gregory H. Woods, and the notice states that the parties had fourteen days after service to file objections.