Ho v. Onefinestay

Background

Winson Ho and Jennifer Bagley alleged that they rented an apartment in Manhattan through Pierpont Reservations Limited, which the opinion also calls Onefinestay or OFS. They alleged that, after four nights in the apartment, they discovered a concealed, powered-on webcam in the master bedroom. The camera was positioned to view the bed and the bedroom entrance, where the plaintiffs had dressed, undressed, and had private conversations. They alleged that the camera could capture audio and video and, on information and belief, had recorded them.

The plaintiffs alleged that OFS advertised that it personally visited and vetted every home, prepared homes to exacting hospitality standards, and disclosed relevant facts to renters. They alleged that OFS failed to discover and remove the camera. They asserted negligence, negligent infliction of emotional distress, reckless infliction of emotional distress, and a violation of New York General Business Law § 349 against OFS. Against Steven E. Winick, they asserted intentional and negligent infliction of emotional distress and a claim under 18 U.S.C. § 2511, the federal wiretap law.

Arguments and procedural issues

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(3), which concerns improper venue, and Rule 12(b)(6), which tests whether a complaint adequately states a legal claim. They relied in part on a Guest Reservation Agreement between the plaintiffs and OFS and an Accommodation Agreement involving Winick. The court declined to consider those agreements on the Rule 12(b)(6) motion because the amended complaint did not rely on or incorporate them, and the court declined to convert the motion into a motion for summary judgment. The court also disregarded affidavits submitted with the motion.

The Guest Reservation Agreement stated that proceedings could be brought in any court of competent jurisdiction in England or Wales. The court held that this language was permissive rather than mandatory. It therefore did not require the case to be brought in England or Wales. Because the events arose from the plaintiffs’ stay at an apartment in the district, the court held that venue in the Southern District of New York was proper.

Rulings on the claims against OFS

The court denied dismissal of Count II, the negligent-infliction-of-emotional-distress claim. It held that the plaintiffs adequately alleged that OFS owed them a duty connected to concealed cameras in guest rooms, that OFS’s failure to properly vet the apartment caused the alleged privacy invasion, and that the plaintiffs alleged direct rather than merely consequential harm. The court further held that the plaintiffs did not need to establish that footage actually existed to plead this claim at the dismissal stage.

The court granted dismissal of Count III, the reckless-infliction-of-emotional-distress claim. The plaintiffs alleged that OFS failed to discover and remove the camera, but did not allege that OFS installed the camera or actually knew about it. The court held that allegations showing, at most, that OFS should have known about the camera did not satisfy the requirement of extreme and outrageous conduct or show the necessary intent or disregard for severe emotional harm.

The court denied dismissal of Count IV, the claim under New York General Business Law § 349. It held that the plaintiffs identified specific OFS statements about personally vetting every home and preparing homes to hotel standards, alleged that they relied on those statements, and alleged that the statements could deceive similarly situated customers.

The opinion’s opening disposition also states that, as to OFS, dismissal was denied for Counts I, II, and IV and granted for Count III. Count I was the negligence claim.

Rulings on the claims against Winick

The court denied dismissal of all claims against Winick. For intentional infliction of emotional distress, the court held that intentionally maintaining a concealed camera aimed at people during intimate moments was adequately alleged as extreme and outrageous conduct. The court also held that the plaintiffs did not need to prove at this stage that footage existed or had been released.

For negligent infliction of emotional distress, the court held that New York General Business Law § 395-b(2-a) could supply a duty owed directly to the plaintiffs. The court found the allegations that Winick maintained a concealed camera aimed at the plaintiffs’ private moments, and that the plaintiffs suffered severe emotional distress, sufficient to proceed.

For the federal wiretap claim under 18 U.S.C. § 2511, the court rejected Winick’s argument that no private lawsuit was available. The court explained that the complaint alleged interception or attempted interception of the plaintiffs’ oral communications, rather than a private satellite video communication, and held that the statute provides a private right of action for alleged interception of oral communications. The opinion’s discussion concludes that dismissal of this claim was denied.

Disposition

The court denied the defendants’ motion under Rule 12(b)(3). It denied in part and granted in part the defendants’ Rule 12(b)(6) motion: it granted dismissal of OFS’s Count III claim for reckless infliction of emotional distress, denied dismissal of OFS’s Counts I, II, and IV, and denied the motion in its entirety as to Winick.