Carreras v. Fontanez

• Decision Date: 30 March 2022
• Docket Number: 1:20-cv-5765 (MKV)
• Parties: WILLIAM CARRERAS, Plaintiff, v. MODESTO FONTANEZ, Defendant.
• Court: U.S. District Court — Southern District of New York

WILLIAM CARRERAS, Plaintiff, v. MODESTO FONTANEZ, Defendant.

No. 1:20-cv-5765 (MKV)

United States District Court, S.D. New York

March 30, 2022

OPINION AND ORDER GRANTING MOTION TO DISMISS

MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE

Plaintiff William Carreras alleges that Defendant Modesto Fontanez sexually abused him in Puerto Rico decades ago. Mr. Fontanez moves to dismiss this lawsuit for failure to state a claim upon which relief can be granted. For the reasons that follow, the Court grants the motion.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the Second Amended Complaint [ECF No. 33] (“SAC”), the fact section of which is a mere six paragraphs long. Plaintiff's allegations are accepted as true for purposes of this motion, and all reasonable inferences are drawn in his favor. See Lynch v. City of New York, 952 F.3d 67, 74-75 (2d Cir. 2020). The allegations are construed in the light most favorable to Plaintiff as the non-moving party. Id.

Modesto Fontanez sexually abused William Carreras. SAC ¶ 7. The abuse began when Mr. Carreras was five years old and continued for two years, from 1968 to 1970. SAC ¶ 7. Mr Fontanez would openly masturbate in front of Mr. Carreras fondle him, and force Mr. Carreras to shower with him. SAC ¶¶ 8-10. The acts of abuse “all occurred in Puerto Rico.” SAC ¶ 11. As a result of the abuse Mr. Carreras has suffered “severe and permanent emotional distress” and “great pain of mind and body.” SAC ¶ 12. Mr. Carreras seeks punitive damages against Mr Fontanez under theories of assault, battery, false imprisonment, and negligent and intentional infliction of emotional distress. SAC at 4-8.

Plaintiff initiated this action in July 2020. [ECF No. 1]. Following service, and the Defendant's failure to appear, Plaintiff moved for default judgment. [ECF No. 11]. The Court held a hearing on the motion, during which it identified numerous issues with the then-operative complaint, including that it contained insufficient allegations of jurisdiction and venue; was filed under a pseudonym without leave of the Court; and contained no allegations stating an identifiable cause of action, but merely invoked the New York statute reviving stale abuse claims. [ECF No. 19]. The Court denied the motion for default judgment, and granted Plaintiff leave to amend his complaint. [ECF No. 18]. Thereafter, Plaintiff filed an amended complaint. [ECF No. 26].

After he was served with the amended complaint, Defendant appeared and sought leave to file a motion to dismiss this action. [ECF No. 29]. The Court granted Defendant leave to move to dismiss, and directed Plaintiff to file a letter if he intended to further amend his complaint in light of the arguments made in the pre-motion letter. [ECF No. 31] (noting that “[t]his will be Plaintiff's last opportunity to amend his pleading in response to arguments raised in Defendant's pre-motion letter”). Plaintiff thereafter elected to amend his complaint for a second time, and filed the operative Second Amended Complaint. Pending before the Court is Defendant's motion to dismiss [ECF No. 34] under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In support of his motion, Defendant has filed a memorandum of law. [ECF No. 36] (“Mem.”). Plaintiff has filed an opposition to the motion [ECF No. 37] (“Opp.”), to which Defendant replied. [ECF No. 39] (“Reply”).

LEGAL STANDARD

To withstand dismissal for failure to state a claim pursuant to Rule 12(b)(6), a pleading “must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although the plausibility standard is “not akin to a ‘probability requirement,' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In deciding a motion to dismiss under Rule 12(b)(6), a court must accept factual allegations as true and construe all reasonable inferences in the plaintiff's favor. ECA, Local 134 IBEW Joint Pension Tr. of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). The Court, however, does not accept as true “legal conclusions” contained in a complaint. Iqbal_t556 U.S. 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim upon which relief can be granted. Id.

DISCUSSION

Plaintiff's claims are predicated on the New York Child Victims Act (the “CVA”). As the Court discussed with Plaintiff's counsel at the hearing on his default judgment motion, the CVA did not create a cause of action. [ECF No. 19]. Rather, it opened a window for bringing expired civil actions involving sexual abuse of minors. N.Y. C.P.L.R § 214-g. Plaintiff acknowledges that, without the CVA, his claims would not be timely. See SAC ¶ 4. The CVA provides, in relevant part, that

Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law . . . which is barred as of the effective date of this section . . . is hereby revived ....

Defendant argues that the CVA does not apply to conduct that occurred outside New York state, Mem. at 4; Reply at 4, and that Plaintiff's claims are time-barred by New York's statute of limitations borrowing statute, Mem. at 6, Reply at 8. Plaintiff contends that a plain reading of the CVA “suggests it does not require the conduct to have occurred in New York, ” Opp. at 2, and that the CVA bars the application of New York's borrowing statute, Opp. at 3.^[1] The Court agrees with Defendant that the CVA does not apply to revive Plaintiff's claims in this case, and that New York's borrowing statute operates to bar Plaintiff's claims.

I. THE CVA DOES NOT APPLY TO PLAINTIFF'S CLAIMS OF ABUSE THAT OCCURRED IN PUERTO RICO

Unless expressly indicated otherwise, a New York statute^[2] does not apply outside the state. See Global Reinsurance Corp. U.S. Branch v. Equitas Ltd., 18 N.Y.3d 722, 969 N.E.2d 187, 946 N.Y.S.2d 71 (2012); Goshen v. Mut. Life Ins. Co., 286 A.D.2d 229, 230, 730 N.Y.S.2d 46 (1st Dept. 2001) (“No legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it”) aff'd, 98 N.Y.2d 314, 774 N.E.2d 1190, 746 N.Y.S.2d 858 (2002). That is especially the case where criminal laws are implicated, because a “state only has power to enact and enforce criminal laws within its territorial borders.” People v. McLaughlin, 80 N.Y.2d 466, 471, 606 N.E.2d 1357, 591 N.Y.S.2d 966 (1992).

The CVA revives claims “which would constitute a sexual offense” as defined in the “penal law” under either Section 255.27, 255.26 or 255.25 or 263.05. N.Y. C.P.L.R. § 214-g (emphasis added). New York Penal Law § v. (1) defines “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state.” New York Criminal Procedure Law Section 20.10(1), defines “this state” as “New York State as its boundaries are prescribed in the state law, and the space over it.” Based on the foregoing, the Court concludes that the plain language of the CVA means that it does not apply to conduct that occurred entirely outside of New York. See Holloway v. Holy See, 537 F.Supp.3d 502, 505 n.2 (S.D.N.Y. May 5, 2021) (“The CVA is clear that it relies on New York criminal law, which does not apply to conduct in Mississippi”); id. (“Claims arising pursuant to the CVA must be tied to an alleged violation of New York criminal law, and thus the CVA cannot revive claims where the alleged abuse occurred outside of New York”); S.H. v. Diocese of Brooklyn, No. 517999/2019, 2020 N.Y. Misc. LEXIS 4394, 2020 WL 4730433, at *3 (N.Y. Sup. Ct. Aug. 14, 2020) (CVA does not apply to extraterritorial conduct based on plain text and legislative history). Because the CVA does not revive Plaintiff's claims (which he concedes otherwise would be untimely, SAC ¶ 4), the Second Amended Complaint fails to state a claim upon which relief can be granted. See Holloway, 537 F.Supp.3d at 5 n. 2.

II. PLAINTIFF'S CLAIMS ARE OTHERWISE TIME-BARRED

Even if the CVA applied to Plaintiff's wholly extraterritorial claims, this case must still be dismissed as time-barred. Under New York Civil Practice Law and Rules Section 202, “[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued.”^[3]

Plaintiff argues that because the CVA contains a clause that it shall apply “[n]otwithstanding any provision of law which imposes a period of limitation to the contrary, ” N.Y C.P.L.R. § 214-g, it overrides New York's borrowing statute. Opp. at 3-4. The Court does not agree. It is settled law that a revival statute's application “notwithstanding any other provision of law” does not work to...