Naughright v. Weiss

Decision Date18 November 2011
Docket NumberNo. 10 Civ. 8451 (RWS).,10 Civ. 8451 (RWS).
PartiesJamie A. NAUGHRIGHT, Plaintiff, v. Donna Karan WEISS, Urban Zen, LLC, Stephen M. Robbins, John Does 1–25, Defendants.
CourtU.S. District Court — Southern District of New York


Mizzone Law Firm, P.A., by: John A. Testa, Esq., Yonkers, NY, for Plaintiff.

Gordon & Silber, P.C., by: Laura E. Rodgers, Esq., New York, NY, for Defendants Donna Karan Weiss and Urban Zen, LLC.

Goldsmith, Richman & Harz, by: Howard S. Richman, Esq., New York, NY, for Defendant Stephen M. Robbins.


SWEET, District Judge.

The defendants, Donna Karan Weiss (Karan) and Urban Zen, LLC (Urban Zen) (collectively, the “Karan Defendants), and the defendant Stephen M. Robbins (Robbins) (collectively with the Karan Defendants, the Defendants), have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint of the plaintiff, Jamie A. Naughright (“Naughright” or the Plaintiff). Based on the conclusions set forth below, the motions are granted.

Prior Proceedings

The diversity complaint of Naughright against the Defendants was filed on November 8, 2010 (the “Complaint”). It alleged thirteen causes of action characterized as: (1) assault and battery, (2) offensive physical touching, (3) negligent advice, (4) negligent failure to warn, (5) aiding and abetting the commission of a tort, (6) recklessness-conspiracy to commit tort, (7) landowner negligence, (8) fraud, (9) breach of fiduciary duty, (10) malicious misrepresentation, (11) breach of contract intended third party beneficiary, (12) intentional infliction of emotional distress, and (13) negligent infliction of emotional distress, all arising out of treatment rendered to Naughright by Robbins on November 9, 2009 which is alleged to have resulted in physical injury suffered by Naughright.

The circumstances surrounding the incident are described in paragraphs 8–17 of the Complaint as set forth below:

8. At all times material to the within causes of action Donna Karan Weiss was [a] business associate and social acquaintance of Jamie A. Naughright.

9. At all times material to the within causes of action Stephen M. Robbins stated he was ‘affiliated’ with the UCLA Medical Center, and that he was also associated with the Los Angeles Police Department in some professional capacity involving ‘counseling.’

10. At all times material to the within causes of action Donna Karan Weiss controlled a substantial interest of Urban Zen, LLC.

11. At all times material to the within causes of action Donna Karan Weiss operated Urban Zen at least in part to exploit market opportunities to achieve financial gain for herself and other investors.

12. At all times material to the within causes of action at least one aspect of the business strategy used by, for, or on behalf of Donna Karan Weiss was to market Urban Zen as a unique combination of Western and Eastern cultures such to provide a benefit not elsewhere available to the consumer of Urban Zen goods and services.

13. At all times material to the within causes of action Donna Karan Weiss controlled premises commonly known as 55 Central Park West in the City, County, and State of New York, which she utilized on at least the date of November 8th, 2009 in a mixed purpose use, including but not limited to as a location to promote, advance, accomplish, and conduct the business of Urban Zen, its affiliated and related businesses both directly and indirectly.

14. At all times material to the within causes of action Donna Karan Weiss, personally, or through Urban Zen, or both, engaged for a fee pursuant to a contract Stephen M. Robbins (or an organization he controlled) to provide ‘healing services' to individuals designated as market decision makers, (and others) in at least in part the hope and expectation, that by introducing such individuals to Urban Zen through Stephen M. Robbins the market value of Urban Zen would rise, to the financial benefit of Donna Karen Weiss and others with an investment in Urban Zen, its related and affiliated entities, directly or indirectly.

15. At all times material to the within causes of action Donna Karan Weiss desired, expected, instructed, and required certain business associates and colleagues, including plaintiff Jamie A. Naughright to use the services of Stephen M. Robbins in the presence of the aforementioned market makers to create, enhance, or perpetuate the appearance that knowledgeable persons, such as plaintiff Jamie A. Naughright, benefitted from services provided by Stephen M. Robbins as promoted, sponsored, and encouraged by Donna Karan Weiss and Urban Zen.

16. At no time material to the within causes of action was Stephen M. Robbins licensed in the State of New York to provide physical, medical, massage, chiropractic, physical therapy, or health care services of the type and nature performed on November 8th, 2009 upon plaintiff Jamie A. Naughright, or if licensed Stephen M. Robbins did so in a manner not in compliance with minimum professional standards of care and conduct.

17. At no time material to the within causes of action did Donna Karan Weiss, Urban Zen, Stephen M. Robbins, or any other person disclose to plaintiff Jamie A. Naughright that Stephen M. Robbins was either unlicensed in the State of New York or, if licensed, that the activity he sought to undertake was dangerous when not practiced by a licensed professional in the particular field according to professional standards, or was prohibited by law, by state regulation, (or both) and in any event that the conduct proposed by Donna Karen Weiss and to be performed by Stephen M. Robbins posed a high risk of actual harm, including severe physical injury.

The Complaint alleges that, as a result of the Defendants' conduct, including Robbins' alleged twisting Naughright's head and causing herniation of a cervical disc, the bilateral fracture of Naughright's mandibular joint, and harm to the auditory canal, Naughright has come under the care of multiple medical professionals and has been disabled from gainful employment and performing the duties and functions of her occupation. Compl. ¶ 24, 27, 28. The Complaint requests an unspecified sum of compensatory damages, punitive damages, attorney's fees and costs, and other relief the Court may deem proper. The instant motions to dismiss were marked fully submitted on June 28, 2011.1

The Rule 12(b)(6) Standard

On a motion to dismiss pursuant to Rule 12, all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). The issue “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235–36, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs must allege sufficient facts to “nudge[ ] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Though the court must accept the factual allegations of a complaint as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

The First Cause of Action Alleging Assault And Battery Is Dismissed

The First Cause of Action in the complaint is labeled “Assault and Battery” arising out of the touching of Naughright by Robbins. Compl. ¶¶ 19–20, 24. The Complaint also states that the Defendants failed to inform Naughright that Robbins was not a licensed health care provider or that the activity he sought to perform was prohibited in New York State. Compl. ¶ 21.

Under New York law,2 civil assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact. United Nat. Ins., Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir.1993); Cohen v. Davis, 926 F.Supp. 399, 402 (S.D.N.Y.1996); Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538 (2d Dep't 2002). Here, however, Naughright does not allege that she was ever concerned or apprehensive that any act of the Defendants was about to cause her harmful or offensive bodily contact. The Complaint alleges that Naughright consented to receive Robbins' healing services without apprehension or fear because she thought Robbins was a licensed professional. Compl. ¶¶ 9, 14, 15, 16, and 17. If the Plaintiff was not aware of the potential for danger, or apprehensive that imminent offensive contact could occur, there can be no claim for assault. See e.g., Bunker v. Testa, 234 A.D.2d 1004, 1005, 652 N.Y.S.2d 181 (4th Dep't 1996) (no cause of action for assault stated because the actions complained of did not cause the plaintiff imminent apprehension of harmful or offensive contact); Hayes v. Schultz, 150 A.D.2d 522, 541 N.Y.S.2d 115 (2d Dep't 1989) (actions that are discourteous but do not create “imminent apprehension” of “harmful or offensive contact” do not constitute an assault).

The Complaint also fails to state a cognizable claim for battery. To make out a prima facie claim of battery, the plaintiff must establish (1) the defendant made bodily contact, (2) that was harmful or offensive, (3) with intent and (4) without the plaintiff's consent. Siegell v. Herricks Union Free Sch. Dist., 7 A.D.3d 607, 609, 777 N.Y.S.2d 148 (2d Dep't 2004). With respect to the Karan Defendants, Naughright does not claim the Karan Defendants ever made contact with her person. With respect to...

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