Preview
FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023
SUPREME COURT STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------x
VIRGINIA L. GIUFFRE, Index No.: 150003/2023
Plaintiff.
v
AFFIRMATION IN REPLY TO
DEFENDANT RINA OH’S
OPPOSITION TO PLAINTIFF’S
MOTION TO DISMISS
RINA OH n/k/a RINA OH AMEN,
Defendant.
----------------------------------------------------x
KATHLEEN R. THOMAS, ESQ., an attorney duly admitted to practice law in the State of
New York for the above-captioned matter, hereby affirms, pursuant to CPLR §2106, the truth of
the following under penalties of perjury:
1. I am an attorney at THOMAS COUNSELORS AT LAW, LLC. Together with
JILLIAN ROTH, ESQ., attorney at LAFFEY BUCCI & KENT, LLP, we are attorneys for the
Plaintiff in the above-captioned action, and I am fully familiar with the facts and circumstances in
this matter.
2. Plaintiff submits this attorney affirmation in further support of Plaintiff Virginia
Giuffre’s Motion to Dismiss Defendant Rina Oh n/k/a Rina Oh Amen’s Answer with Counter-
Claims pursuant to CPLR 3211 (a) (1) and (7), and in opposition to Defendant Oh Amen’s filings
in opposition to Plaintiff’s Motion.
3. Defendant Oh Amen’s Motion and accompanying Memorandum of Law and
Exhibits fail to overcome the documentary evidence currently before this Honorable Court that
unambiguously and undeniably disproves Defendant Oh’s counter suit as a matter of law.
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4. "Generally, on a motion to dismiss made pursuant to CPLR 3211, the court must
"accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible
favorable inference, and determine only whether the facts as alleged fit into any cognizable legal
theory." Leon v. Martinez, 84 N.Y.2d 83, 87-88. However, "[i]n those circumstances where the
legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are
not presumed to be true or accorded every favorable inference. Biondi v. Beekman Hill House Apt.
Corp., 257 A.D.2d 76, 81, affd 94 N.Y.2d 659; Kliebert v. McKoan, 228 A.D.2d 232, lv denied 89
N.Y.2d 802.
I. PLAINTIFF’S DOCUMENTARY EVIDENCE IN SUPPORT OF HER
MOTION TO DISMISS SATISFIES THE REQUIREMENTS OF CPLR
§3211(a)(1)
5. Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary
evidence submitted utterly refutes plaintiff's factual allegations and conclusively establishes a
defense to the asserted claims as a matter of law. If the documentary proof disproves an essential
allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is warranted even if the
allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of
action" Petito v. Law Offices of Bart J. Eagle PLLC, 2018 N.Y. Slip Op. 30499, 3 (N.Y. Sup. Ct.
2018), citing Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58 (1st Dept 2015).
6. In Andrews v. Exceeding Expectations. Inc., the court further clarified that the
evidence must "resolve all factual issues as a matter of law, and conclusively dispose of the
plaintiff's claim" in order to qualify as documentary evidence. 2018 N.Y. Slip Op. 33432 (N.Y.
Sup. Ct. 2018). The inquiry that the court must consider is 1) whether the evidence is unambiguous
and undeniable; and 2) whether the evidence resolves all factual issues as a matter of law and
conclusively disposes of the plaintiff’s claims.
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7. The evidence is not limited to judicial records or documents reflecting out-of-court
transactions, as Defendant Oh would suggest--these are simply examples provided by the court.
8. For example, the Court in 150 Broadway Assoc. v. Bodner, 14 A.D.3d 1 (N.Y. App.
Div. 2004) reasoned that “where a written agreement (such as the lease in this case) unambiguously
contradicts the allegations supporting a litigant's cause of action for breach of contract, the contract
itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to
CPLR 3211 (a) (1), regardless of any extrinsic evidence or self-serving allegations offered by the
proponent of the claim.”
9. The contents of the documents must also be "essentially undeniable" to qualify as
proper "documentary evidence." Fontanetta v Doe, 73 AD3d 78, 85 (2d Dept 2010).
10. Defendant Oh undermines her own argument that Plaintiff’s documents submitted
in support of her motion are insufficient to warrant dismissal by introducing documentary evidence
of the same type introduced by Plaintiff as exhibits to her opposition, along with documents that
have next to no relevance or reliability, such as tabloid news articles.
11. Despite espousing that this Court cannot consider deposition testimony or self-
serving affidavits, Defendant Oh cites to those exact type of documents and attaches a self-serving
affidavit to contest the evidence set forth by Plaintiff. The First Department has consistently held
that affidavits do not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1).
Webster v. Golding, 77 Misc. 3d 1215 (N.Y. Sup. Ct. 2022).
12. Here, documents submitted in support of Plaintiff’s motion to dismiss pursuant to
CPLR 3211(a)(1) include Ms. Oh’s own prior statements, verified, self-recorded or sworn to under
oath.
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13. Defendant Oh’s own defamation complaint filed in the United States District of
Southern New York (Defendant Oh’s Exhibit “B”) undermines her claims as inconsistent with the
facts pled in her countersuit against Plaintiff Giuffre.
14. For instance, Defendant Oh pled in her defamation action that “Plaintiff [Oh] and
Defendant spoke and saw each other only on a few occasions in Palm Beach, Florida and few
occasions in New York.” See Exhibit “B” to Defendant Oh’s Reply in Opposition to Plaintiff’s
Motion to Dismiss Counterclaims, NYSCEF Doc. No. 27 at ¶10.
15. Yet, in her countersuit, and affidavit attached as an exhibit to her opposition,
Defendant Oh now asserts that she has been in the presence of Ms. Giuffre on four occasions, three
times in New York and once in Florida. See Affidavit of Defendant, NYSCEF Doc. No. 34 at ¶2.
At no time in her defamation pleadings in federal court, including in her Amended Complaint, has
Ms. Oh alleged any sexual abuse by Ms. Giuffre. See Exhibit “B”, NYSCEF Doc. No. 27.
16. Additional evidence offered by Defendant Oh in opposition to Plaintiff Giuffre’s
Motion to Dismiss includes prior deposition testimony of Ms. Giuffre from two unrelated lawsuits,
Edwards v. Dershowitz, Case No.: 15-000072, Circuit Court of the 17th Judicial District in and for
Broward County (Defendant Oh’s Exhibit “D”) and Giuffre v. Maxwell, 15-cv-07433 (LAP),
United States District Court, S.D.N.Y. (Defendant Oh’s Exhibit “E”).
17. Oh asserts that these one-sentence portions of Ms. Giuffre’s prior testimony stand
to contradict the documentary evidence supporting the fact that Ms. Giuffre was not physically in
New York during the Fall of 2001, when Oh alleges she was assaulted by Ms. Giuffre at Epstein’s
New York mansion.
18. Defendant Oh cites to Ms. Giuffre’s testimony to try to controvert the flight logs
submitted as exhibits in Ms. Giuffre’s Motion to Dismiss (along with several other documents that
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demonstrate her presence in Florida at the time). An actual reading of this deposition testimony in
fact supports Ms. Giuffre’s evidence, as she testified in both matters that she was flown
commercially (i.e., not on Epstein’s private place as documented on flight logs) “...to go service
the men that Jeffrey sent me to...” (Defendant Oh’s Exhibit “D” at 118:3-4) and also into Epstein’s
island (Defendant Oh’s Exhibit “E” at 155:10).
19. As Epstein was allegedly present for this fabricated assault by Ms. Giuffre, and it
allegedly occurred in New York, not on his island, Defendant’s exhibits instead only further
support Ms. Giuffre’s evidence that she was not in New York during the time frame asserted by
Defendant Oh.
20. As such, the Court may consider whether the documentary evidence submitted by
both parties is unambiguous and undeniable and whether the evidence resolves all factual issues
as a matter of law and conclusively disposes of the plaintiff’s claims. Plaintiff’s documentary
evidence, as well as the documentary evidence submitted by Defendant Oh, are unambiguous and
undeniably demonstrate that Defendant Oh has falsely manufactured an outrageous and scandalous
sexual assault allegation against Plaintiff Giuffre to further intimidate, harass, and abuse her.
21. As such, Defendant Oh’s counterclaims against Ms. Giuffre should be dismissed in
their entirety as meritless.
II. DEFENDANT OH CANNOT MEET THE ELEMENT OF INTENT
22. Defendant Oh asserts counterclaims exclusively for intentionally tortious conduct,
which require the element of intent. All of Ms. Oh’s counterclaims fail because Ms. Guiffre has
proffered unrebutted documentary evidence that she lacked the requisite intent element at the time
of the alleged assaults. Defendant Oh does not proffer any evidence to rebut Ms. Guiffre’s official
documentation as a victim of human trafficking at the times of the alleged assaults.
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23. Further, Defendant Oh’s opposition misinterprets Ms. Giuffre’s legal arguments
made in connection with the New York State legislatures enacted the Survivors of Trafficking
Attaining Relief Together (START) Act. Ms. Giuffre does not argue, as Ms. Oh would suggest,
that the START Act explicitly relieves a defendant from civil liability, for example, negligence
claims. Ms. Giuffre’s arguments are specific to the intentional torts alleged.
24. Once a trafficking victim provides sufficient documentation of their status as a
victim, then pursuant to the New York Penal Code, there is a legal presumption that the victim
lacked the agency to intentionally commit crimes associated with their trafficking status. See CPL
440.10 (1)(i) & (6).
25. Here, the only counterclaims asserted as against Ms. Giuffre are for intentional
torts: 1) assault, 2) battery, and 3) Intentional Infliction of Emotional Distress (IIED) (See Def.
Counterclaims, ¶¶ 41 – 59). All of Ms. Oh’s causes of action require a finding of intent and not
mere negligence. “Intentional torts require proof of intent, not mere negligence. Wood v Strong
Mem. Hosp., Un. of Rochester, 262 AD2d 1054, 1055 (4th Dept 1999); Daming Liu v Rajacic
(SDNY, Feb. 17, 2023, 22 Civ. 379).
26. As stated in Defendant Oh’s own opposition briefing, “[i]ntent is an essential
element of assault …and is what distinguishes assault from negligence.... (citations omitted).” (See
NYSCEF Doc. No. 35, Def. Memo of Law, pg 10).
27. Notably, the case cited by Defendant Oh in support of her assault counterclaims,
Gould v Rempel, 99 AD3d 759 (2d Dept 2012), the Appellate Division overturned the lower court,
and found that the claimant failed to state a claim for assault. In Gould, the Second Department
held that the civil assault claims should have been dismissed because the plaintiff “failed to allege
intent on the part of the defendant.” Gould, 99 AD3d at 760.
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28. Defendant Oh’s civil battery and IIED claims must fail for the same reasons, as
intent is a requisite element that cannot be met by the counterclaimant. See e.g. Mitchell v N.Y.
Univ., 2014 NY Slip Op 30063, *11 (Sup Ct, NY County 2014) (“Likewise, the claim for battery
is insufficient for a failure to plead an intent by the safety officers to harm plaintiff by bodily
contact.”).
29. Defendant Oh’s causes of action fail as a matter of law because Ms. Giuffre has
proven through documentary evidence that she lacked agency at the time of the alleged acts (which
she maintains that she did not commit). Ms. Oh alleges that Jeffrey Epstein was allegedly present
and engaged in sexual misconduct for the duration of the alleged assault that occurred at Epstein’s
New York City townhouse. (See Def. Couterclaims ¶¶ 18 – 29). According to Defendant Oh’s
pleadings, the assaults were at the direction and control of Epstein.
30. Ms. Oh does not proffer evidence to rebut the legal presumption that Ms. Guiffre
was a victim of human trafficking by Jeffrey Epstein at the time of the alleged assaults. As such,
Ms. Oh cannot meet the element of intent required for her counterclaims.
31. Therefore, Ms. Oh fails to state a cause of action and her counterclaims should be
dismissed.
III. DEFENDANT FAILS TO STATE A CLAIM FOR ASSAULT, BATTERY, AND
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
32. Under CPLR §321I(a) (7), a party may move for dismissal of one or more causes
of action asserted against him on the ground that the pleading fails to state a cause of action.
33. On such a motion, the Court is concerned with whether the plaintiff has a cause of
action and not whether he has properly stated one. Rovello v. Orofino Realty Co., 40 N.Y.2d
633,636 (1976).
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34. “The court will liberally construe the pleadings in the plaintiff's favor, accept the
facts as true, and determine whether the facts alleged fit within any cognizable theory. Cron
v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998).
35. However, a court is not obliged to accept as true legal conclusions or factual
allegations that are either inherently incredible or flatly contradicted by evidence. Maas v. Cornell
Univ., 94 N.Y.2d 87, 91 (1999).
36. Even in the case of perfectly pleaded causes of action, a movant may, using
permissible proof, go behind the pleading to establish that it lacks merit. See Rovello, 40 N.Y.2d
at 636; see also Carnival Co. v. Metro-Goldwyn-Mayer, Inc., 23 A.D.2d 75, 77 (1st Dept. 1965).
37. As Plaintiff Giuffre has established that Defendant Oh’s pleadings lack merit and
are inherently incredible, Defendant Oh cannot sustain actions for Battery, Assault or Intentional
Infliction of Emotional Distress.
38. This is supported by the fact the Defendant Oh, in her oppositional pleadings,
blanketly asserts that her pleadings are sufficient and fails to support these assertions with any
facts or argument.
39. Further, Defendant does not plead with any particularity the damages she alleges to
have suffered and failed to address this in her opposition.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss the
counter claims asserted by Defendant Rina Oh n/k/a Rina Oh Amen against Plaintiff Virginia
Giuffre should be dismissed in their entirety for being utterly meritless, a violation of the START
Act, and insufficient in their pleadings, or such other relief as the Court deems just equitable, and
proper.
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Dated: New York, New York
June 26, 2023
_______/s/________________
Kathleen R. Thomas, Esq.
Thomas Legal Counselor at Law, LLC
One World Trade Center
85th Fl., Ste. 8500
New York, NY 10007
917.209.6446
kat@tlclawllc.com
Jillian Roth, Esq.
LAFFEY, BUCCI & KENT, LLC
One World Trade Center, 85th Floor
New York, NY 10007
215.399.9255
jroth@laffeybuccikent.com
Attorneys for Virginia Giuffre
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FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------x VIRGINIA L. GIUFFRE, Index No.: 150003/2023 Plaintiff. v AFFIRMATION IN REPLY TO DEFENDANT RINA OH’S OPPOSITION TO PLAINTIFF’S MOTION TO DISMISS RINA OH n/k/a RINA OH AMEN, Defendant. ----------------------------------------------------x KATHLEEN R. THOMAS, ESQ., an attorney duly admitted to practice law in the State of New York for the above-captioned matter, hereby affirms, pursuant to CPLR §2106, the truth of the following under penalties of perjury: 1. I am an attorney at THOMAS COUNSELORS AT LAW, LLC. Together with JILLIAN ROTH, ESQ., attorney at LAFFEY BUCCI & KENT, LLP, we are attorneys for the Plaintiff in the above-captioned action, and I am fully familiar with the facts and circumstances in this matter. 2. Plaintiff submits this attorney affirmation in further support of Plaintiff Virginia Giuffre’s Motion to Dismiss Defendant Rina Oh n/k/a Rina Oh Amen’s Answer with Counter- Claims pursuant to CPLR 3211 (a) (1) and (7), and in opposition to Defendant Oh Amen’s filings in opposition to Plaintiff’s Motion. 3. Defendant Oh Amen’s Motion and accompanying Memorandum of Law and Exhibits fail to overcome the documentary evidence currently before this Honorable Court that unambiguously and undeniably disproves Defendant Oh’s counter suit as a matter of law. 1 1 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 4. "Generally, on a motion to dismiss made pursuant to CPLR 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory." Leon v. Martinez, 84 N.Y.2d 83, 87-88. However, "[i]n those circumstances where the legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference. Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81, affd 94 N.Y.2d 659; Kliebert v. McKoan, 228 A.D.2d 232, lv denied 89 N.Y.2d 802. I. PLAINTIFF’S DOCUMENTARY EVIDENCE IN SUPPORT OF HER MOTION TO DISMISS SATISFIES THE REQUIREMENTS OF CPLR §3211(a)(1) 5. Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary evidence submitted utterly refutes plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law. If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action" Petito v. Law Offices of Bart J. Eagle PLLC, 2018 N.Y. Slip Op. 30499, 3 (N.Y. Sup. Ct. 2018), citing Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58 (1st Dept 2015). 6. In Andrews v. Exceeding Expectations. Inc., the court further clarified that the evidence must "resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's claim" in order to qualify as documentary evidence. 2018 N.Y. Slip Op. 33432 (N.Y. Sup. Ct. 2018). The inquiry that the court must consider is 1) whether the evidence is unambiguous and undeniable; and 2) whether the evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claims. 2 2 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 7. The evidence is not limited to judicial records or documents reflecting out-of-court transactions, as Defendant Oh would suggest--these are simply examples provided by the court. 8. For example, the Court in 150 Broadway Assoc. v. Bodner, 14 A.D.3d 1 (N.Y. App. Div. 2004) reasoned that “where a written agreement (such as the lease in this case) unambiguously contradicts the allegations supporting a litigant's cause of action for breach of contract, the contract itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to CPLR 3211 (a) (1), regardless of any extrinsic evidence or self-serving allegations offered by the proponent of the claim.” 9. The contents of the documents must also be "essentially undeniable" to qualify as proper "documentary evidence." Fontanetta v Doe, 73 AD3d 78, 85 (2d Dept 2010). 10. Defendant Oh undermines her own argument that Plaintiff’s documents submitted in support of her motion are insufficient to warrant dismissal by introducing documentary evidence of the same type introduced by Plaintiff as exhibits to her opposition, along with documents that have next to no relevance or reliability, such as tabloid news articles. 11. Despite espousing that this Court cannot consider deposition testimony or self- serving affidavits, Defendant Oh cites to those exact type of documents and attaches a self-serving affidavit to contest the evidence set forth by Plaintiff. The First Department has consistently held that affidavits do not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1). Webster v. Golding, 77 Misc. 3d 1215 (N.Y. Sup. Ct. 2022). 12. Here, documents submitted in support of Plaintiff’s motion to dismiss pursuant to CPLR 3211(a)(1) include Ms. Oh’s own prior statements, verified, self-recorded or sworn to under oath. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 13. Defendant Oh’s own defamation complaint filed in the United States District of Southern New York (Defendant Oh’s Exhibit “B”) undermines her claims as inconsistent with the facts pled in her countersuit against Plaintiff Giuffre. 14. For instance, Defendant Oh pled in her defamation action that “Plaintiff [Oh] and Defendant spoke and saw each other only on a few occasions in Palm Beach, Florida and few occasions in New York.” See Exhibit “B” to Defendant Oh’s Reply in Opposition to Plaintiff’s Motion to Dismiss Counterclaims, NYSCEF Doc. No. 27 at ¶10. 15. Yet, in her countersuit, and affidavit attached as an exhibit to her opposition, Defendant Oh now asserts that she has been in the presence of Ms. Giuffre on four occasions, three times in New York and once in Florida. See Affidavit of Defendant, NYSCEF Doc. No. 34 at ¶2. At no time in her defamation pleadings in federal court, including in her Amended Complaint, has Ms. Oh alleged any sexual abuse by Ms. Giuffre. See Exhibit “B”, NYSCEF Doc. No. 27. 16. Additional evidence offered by Defendant Oh in opposition to Plaintiff Giuffre’s Motion to Dismiss includes prior deposition testimony of Ms. Giuffre from two unrelated lawsuits, Edwards v. Dershowitz, Case No.: 15-000072, Circuit Court of the 17th Judicial District in and for Broward County (Defendant Oh’s Exhibit “D”) and Giuffre v. Maxwell, 15-cv-07433 (LAP), United States District Court, S.D.N.Y. (Defendant Oh’s Exhibit “E”). 17. Oh asserts that these one-sentence portions of Ms. Giuffre’s prior testimony stand to contradict the documentary evidence supporting the fact that Ms. Giuffre was not physically in New York during the Fall of 2001, when Oh alleges she was assaulted by Ms. Giuffre at Epstein’s New York mansion. 18. Defendant Oh cites to Ms. Giuffre’s testimony to try to controvert the flight logs submitted as exhibits in Ms. Giuffre’s Motion to Dismiss (along with several other documents that 4 4 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 demonstrate her presence in Florida at the time). An actual reading of this deposition testimony in fact supports Ms. Giuffre’s evidence, as she testified in both matters that she was flown commercially (i.e., not on Epstein’s private place as documented on flight logs) “...to go service the men that Jeffrey sent me to...” (Defendant Oh’s Exhibit “D” at 118:3-4) and also into Epstein’s island (Defendant Oh’s Exhibit “E” at 155:10). 19. As Epstein was allegedly present for this fabricated assault by Ms. Giuffre, and it allegedly occurred in New York, not on his island, Defendant’s exhibits instead only further support Ms. Giuffre’s evidence that she was not in New York during the time frame asserted by Defendant Oh. 20. As such, the Court may consider whether the documentary evidence submitted by both parties is unambiguous and undeniable and whether the evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claims. Plaintiff’s documentary evidence, as well as the documentary evidence submitted by Defendant Oh, are unambiguous and undeniably demonstrate that Defendant Oh has falsely manufactured an outrageous and scandalous sexual assault allegation against Plaintiff Giuffre to further intimidate, harass, and abuse her. 21. As such, Defendant Oh’s counterclaims against Ms. Giuffre should be dismissed in their entirety as meritless. II. DEFENDANT OH CANNOT MEET THE ELEMENT OF INTENT 22. Defendant Oh asserts counterclaims exclusively for intentionally tortious conduct, which require the element of intent. All of Ms. Oh’s counterclaims fail because Ms. Guiffre has proffered unrebutted documentary evidence that she lacked the requisite intent element at the time of the alleged assaults. Defendant Oh does not proffer any evidence to rebut Ms. Guiffre’s official documentation as a victim of human trafficking at the times of the alleged assaults. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 23. Further, Defendant Oh’s opposition misinterprets Ms. Giuffre’s legal arguments made in connection with the New York State legislatures enacted the Survivors of Trafficking Attaining Relief Together (START) Act. Ms. Giuffre does not argue, as Ms. Oh would suggest, that the START Act explicitly relieves a defendant from civil liability, for example, negligence claims. Ms. Giuffre’s arguments are specific to the intentional torts alleged. 24. Once a trafficking victim provides sufficient documentation of their status as a victim, then pursuant to the New York Penal Code, there is a legal presumption that the victim lacked the agency to intentionally commit crimes associated with their trafficking status. See CPL 440.10 (1)(i) & (6). 25. Here, the only counterclaims asserted as against Ms. Giuffre are for intentional torts: 1) assault, 2) battery, and 3) Intentional Infliction of Emotional Distress (IIED) (See Def. Counterclaims, ¶¶ 41 – 59). All of Ms. Oh’s causes of action require a finding of intent and not mere negligence. “Intentional torts require proof of intent, not mere negligence. Wood v Strong Mem. Hosp., Un. of Rochester, 262 AD2d 1054, 1055 (4th Dept 1999); Daming Liu v Rajacic (SDNY, Feb. 17, 2023, 22 Civ. 379). 26. As stated in Defendant Oh’s own opposition briefing, “[i]ntent is an essential element of assault …and is what distinguishes assault from negligence.... (citations omitted).” (See NYSCEF Doc. No. 35, Def. Memo of Law, pg 10). 27. Notably, the case cited by Defendant Oh in support of her assault counterclaims, Gould v Rempel, 99 AD3d 759 (2d Dept 2012), the Appellate Division overturned the lower court, and found that the claimant failed to state a claim for assault. In Gould, the Second Department held that the civil assault claims should have been dismissed because the plaintiff “failed to allege intent on the part of the defendant.” Gould, 99 AD3d at 760. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 28. Defendant Oh’s civil battery and IIED claims must fail for the same reasons, as intent is a requisite element that cannot be met by the counterclaimant. See e.g. Mitchell v N.Y. Univ., 2014 NY Slip Op 30063, *11 (Sup Ct, NY County 2014) (“Likewise, the claim for battery is insufficient for a failure to plead an intent by the safety officers to harm plaintiff by bodily contact.”). 29. Defendant Oh’s causes of action fail as a matter of law because Ms. Giuffre has proven through documentary evidence that she lacked agency at the time of the alleged acts (which she maintains that she did not commit). Ms. Oh alleges that Jeffrey Epstein was allegedly present and engaged in sexual misconduct for the duration of the alleged assault that occurred at Epstein’s New York City townhouse. (See Def. Couterclaims ¶¶ 18 – 29). According to Defendant Oh’s pleadings, the assaults were at the direction and control of Epstein. 30. Ms. Oh does not proffer evidence to rebut the legal presumption that Ms. Guiffre was a victim of human trafficking by Jeffrey Epstein at the time of the alleged assaults. As such, Ms. Oh cannot meet the element of intent required for her counterclaims. 31. Therefore, Ms. Oh fails to state a cause of action and her counterclaims should be dismissed. III. DEFENDANT FAILS TO STATE A CLAIM FOR ASSAULT, BATTERY, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 32. Under CPLR §321I(a) (7), a party may move for dismissal of one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. 33. On such a motion, the Court is concerned with whether the plaintiff has a cause of action and not whether he has properly stated one. Rovello v. Orofino Realty Co., 40 N.Y.2d 633,636 (1976). 7 7 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 34. “The court will liberally construe the pleadings in the plaintiff's favor, accept the facts as true, and determine whether the facts alleged fit within any cognizable theory. Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998). 35. However, a court is not obliged to accept as true legal conclusions or factual allegations that are either inherently incredible or flatly contradicted by evidence. Maas v. Cornell Univ., 94 N.Y.2d 87, 91 (1999). 36. Even in the case of perfectly pleaded causes of action, a movant may, using permissible proof, go behind the pleading to establish that it lacks merit. See Rovello, 40 N.Y.2d at 636; see also Carnival Co. v. Metro-Goldwyn-Mayer, Inc., 23 A.D.2d 75, 77 (1st Dept. 1965). 37. As Plaintiff Giuffre has established that Defendant Oh’s pleadings lack merit and are inherently incredible, Defendant Oh cannot sustain actions for Battery, Assault or Intentional Infliction of Emotional Distress. 38. This is supported by the fact the Defendant Oh, in her oppositional pleadings, blanketly asserts that her pleadings are sufficient and fails to support these assertions with any facts or argument. 39. Further, Defendant does not plead with any particularity the damages she alleges to have suffered and failed to address this in her opposition. WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss the counter claims asserted by Defendant Rina Oh n/k/a Rina Oh Amen against Plaintiff Virginia Giuffre should be dismissed in their entirety for being utterly meritless, a violation of the START Act, and insufficient in their pleadings, or such other relief as the Court deems just equitable, and proper. 8 8 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2023 09:12 PM INDEX NO. 150003/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2023 Dated: New York, New York June 26, 2023 _______/s/________________ Kathleen R. Thomas, Esq. Thomas Legal Counselor at Law, LLC One World Trade Center 85th Fl., Ste. 8500 New York, NY 10007 917.209.6446 kat@tlclawllc.com Jillian Roth, Esq. LAFFEY, BUCCI & KENT, LLC One World Trade Center, 85th Floor New York, NY 10007 215.399.9255 jroth@laffeybuccikent.com Attorneys for Virginia Giuffre 9 9 of 9