Preview
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Motion Sequence #2
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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TAMMY DELEVER,
Plaintiff, Index No. 161172/2018
vs.
ONE TASTE, INC.,
Defendant.
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ONETASTE, INC.’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS THE COMPLAINT
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ..................................................................................................
1
RELEVANT FACTS AND PROCEDURAL HISTORY ............................................................ 1
A. The Parties ..................................................................................................................
1
B. Procedural History ......................................................................................................
2
C. The Amended Complaint ............................................................................................
3
ARGUMENT ................................................................................................................................
4
I. Standard on a Motion to Dismiss ...................................................................................... 5
II. Plaintiff’s Claim for Breach of Contract Fails to State a Claim ...................................... .5
A. No Contract Has Been Alleged ................................................................................... 6
B. No Breach by One Taste Has Been Alleged ............................................................... 7
III. Plaintiff’s Second Count for Fraud Must be Dismissed ................................................... 9
A. The Fraud Claim Fails to State a Cause of Action...................................................... 9
B. Plaintiff’s Fraud Claim is Duplicative of the Contract Claim .................................... 11
IV. Counts Three, Four and Five Must be Dismissed Because They are Time-Barred .......... 13
A. Count Three is Time-Barred ....................................................................................... 13
B. Count Four is Time-Barred ......................................................................................... 14
C. Count Five is Time-Barred ......................................................................................... 14
V. The Claim for Sexual Harassment Must be Dismissed for Failure to State a
Claim Upon Which Relief May be Granted ..................................................................... 15
VI. The Claim for Intentional Infliction of Emotional Distress Should be Dismissed
Because it Fails to State a Claim Upon Which Relief Can be Granted ............................ 17
VII. The Claim for Negligent Infliction of Emotional Distress Should be Dismissed
Because it Fails to State a Claim Upon Which Relief Can be Granted ............................ 19
VIII. Plaintiff’s Demands for Punitive Damages Must be Dismissed ....................................... 21
CONCLUSION…………………………………………………………………………………..22
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TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. Rafi, 2010 WL 1640131 (Sup. Ct., N.Y. Cnty., Apr. 8, 2010) ........................................ 15
Anderson v. Abodeen, 29 A.D.3d 431 (1st Dept. 2006) ................................................................ 18
Austin v. Gould, 137 A.D.3d 495 (1st Dept. 2016).......................................................................... 6
Barnes v. Hodge, 118 A.D.3d 633 (1st Dept. 2014) ........................................................................ 5
Bellissimo v. Mitchell, 122 A.D.3d 560 (2nd Dept. 2014) ............................................................. 14
Borkowski v. Borkowski, 39 N.Y.2d 982 (1976)........................................................................... 22
Borrerro v. Haks Group, Inc., 165 A.D.3d 1216 (2nd Dept. 2018) ............................................... 20
Bridges v. Wagner, 80 A.D.3d 528 (1st Dept. 2011) ..................................................................... 14
Brown v. Wolf Group Integrated Communications, Ltd.,
23 A.D.3d 239 (1st Dept. 2005) ................................................................................................ 10
Caniglia v. Chicago Tribune-N.Y. News Syndicate, Inc.,
204 A.D.2d 233 (1st Dept. 1994) ................................................................................................ 7
Capellupo v. Nassau Health Care Corp.,
97 A.D.3d 619, 623 (2nd Dept. 2012)........................................................................................ 17
Carbures Europe, S.A. v. Emerging Mkt. Intrinsic Cayman Ltd.,
148 A.D.3d 421 (1st Dept. 2017) .............................................................................................. 12
Chanko v. American Broadcasting Companies Inc.,
27 N.Y.3d 46 (2016) ............................................................................................................ 17,18
Cheslowitz v. Bd. Of Tr. of the Knox Sch.,
2015 WL 1912296 (Sup. Ct., Suffolk Cnty. Apr. 14, 2015)..................................................... 10
CIBC Bank & Trust Co. v. Credit Lyonnais,
270 A.D.2d 138 (1st Dept. 2000) ................................................................................................ 5
CIFG Assur. North America, Inc. v. J.P. Morgan Securities. LLC,
146 A.D.3d 60 (1st Dept. 2016) ................................................................................................ 10
Clayton v. Best Buy Co.,
48 A.D.3d 277 (1st Dept. 2008) ................................................................................................ 18
Coast to Coast Energy, Inc., v. Gasarch,
149 A.D.3d 485 (1st Dept. 2017) .............................................................................................. 22
Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137 (2017) ................................................................................................................. 9
Cronos Group Ltd. v. XComIP, LLC,
156 A.D.3d 54 (1st Dept. 2017) ............................................................................................. 9,11
Daluise v. Sottile, 40 A.D.3d 801 (2nd Dept. 2007) ...................................................................... 20
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Ferreyr v. Soros, 116 A.D.3d 407 (1st Dept. 2014) ................................................................. 19,20
Gattegno v. The Tr. of Columbia Univ. in the City of N.Y.,
2012 WL 123562 (Sup. Ct., N.Y. Cnty., Jan. 9, 2012) ............................................................. 15
Gedula 26, LLC v. Lightstone Acquisitions III LLC,
150 A.D.3d 583 (1st Dept. 2017) .............................................................................................. 12
Godfrey v. Spano, 13 N.Y.3d 358 (2009) ....................................................................................... 5
Goldstein v. Massachusetts Mut. Life Ins. Co.,
32 A.D.3d 821 (2nd Dept. 2006)................................................................................................ 14
Gregor v. Rossi, 120 A.D.3d 447 (1st Dept. 2014) ......................................................................... 9
Harris v. Seward Park Hous. Corp.,
79 A.D.3d 425 (1st Dept. 2010) .................................................................................................. 5
Havell Capital Enhanced Mun. Income Fund, L.P. v. Citibank, N.A.,
84 A.D.3d 588 (1st Dept. 2011) ................................................................................................ 11
Herrington v. Metro-North Commuter R.R. Co.,
118 A.D.3d 544 (1st Dept. 2014) .............................................................................................. 14
Hirsch v. Stellar Mgmt., 148 A.D.3d 588 (1st Dept. 2017) ........................................................... 10
Hoeffner v. Orrick, Herrington & Sutcliffe LLP,
85 A.D.3d 457 (1st Dept. 2011) ........................................................................................... 22,23
Horwitz v. Loop Capital Markets LLC,
2016 WL 7117206 (Sup. Ct., N.Y. Cnty., Dec. 5, 2016).......................................................... 12
Howell v. New York Post Co., 81 N.Y.2d 115 (1993) ............................................................. 17,18
ID Beauty S.A.S. v. Coty Inc. Headquarters,
164 A.D.3d 1186 (1st Dept. 2018) ............................................................................................ 12
Jae Hee Chung v. Mary Manning Walsh Nursing Home Co., Inc.,
147 A.D.3d 452 (1st Dept. 2017) .............................................................................................. 13
Kennedy v. McKesson Co., 58 N.Y.2d 500 (1983) ....................................................................... 19
Khalil v. State, 847 N.Y.S.2d 390 (Sup. Ct. N.Y. Cnty. 2007) .................................................... 13
Kraus v. Visa Int’l. Serv. Ass’n,
304 A.D.2d 408 (1st Dept. 2003) ................................................................................................ 7
Lama Holding Co. v. Smith Barney,
89 N.Y.2d 413 (1996) ................................................................................................................. 9
Lifecare v. Ast,
2015 WL 4400215 (Sup. Ct., N.Y. Cnty., July 17, 2015) ........................................................ 12
Longo v. Armor Elevator Co., Inc., 307 A.D.2d 848 (1st Dept. 2003) ......................................... 22
Marino v. Vunk, 39 A.D.3d 339 (1st Dept. 2007)............................................................................ 6
Matter of Sud v. Sud, 211 A.D.2d 423 (1st Dept. 1995) .................................................................. 6
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McCabe v. Consulate General of Canada,
– N.Y.S.3d – , 2019 WL 1064104 (1st Dept. 2019) .................................................................... 6
McEntee v. Van Cleef & Arpels,
166 A.D.2d 359 (1st Dept. 1990) ................................................................................................ 7
McRedmond v. Sutton Place Restaurant and Bar, Inc.,
48 A.D.3d 258 (1st Dept. 2008) ................................................................................................ 18
Mejia v. T.N. 888 Eighth Ave. LLC Co.,
-- N.Y.S.3d --, 2019 WL 960020 (1st Dept. 2019) .................................................................... 13
Mountain Creek Acquisition LLC v. Intrawest U.S. Holdings, Inc.,
96 A.D.3d 633 (1st Dept. 2012) ................................................................................................ 22
Murphy v. American Home Prods. Corp.,
58 N.Y.2d 293 (1983) ............................................................................................................... 18
New York Univ. v. Continental Inc. Co.,
87 N.Y.2d 308 (1995) ............................................................................................................... 11
Ornstein v. New York City Health & Hosps. Corp.,
10 N.Y.3d 1 (2008) ................................................................................................................... 19
Patmos Fifth Real Estate Inc. v. Mazl Bldg. LLC,
2013 WL 3942115 (Sup. Ct., N.Y. Cnty., July 29, 2013) ....................................................... 8,9
Pludeman v. Northern Leasing Systems, Inc.,
10 N.Y.3d 486 (2008) ................................................................................................................. 9
Princes Point, LLC v. AKRF Engineering, P.C.,
94 A.D.3d 588 (1st Dept. 2012) ........................................................................................... 22-23
Print & More Assoc., Inc. v. Stenzler,
2013 WL 3723199 (Sup. Ct., N.Y. Cnty., July 8, 2013) .......................................................... 12
Reznick v. Bluegreen Resorts Mgmt., Inc.,
154 A.D.3d 891 (2nd Dept. 2017)................................................................................................ 8
RK Solutions, LLC v. George Westinghouse Info. Tech. High Sch.,
116 A.D.3d 445 (1st Dept. 2014) ................................................................................................ 6
Ross v. Louise Wise Serv., Inc., 8 N.Y.3d 478 (2007) .................................................................. 22
Rothman v. RNK Capital, LLC,
2015 WL 5096024 (Sup. Ct., N.Y. Cnty., Aug. 26, 2015) ....................................................... 21
Santiago-Mendez v. City of New York,
136 A.D.3d 428 (1st Dept. 2016) .............................................................................................. 14
Schultes v. Kane, 50 A.D.3d 1277 (3rd Dept. 2008)...................................................................... 14
Sheila C. v. Povich, 11 A.D.3d 120 (1st Dept. 2004) .................................................................... 17
Springut Law PC v. Rates Tech. Inc.,
157 A.D.3d 645 (1st Dept. 2018) .............................................................................................. 12
Stauber v. New York City Tr. Auth., 10 A.D.3d 280 (1st Dept. 2004)........................................... 18
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Suarez v. Bakalchuk, 66 A.D.3d 419 (1st Dept. 2009) .................................................................. 18
Suri v. Grey Global Group, Inc.,
164 A.D.3d 108, 83 N.Y.S.2d 9 (1st Dept. 2018) ..................................................................... 16
Villacorta v. Saks Inc.,
2011 WL 2535058 (Sup. Ct., N.Y. Cnty. May 6, 2011) ............................................................. 8
Taggart v. Costabile, 131 A.D.3d 243 (2nd Dept. 2015).......................................................... 17,18
Walker v. Sheldon, 10 N.Y.2d 401 (1961) .................................................................................... 22
Williams v. New York City Hous. Auth.,
61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dept. 2009) ..................................................................... 16
Statutes
CPLR 214(2) ................................................................................................................................. 14
CPLR 214(5) ................................................................................................................................. 15
CPLR 215(3) ................................................................................................................................. 14
CPLR 3211(a)(5) ................................................................................................................... Passim
CPLR 3211(a)(7) ................................................................................................................... Passim
CPLR 3016(b) ........................................................................................................................ Passim
N.Y. Administrative Code § 8-502(d) .......................................................................................... 14
N.Y. Administrative Code § 8-107(1)(a) ...................................................................................... 16
N.Y. EXEC § 296(1)(a) ................................................................................................................ 16
N.Y. Jur. 2d Limitations and Laches § 215 (2019) ....................................................................... 15
42 U.S.C. 2000e-2(a) .................................................................................................................... 16
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PRELIMINARY STATEMENT
Defendant OneTaste Inc. (“OneTaste”) respectfully moves to dismiss the Amended
Complaint pursuant to CPLR 3211(a)(5) and (a)(7) and CPLR 3016 (b).
Plaintiff, Tammy Delever (“Delever”), a former student of OneTaste, has filed a five-count
Amended Complaint purporting to allege a host of misconduct by OneTaste. That Amended
Complaint, however, fails to state a single cause of action that can survive this motion. Indeed,
the Amended Complaint amounts to nothing more than a litany of vague and disparate facts – pled
by way of the “kitchen sink” method – searching for a cause of action it cannot find.
For example, after detailing what Delever hopes are salacious facts that “hook” the Court’s
interest, she purports to allege a “breach of contract” claim without ever identifying a single
contract or agreement between the parties, let alone the terms thereof, or any breach by OneTaste.
Similarly, she tries to allege a “fraud” claim without alleging a single misrepresentation made by
OneTaste, or any of the other elements which must be pleaded with particularity under CPLR
3016(b). Likewise, she alleges far-flung claims of sexual harassment, intentional infliction of
emotional distress and negligent infliction of emotional distress, each of which are clearly time-
barred, and each of which fails to allege conduct that would suffice to plead such claims. Finally,
Delever seeks $2 million in punitive damages in connection with her meritless fraud and negligent
infliction of emotional distress claims, without alleging any facts that would come close to meeting
the high standard for such damages. At bottom, this is nothing more than a nuisance lawsuit where
Delever has tried four times to allege viable claims against OneTaste and has still come up short.
RELEVANT FACTS AND PROCEDURAL HISTORY
A. The Parties
As alleged in the Amended Complaint, Delever participated as a student in the OneTaste
program from approximately February 2013 to 2014. Amended Complaint ¶¶ 2. Defendant
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OneTaste, Inc. is a woman-owned global lifestyle brand focused on increasing health, happiness
and connection through proven methods combining mindfulness and sexuality. One of these
methods is a meditative practice known as Orgasmic Meditation. (“OM”). See Institute of OM,
(March 8, 2018), https://instituteofom.com. OM is a scientifically based partnered and structured
meditation practice. OM is not practiced for sexual gratification, nor is it practiced for any purpose
other than to develop an individual’s personal wellbeing by improving connections between mind
and body. The practice of OM is being scientifically studied by, among other recognized academic
centers, the University of Pittsburgh.1
B. Procedural History
On November 29, 2018, unbeknownst to OneTaste, Delever filed under seal a Summons
and Verified Complaint. Docket No. 1; Affirmation of Marjorie Berman (“Berman Aff.”) ¶ 3.
This first Complaint, however, was not served on OneTaste, and was unknown to OneTaste until
recently. Berman Aff. ¶ 4. Rather, OneTaste was served with a sealed Order to Show Cause,
which attached to it a different Complaint entitled “Verified Complaint.” Docket No. 5; Berman
Aff. ¶ 5. That five count, sealed, pseudonymous Verified Complaint alleged violations of various
labor laws. Berman Aff., ¶ 5-6, Exh. A. The parties stipulated to an adjournment of a responsive
pleading until after the Court rendered a decision on Delever’s application to proceed by
pseudonym. Berman Aff. ¶ 7. That pseudonym application was denied by Order dated January
14, 2019. Berman Aff., ¶8.
Following that decision, counsel for the parties agreed that the labor-based Complaint
(which had been served on OneTaste attached to the Order to Show Cause) should be amended
1
See Affidavit of Anjuli Ayers, OneTaste CEO, in support of OneTaste’s Opposition to
Delever’s motion to proceed by pseudonym. Docket No. 10.
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because, in fact, Delever had never been employed by OneTaste. Berman Aff. ¶ 9. On February
26, 2019, Delever filed an Amended Complaint which alleged virtually identical facts but asserted
revised causes of action. Docket No. 12; Berman Aff., Exh. B. That document, however, did not
contain a prayer for relief. Id. Delever then filed yet another Amended Complaint, which is
identical to the previously Amended Complaint but included a new section entitled “Prayer for
Relief.” Berman Aff., Exh. C (“Am. Cplt” or “Amended Complaint”). The Amended Complaint
asserts claims for (1) Breach of Contract; (2) Fraud; (3) Sexual Harassment; (4) Intentional
Infliction of Emotional Distress and (5) Negligent Infliction of Emotional Distress. Am. Cplt., pp.
3-4.
C. The Amended Complaint2
Delever alleges that in June 2013 (more than five years before she filed the instant
Complaint), she voluntarily moved to New York to participate in a OneTaste “Coaching Program.”
Am. Cplt., ¶¶ 2, 3. Once in New York, she lived in communal housing with other members of the
OneTaste community. Id. ¶ 4. The Amended Complaint, while quite disjointed, complains about
OneTaste’s alleged conduct in three distinct settings.
The first setting relates to Delever as a student in OneTaste courses. Delever claims without
detail that she took courses with OneTaste, but that OneTaste modified the terms of classes by, for
example, changing the time they were taught or the teachers who taught the classes. Am. Cplt., p.3
(Breach of Contract) ¶ 3. Delever further complains about the style of teaching and the techniques
that were taught in the courses, claiming she was berated about her sexual behavior, encouraged
to participate in certain sexual practices, and humiliated in front of other students. Id. ¶¶ 10, 11,
2
OneTaste does not admit any of the allegations set forth in the Amended Complaint, but
merely recites those allegations and assumes them to be true for purposes of this motion only,
consistent with the standard applicable under CPLR 3211.
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22, 23. Although Delever provides no specific allegations, she suggests that a portion of her
payment to OneTaste included OneTaste making unauthorized withdrawals and charges on her
credit card, and that OneTaste employees accompanied her to make withdrawals from her bank.
Id. ¶¶ 20, 21. However, Delever does not assert any claim with respect to those credit card charges
or bank withdrawals, nor does she allege that the payments were not owed to OneTaste.
The second setting relates to conduct Delever purportedly witnessed or participated in while
living in communal housing. She alleges that she had to (a) share her bed with male staff members
and other men who requested sex from her, id. ¶¶ 4, 18, (b) participate in the practice of OM, id.
¶18, and (c) watch OneTaste members have sex in her sleeping area. Id. ¶ 9. She claims as well
that she was coerced into a sex practice where she was “supposed” to have sex with a different
man each night for 10 days, although she does not state that she engaged in the practice. Id. ¶ 11.
The third setting relates to assistance Delever allegedly provided to OneTaste. She alleges
that she was forced to (1) volunteer at OneTaste courses and activities, (2) educate the public about
OM, and (3) solicit members of the public to enroll in OneTaste courses. Id. ¶¶ 17, 19. Notably,
however, Delever does not assert any claim relating to these allegations. Id., pp. 3-4 (no legal
claim asserted referring to these allegations).
Delever claims that as a result of OneTaste’s alleged conduct, she has suffered emotional
distress for which she has sought therapy. Id. ¶¶ 14, 27-30. Delever seeks a refund of the fees she
allegedly paid to OneTaste ($55,000), $220,000 in compensatory damages, $300,000 for her
alleged emotional distress, $50,000 in unspecified “consequential damages,” and $3 million in
punitive damages. Id at p. 5.
ARGUMENT
The Amended Complaint fails utterly to present a single timely claim which can withstand
review by this Court under CPLR 3211, or as applicable, CPLR 3016(b). At bottom, each and
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every one of these claims fails to state a claim upon which relief may be granted, and three of the
claims are clearly time-barred.
Specifically, Counts One and Two – Breach of Contract and Fraud – fail to state a claim,
and thus should be dismissed pursuant to CPLR 3211(a)(7). Count Two should also be dismissed
because it fails to plead fraud with the particularity required by CPLR 3016(b), and because it is
duplicative of the Breach of Contract claim. Counts Three, Four and Five – Sexual Harassment,
Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress– must
be dismissed as each is time-barred. Moreover, even if this Court were to review the substance of
these three claims, they could not survive this motion to dismiss because they fail to state a claim.
Each of these bases for dismissal is discussed below.
I. Standards on a Motion to Dismiss
The standard on a motion to dismiss is familiar to the Court. While the well-pleaded facts
alleged in a complaint must be accepted as true and the proponent must be afforded every favorable
inference, “allegations consisting of bare legal conclusions…are not entitled to such
consideration.” CIBC Bank & Trust Co. v. Credit Lyonnais, 270 A.D.2d 138, 138 (1st Dept. 2000);
see also Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009) (same and affirming dismissal of claim that
lacked factual specificity); Barnes v. Hodge, 118 A.D.3d 633, 633-634 (1st Dept. 2014) (same).
II. Plaintiff’s Claim for Breach of Contract Fails to State a Claim
It is black-letter law that to state a claim for breach of contract, a party must allege each of
the following: (1) the existence of a contract, (2) performance by plaintiff, (3) breach by defendant,
and (4) damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dept. 2010).
Failure to allege one or more of these elements warrants dismissal of the claim. CPLR 3211(a)(7).
Further, “[v]ague and conclusory allegations are insufficient to sustain a breach of contract cause
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of action.” Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dept. 2007) (affirming dismissal of vague
and unspecific breach of contract claim). Here, Delever fails to plead the existence of any contract
between the parties, or that OneTaste breached any such agreement. Accordingly, this claim must
be dismissed.
A. No Contract Has Been Alleged
As to the first element – the existence of an enforceable contract – Delever has not alleged
any contract between the parties. Indeed, neither the words “contract” nor “agreement” appear
in the factual recitation of the Amended Complaint, and, in fact, the word “contract” appears only
in the caption of this cause of action. We respectfully submit that Delever’s failure to allege that
the parties entered into an agreement sounds the death knell for her breach of contract claim.
Indeed, at most, the Amended Complaint alleges that a teacher-student relationship existed
from time-to-time between the parties, but it does not set forth any agreement between them
concerning any particular classes. This is the sin qua non of a breach of contract claim. Without
allegations of an actual agreement and the essential terms thereof, no breach of contract claim can
be sustained. Matter of Sud v. Sud, 211 A.D.2d 423, 424 (1st Dept. 1995) (affirming dismissal of
contract claim based on vague, indefinite claims, without “the essential terms of the parties’
purported contract, including the specific provisions of the contract upon which liability is
predicated, whether the alleged agreement was in fact, written or oral…”) (internal citations
omitted); see also McCabe v. Consulate General of Canada, – N.Y.S.3d – , 2019 WL 1064104,
*1 (1st Dept. 2019) (affirming dismissal of contract claim where plaintiff “failed to allege sufficient
facts to identify an enforceable contract and breach of its terms”); Austin v. Gould, 137 A.D.3d
495, 495-496 (1st Dept. 2016) (affirming dismissal for “failure to identify the specific agreements
allegedly breached”); RK Solutions, LLC v. George Westinghouse Info. Tech. High Sch., 116
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A.D.3d 445, 445 (1st Dept. 2014) (affirming summary judgment where plaintiff did not present a
signed contract between the parties which reflected the terms allegedly breached); Caniglia v.
Chicago Tribune-N.Y. News Syndicate, Inc., 204 A.D.2d 233, 234 (1st Dept. 1994) (affirming
dismissal of a breach contract claim without leave to replead where complaint failed to allege the
contract provisions purportedly breached, and other relevant terms); McEntee v. Van Cleef &
Arpels, 166 A.D.2d 359, 360 (1st Dept. 1990) (affirming dismissal where “plaintiff failed to allege
the existence of any contract entitling him to such unearned commissions nor the precise terms
thereof”).
Here, the Amended Complaint makes no reference whatsoever to the existence of a verbal
or written agreement, or the critical requirements of a contract, i.e.,assent to specific terms
regarding a specified subject matter. In fact, the Amended Complaint does not identify a single
class by name, or the terms allegedly agreed to pertaining to each class such as the date, the time,
the teacher, the length of course, the subject matter of the course, the fee for the course, or even
that Delever enrolled in that course. Simply put, having failed to identify any agreement between
the parties, this breach of contract claim cannot survive the present motion to dismiss.
B. No Breach by OneTaste Has Been Alleged
Even assuming arguendo that the Amended Complaint somehow alleges that OneTaste
agreed in some unspecified form at some unspecified time to provide some unidentified course(s)
in exchange for some unspecified payment(s), the breach of contract claim should still be
dismissed because Delever does not (and cannot) allege any breach by OneTaste.
It is axiomatic that a breach of contract claim must identify the portion of the contract that
was breached. Kraus v. Visa Int’l. Serv. Ass’n, 304 A.D.2d 408, 408 (1st Dept. 2003) (affirming
dismissal “since plaintiff failed to allege the breach of any particular contractual provision”); see
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also Reznick v. Bluegreen Resorts Mgmt., Inc., 154 A.D.3d 891, 893 (2nd Dept. 2017)(“to state a
cause of action to recover damages for breach of contract, the plaintiff’s allegations must identify
the provisions of the contract that were breached”) (citation omitted); Patmos Fifth Real Estate
Inc. v. Mazl Bldg. LLC, 2013 WL 3942115, *8 (Sup. Ct., N.Y. Cnty., July 29, 2013) (Jaffe, J.)
(dismissing claim where plaintiff did not set out the alleged contract terms purportedly breached
by the defendant); Villacorta v. Saks Inc., 2011 WL 2535058, *9 (Sup. Ct., N.Y. Cnty. May 6,
2011) (recognizing that “a complaint alleging breach of contract must set forth the terms of the
agreement upon which liability is predicated by making specific reference to the relevant portions
of the contract, or by attaching a copy of the contract to the complaint”).
Here, as the Amended Complaint fails entirely to recite the alleged terms of any agreement
between the parties itdoes not identify any specific agreed-upon term that OneTaste breached.
Thus, even assuming that some unspecified contract between the party can be inferred from the
Amended Complaint, and the Court considers Delever’s vague allegation that some changes were
made in the delivery of some unidentified courses at some unspecified time, Am. Cplt., p. 3
(Breach of Contract), ¶ 3, that alleged conduct cannot state a breach of contract claim because
Delever has not alleged that any specific agreement was formed with respect to a particular class
or as to any specific aspect of the class such as the subject, the time or length, instructor or location.
Accordingly, having failed to identify the terms of any alleged agreement, itis axiomatic that
Delever has not pleaded the breach of any such terms. For this additional reason, this claim should
be dismissed pursuant to CPLR 3211(a)(7).
8
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III. Plaintiff’s Second Count For Fraud Must Be Dismissed
Count Two – asserting a claim for fraud – should be dismissed because (a) it fails to state
a claim and fails to plead with the particularity required by CPLR 3016(b), and (b) it is entirely
duplicative of the breach of contract claim.
A. The Fraud Claim Fails to State a Cause of Action
To state a claim for fraud a plaintiff must identify “a misrepresentation or a material
omission of fact which was false and known to be false by defendant, made for the purpose of
inducing the other party to rely upon it, justifiable reliance of the other party on the
misrepresentation or material omission, and injury.” Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137, 142 (2017) (quoting Lama Holding Co. v. Smith Barney, 89 N.Y.2d 413 (1996));
Patmos Fifth Real Estate Inc., 2013 WL 3942115 at *6 (Jaffe, J.) (dismissing fraud claim where
“the complaint contains no allegation that defendants knowingly misrepresented a material fact on
which plaintiffs detrimentally relied,” particularly where allegation of “representations” did not
aver their subject matter or defendants’ knowledge of falsity). Here, Delever has not pleaded any
of these elements, and utterly fails to allege a fraud with the specificity required by section 3016(b).
Section 3016(b) requires that a cause of action for fraud be pleaded with particularity and
“the circumstances constituting the wrong shall be stated in detail.” CPLR § 3016(b). A fraud
claim has been pleaded sufficiently, when a complaint states
Preview
FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 Motion Sequence #2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X TAMMY DELEVER, Plaintiff, Index No. 161172/2018 vs. ONE TASTE, INC., Defendant. --------------------------------------------------------------------X ONETASTE, INC.’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT 1 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................. 1 RELEVANT FACTS AND PROCEDURAL HISTORY ............................................................ 1 A. The Parties .................................................................................................................. 1 B. Procedural History ...................................................................................................... 2 C. The Amended Complaint ............................................................................................ 3 ARGUMENT ................................................................................................................................ 4 I. Standard on a Motion to Dismiss ...................................................................................... 5 II. Plaintiff’s Claim for Breach of Contract Fails to State a Claim ...................................... .5 A. No Contract Has Been Alleged ................................................................................... 6 B. No Breach by One Taste Has Been Alleged ............................................................... 7 III. Plaintiff’s Second Count for Fraud Must be Dismissed ................................................... 9 A. The Fraud Claim Fails to State a Cause of Action...................................................... 9 B. Plaintiff’s Fraud Claim is Duplicative of the Contract Claim .................................... 11 IV. Counts Three, Four and Five Must be Dismissed Because They are Time-Barred .......... 13 A. Count Three is Time-Barred ....................................................................................... 13 B. Count Four is Time-Barred ......................................................................................... 14 C. Count Five is Time-Barred ......................................................................................... 14 V. The Claim for Sexual Harassment Must be Dismissed for Failure to State a Claim Upon Which Relief May be Granted ..................................................................... 15 VI. The Claim for Intentional Infliction of Emotional Distress Should be Dismissed Because it Fails to State a Claim Upon Which Relief Can be Granted ............................ 17 VII. The Claim for Negligent Infliction of Emotional Distress Should be Dismissed Because it Fails to State a Claim Upon Which Relief Can be Granted ............................ 19 VIII. Plaintiff’s Demands for Punitive Damages Must be Dismissed ....................................... 21 CONCLUSION…………………………………………………………………………………..22 i 2 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 TABLE OF AUTHORITIES Page(s) Cases Allen v. Rafi, 2010 WL 1640131 (Sup. Ct., N.Y. Cnty., Apr. 8, 2010) ........................................ 15 Anderson v. Abodeen, 29 A.D.3d 431 (1st Dept. 2006) ................................................................ 18 Austin v. Gould, 137 A.D.3d 495 (1st Dept. 2016).......................................................................... 6 Barnes v. Hodge, 118 A.D.3d 633 (1st Dept. 2014) ........................................................................ 5 Bellissimo v. Mitchell, 122 A.D.3d 560 (2nd Dept. 2014) ............................................................. 14 Borkowski v. Borkowski, 39 N.Y.2d 982 (1976)........................................................................... 22 Borrerro v. Haks Group, Inc., 165 A.D.3d 1216 (2nd Dept. 2018) ............................................... 20 Bridges v. Wagner, 80 A.D.3d 528 (1st Dept. 2011) ..................................................................... 14 Brown v. Wolf Group Integrated Communications, Ltd., 23 A.D.3d 239 (1st Dept. 2005) ................................................................................................ 10 Caniglia v. Chicago Tribune-N.Y. News Syndicate, Inc., 204 A.D.2d 233 (1st Dept. 1994) ................................................................................................ 7 Capellupo v. Nassau Health Care Corp., 97 A.D.3d 619, 623 (2nd Dept. 2012)........................................................................................ 17 Carbures Europe, S.A. v. Emerging Mkt. Intrinsic Cayman Ltd., 148 A.D.3d 421 (1st Dept. 2017) .............................................................................................. 12 Chanko v. American Broadcasting Companies Inc., 27 N.Y.3d 46 (2016) ............................................................................................................ 17,18 Cheslowitz v. Bd. Of Tr. of the Knox Sch., 2015 WL 1912296 (Sup. Ct., Suffolk Cnty. Apr. 14, 2015)..................................................... 10 CIBC Bank & Trust Co. v. Credit Lyonnais, 270 A.D.2d 138 (1st Dept. 2000) ................................................................................................ 5 CIFG Assur. North America, Inc. v. J.P. Morgan Securities. LLC, 146 A.D.3d 60 (1st Dept. 2016) ................................................................................................ 10 Clayton v. Best Buy Co., 48 A.D.3d 277 (1st Dept. 2008) ................................................................................................ 18 Coast to Coast Energy, Inc., v. Gasarch, 149 A.D.3d 485 (1st Dept. 2017) .............................................................................................. 22 Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 (2017) ................................................................................................................. 9 Cronos Group Ltd. v. XComIP, LLC, 156 A.D.3d 54 (1st Dept. 2017) ............................................................................................. 9,11 Daluise v. Sottile, 40 A.D.3d 801 (2nd Dept. 2007) ...................................................................... 20 ii 3 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 Ferreyr v. Soros, 116 A.D.3d 407 (1st Dept. 2014) ................................................................. 19,20 Gattegno v. The Tr. of Columbia Univ. in the City of N.Y., 2012 WL 123562 (Sup. Ct., N.Y. Cnty., Jan. 9, 2012) ............................................................. 15 Gedula 26, LLC v. Lightstone Acquisitions III LLC, 150 A.D.3d 583 (1st Dept. 2017) .............................................................................................. 12 Godfrey v. Spano, 13 N.Y.3d 358 (2009) ....................................................................................... 5 Goldstein v. Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821 (2nd Dept. 2006)................................................................................................ 14 Gregor v. Rossi, 120 A.D.3d 447 (1st Dept. 2014) ......................................................................... 9 Harris v. Seward Park Hous. Corp., 79 A.D.3d 425 (1st Dept. 2010) .................................................................................................. 5 Havell Capital Enhanced Mun. Income Fund, L.P. v. Citibank, N.A., 84 A.D.3d 588 (1st Dept. 2011) ................................................................................................ 11 Herrington v. Metro-North Commuter R.R. Co., 118 A.D.3d 544 (1st Dept. 2014) .............................................................................................. 14 Hirsch v. Stellar Mgmt., 148 A.D.3d 588 (1st Dept. 2017) ........................................................... 10 Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D.3d 457 (1st Dept. 2011) ........................................................................................... 22,23 Horwitz v. Loop Capital Markets LLC, 2016 WL 7117206 (Sup. Ct., N.Y. Cnty., Dec. 5, 2016).......................................................... 12 Howell v. New York Post Co., 81 N.Y.2d 115 (1993) ............................................................. 17,18 ID Beauty S.A.S. v. Coty Inc. Headquarters, 164 A.D.3d 1186 (1st Dept. 2018) ............................................................................................ 12 Jae Hee Chung v. Mary Manning Walsh Nursing Home Co., Inc., 147 A.D.3d 452 (1st Dept. 2017) .............................................................................................. 13 Kennedy v. McKesson Co., 58 N.Y.2d 500 (1983) ....................................................................... 19 Khalil v. State, 847 N.Y.S.2d 390 (Sup. Ct. N.Y. Cnty. 2007) .................................................... 13 Kraus v. Visa Int’l. Serv. Ass’n, 304 A.D.2d 408 (1st Dept. 2003) ................................................................................................ 7 Lama Holding Co. v. Smith Barney, 89 N.Y.2d 413 (1996) ................................................................................................................. 9 Lifecare v. Ast, 2015 WL 4400215 (Sup. Ct., N.Y. Cnty., July 17, 2015) ........................................................ 12 Longo v. Armor Elevator Co., Inc., 307 A.D.2d 848 (1st Dept. 2003) ......................................... 22 Marino v. Vunk, 39 A.D.3d 339 (1st Dept. 2007)............................................................................ 6 Matter of Sud v. Sud, 211 A.D.2d 423 (1st Dept. 1995) .................................................................. 6 iii 4 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 McCabe v. Consulate General of Canada, – N.Y.S.3d – , 2019 WL 1064104 (1st Dept. 2019) .................................................................... 6 McEntee v. Van Cleef & Arpels, 166 A.D.2d 359 (1st Dept. 1990) ................................................................................................ 7 McRedmond v. Sutton Place Restaurant and Bar, Inc., 48 A.D.3d 258 (1st Dept. 2008) ................................................................................................ 18 Mejia v. T.N. 888 Eighth Ave. LLC Co., -- N.Y.S.3d --, 2019 WL 960020 (1st Dept. 2019) .................................................................... 13 Mountain Creek Acquisition LLC v. Intrawest U.S. Holdings, Inc., 96 A.D.3d 633 (1st Dept. 2012) ................................................................................................ 22 Murphy v. American Home Prods. Corp., 58 N.Y.2d 293 (1983) ............................................................................................................... 18 New York Univ. v. Continental Inc. Co., 87 N.Y.2d 308 (1995) ............................................................................................................... 11 Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1 (2008) ................................................................................................................... 19 Patmos Fifth Real Estate Inc. v. Mazl Bldg. LLC, 2013 WL 3942115 (Sup. Ct., N.Y. Cnty., July 29, 2013) ....................................................... 8,9 Pludeman v. Northern Leasing Systems, Inc., 10 N.Y.3d 486 (2008) ................................................................................................................. 9 Princes Point, LLC v. AKRF Engineering, P.C., 94 A.D.3d 588 (1st Dept. 2012) ........................................................................................... 22-23 Print & More Assoc., Inc. v. Stenzler, 2013 WL 3723199 (Sup. Ct., N.Y. Cnty., July 8, 2013) .......................................................... 12 Reznick v. Bluegreen Resorts Mgmt., Inc., 154 A.D.3d 891 (2nd Dept. 2017)................................................................................................ 8 RK Solutions, LLC v. George Westinghouse Info. Tech. High Sch., 116 A.D.3d 445 (1st Dept. 2014) ................................................................................................ 6 Ross v. Louise Wise Serv., Inc., 8 N.Y.3d 478 (2007) .................................................................. 22 Rothman v. RNK Capital, LLC, 2015 WL 5096024 (Sup. Ct., N.Y. Cnty., Aug. 26, 2015) ....................................................... 21 Santiago-Mendez v. City of New York, 136 A.D.3d 428 (1st Dept. 2016) .............................................................................................. 14 Schultes v. Kane, 50 A.D.3d 1277 (3rd Dept. 2008)...................................................................... 14 Sheila C. v. Povich, 11 A.D.3d 120 (1st Dept. 2004) .................................................................... 17 Springut Law PC v. Rates Tech. Inc., 157 A.D.3d 645 (1st Dept. 2018) .............................................................................................. 12 Stauber v. New York City Tr. Auth., 10 A.D.3d 280 (1st Dept. 2004)........................................... 18 iv 5 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 Suarez v. Bakalchuk, 66 A.D.3d 419 (1st Dept. 2009) .................................................................. 18 Suri v. Grey Global Group, Inc., 164 A.D.3d 108, 83 N.Y.S.2d 9 (1st Dept. 2018) ..................................................................... 16 Villacorta v. Saks Inc., 2011 WL 2535058 (Sup. Ct., N.Y. Cnty. May 6, 2011) ............................................................. 8 Taggart v. Costabile, 131 A.D.3d 243 (2nd Dept. 2015).......................................................... 17,18 Walker v. Sheldon, 10 N.Y.2d 401 (1961) .................................................................................... 22 Williams v. New York City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dept. 2009) ..................................................................... 16 Statutes CPLR 214(2) ................................................................................................................................. 14 CPLR 214(5) ................................................................................................................................. 15 CPLR 215(3) ................................................................................................................................. 14 CPLR 3211(a)(5) ................................................................................................................... Passim CPLR 3211(a)(7) ................................................................................................................... Passim CPLR 3016(b) ........................................................................................................................ Passim N.Y. Administrative Code § 8-502(d) .......................................................................................... 14 N.Y. Administrative Code § 8-107(1)(a) ...................................................................................... 16 N.Y. EXEC § 296(1)(a) ................................................................................................................ 16 N.Y. Jur. 2d Limitations and Laches § 215 (2019) ....................................................................... 15 42 U.S.C. 2000e-2(a) .................................................................................................................... 16 v 6 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 PRELIMINARY STATEMENT Defendant OneTaste Inc. (“OneTaste”) respectfully moves to dismiss the Amended Complaint pursuant to CPLR 3211(a)(5) and (a)(7) and CPLR 3016 (b). Plaintiff, Tammy Delever (“Delever”), a former student of OneTaste, has filed a five-count Amended Complaint purporting to allege a host of misconduct by OneTaste. That Amended Complaint, however, fails to state a single cause of action that can survive this motion. Indeed, the Amended Complaint amounts to nothing more than a litany of vague and disparate facts – pled by way of the “kitchen sink” method – searching for a cause of action it cannot find. For example, after detailing what Delever hopes are salacious facts that “hook” the Court’s interest, she purports to allege a “breach of contract” claim without ever identifying a single contract or agreement between the parties, let alone the terms thereof, or any breach by OneTaste. Similarly, she tries to allege a “fraud” claim without alleging a single misrepresentation made by OneTaste, or any of the other elements which must be pleaded with particularity under CPLR 3016(b). Likewise, she alleges far-flung claims of sexual harassment, intentional infliction of emotional distress and negligent infliction of emotional distress, each of which are clearly time- barred, and each of which fails to allege conduct that would suffice to plead such claims. Finally, Delever seeks $2 million in punitive damages in connection with her meritless fraud and negligent infliction of emotional distress claims, without alleging any facts that would come close to meeting the high standard for such damages. At bottom, this is nothing more than a nuisance lawsuit where Delever has tried four times to allege viable claims against OneTaste and has still come up short. RELEVANT FACTS AND PROCEDURAL HISTORY A. The Parties As alleged in the Amended Complaint, Delever participated as a student in the OneTaste program from approximately February 2013 to 2014. Amended Complaint ¶¶ 2. Defendant 1 7 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 OneTaste, Inc. is a woman-owned global lifestyle brand focused on increasing health, happiness and connection through proven methods combining mindfulness and sexuality. One of these methods is a meditative practice known as Orgasmic Meditation. (“OM”). See Institute of OM, (March 8, 2018), https://instituteofom.com. OM is a scientifically based partnered and structured meditation practice. OM is not practiced for sexual gratification, nor is it practiced for any purpose other than to develop an individual’s personal wellbeing by improving connections between mind and body. The practice of OM is being scientifically studied by, among other recognized academic centers, the University of Pittsburgh.1 B. Procedural History On November 29, 2018, unbeknownst to OneTaste, Delever filed under seal a Summons and Verified Complaint. Docket No. 1; Affirmation of Marjorie Berman (“Berman Aff.”) ¶ 3. This first Complaint, however, was not served on OneTaste, and was unknown to OneTaste until recently. Berman Aff. ¶ 4. Rather, OneTaste was served with a sealed Order to Show Cause, which attached to it a different Complaint entitled “Verified Complaint.” Docket No. 5; Berman Aff. ¶ 5. That five count, sealed, pseudonymous Verified Complaint alleged violations of various labor laws. Berman Aff., ¶ 5-6, Exh. A. The parties stipulated to an adjournment of a responsive pleading until after the Court rendered a decision on Delever’s application to proceed by pseudonym. Berman Aff. ¶ 7. That pseudonym application was denied by Order dated January 14, 2019. Berman Aff., ¶8. Following that decision, counsel for the parties agreed that the labor-based Complaint (which had been served on OneTaste attached to the Order to Show Cause) should be amended 1 See Affidavit of Anjuli Ayers, OneTaste CEO, in support of OneTaste’s Opposition to Delever’s motion to proceed by pseudonym. Docket No. 10. 2 8 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 because, in fact, Delever had never been employed by OneTaste. Berman Aff. ¶ 9. On February 26, 2019, Delever filed an Amended Complaint which alleged virtually identical facts but asserted revised causes of action. Docket No. 12; Berman Aff., Exh. B. That document, however, did not contain a prayer for relief. Id. Delever then filed yet another Amended Complaint, which is identical to the previously Amended Complaint but included a new section entitled “Prayer for Relief.” Berman Aff., Exh. C (“Am. Cplt” or “Amended Complaint”). The Amended Complaint asserts claims for (1) Breach of Contract; (2) Fraud; (3) Sexual Harassment; (4) Intentional Infliction of Emotional Distress and (5) Negligent Infliction of Emotional Distress. Am. Cplt., pp. 3-4. C. The Amended Complaint2 Delever alleges that in June 2013 (more than five years before she filed the instant Complaint), she voluntarily moved to New York to participate in a OneTaste “Coaching Program.” Am. Cplt., ¶¶ 2, 3. Once in New York, she lived in communal housing with other members of the OneTaste community. Id. ¶ 4. The Amended Complaint, while quite disjointed, complains about OneTaste’s alleged conduct in three distinct settings. The first setting relates to Delever as a student in OneTaste courses. Delever claims without detail that she took courses with OneTaste, but that OneTaste modified the terms of classes by, for example, changing the time they were taught or the teachers who taught the classes. Am. Cplt., p.3 (Breach of Contract) ¶ 3. Delever further complains about the style of teaching and the techniques that were taught in the courses, claiming she was berated about her sexual behavior, encouraged to participate in certain sexual practices, and humiliated in front of other students. Id. ¶¶ 10, 11, 2 OneTaste does not admit any of the allegations set forth in the Amended Complaint, but merely recites those allegations and assumes them to be true for purposes of this motion only, consistent with the standard applicable under CPLR 3211. 3 9 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 22, 23. Although Delever provides no specific allegations, she suggests that a portion of her payment to OneTaste included OneTaste making unauthorized withdrawals and charges on her credit card, and that OneTaste employees accompanied her to make withdrawals from her bank. Id. ¶¶ 20, 21. However, Delever does not assert any claim with respect to those credit card charges or bank withdrawals, nor does she allege that the payments were not owed to OneTaste. The second setting relates to conduct Delever purportedly witnessed or participated in while living in communal housing. She alleges that she had to (a) share her bed with male staff members and other men who requested sex from her, id. ¶¶ 4, 18, (b) participate in the practice of OM, id. ¶18, and (c) watch OneTaste members have sex in her sleeping area. Id. ¶ 9. She claims as well that she was coerced into a sex practice where she was “supposed” to have sex with a different man each night for 10 days, although she does not state that she engaged in the practice. Id. ¶ 11. The third setting relates to assistance Delever allegedly provided to OneTaste. She alleges that she was forced to (1) volunteer at OneTaste courses and activities, (2) educate the public about OM, and (3) solicit members of the public to enroll in OneTaste courses. Id. ¶¶ 17, 19. Notably, however, Delever does not assert any claim relating to these allegations. Id., pp. 3-4 (no legal claim asserted referring to these allegations). Delever claims that as a result of OneTaste’s alleged conduct, she has suffered emotional distress for which she has sought therapy. Id. ¶¶ 14, 27-30. Delever seeks a refund of the fees she allegedly paid to OneTaste ($55,000), $220,000 in compensatory damages, $300,000 for her alleged emotional distress, $50,000 in unspecified “consequential damages,” and $3 million in punitive damages. Id at p. 5. ARGUMENT The Amended Complaint fails utterly to present a single timely claim which can withstand review by this Court under CPLR 3211, or as applicable, CPLR 3016(b). At bottom, each and 4 10 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 every one of these claims fails to state a claim upon which relief may be granted, and three of the claims are clearly time-barred. Specifically, Counts One and Two – Breach of Contract and Fraud – fail to state a claim, and thus should be dismissed pursuant to CPLR 3211(a)(7). Count Two should also be dismissed because it fails to plead fraud with the particularity required by CPLR 3016(b), and because it is duplicative of the Breach of Contract claim. Counts Three, Four and Five – Sexual Harassment, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress– must be dismissed as each is time-barred. Moreover, even if this Court were to review the substance of these three claims, they could not survive this motion to dismiss because they fail to state a claim. Each of these bases for dismissal is discussed below. I. Standards on a Motion to Dismiss The standard on a motion to dismiss is familiar to the Court. While the well-pleaded facts alleged in a complaint must be accepted as true and the proponent must be afforded every favorable inference, “allegations consisting of bare legal conclusions…are not entitled to such consideration.” CIBC Bank & Trust Co. v. Credit Lyonnais, 270 A.D.2d 138, 138 (1st Dept. 2000); see also Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009) (same and affirming dismissal of claim that lacked factual specificity); Barnes v. Hodge, 118 A.D.3d 633, 633-634 (1st Dept. 2014) (same). II. Plaintiff’s Claim for Breach of Contract Fails to State a Claim It is black-letter law that to state a claim for breach of contract, a party must allege each of the following: (1) the existence of a contract, (2) performance by plaintiff, (3) breach by defendant, and (4) damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dept. 2010). Failure to allege one or more of these elements warrants dismissal of the claim. CPLR 3211(a)(7). Further, “[v]ague and conclusory allegations are insufficient to sustain a breach of contract cause 5 11 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 of action.” Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dept. 2007) (affirming dismissal of vague and unspecific breach of contract claim). Here, Delever fails to plead the existence of any contract between the parties, or that OneTaste breached any such agreement. Accordingly, this claim must be dismissed. A. No Contract Has Been Alleged As to the first element – the existence of an enforceable contract – Delever has not alleged any contract between the parties. Indeed, neither the words “contract” nor “agreement” appear in the factual recitation of the Amended Complaint, and, in fact, the word “contract” appears only in the caption of this cause of action. We respectfully submit that Delever’s failure to allege that the parties entered into an agreement sounds the death knell for her breach of contract claim. Indeed, at most, the Amended Complaint alleges that a teacher-student relationship existed from time-to-time between the parties, but it does not set forth any agreement between them concerning any particular classes. This is the sin qua non of a breach of contract claim. Without allegations of an actual agreement and the essential terms thereof, no breach of contract claim can be sustained. Matter of Sud v. Sud, 211 A.D.2d 423, 424 (1st Dept. 1995) (affirming dismissal of contract claim based on vague, indefinite claims, without “the essential terms of the parties’ purported contract, including the specific provisions of the contract upon which liability is predicated, whether the alleged agreement was in fact, written or oral…”) (internal citations omitted); see also McCabe v. Consulate General of Canada, – N.Y.S.3d – , 2019 WL 1064104, *1 (1st Dept. 2019) (affirming dismissal of contract claim where plaintiff “failed to allege sufficient facts to identify an enforceable contract and breach of its terms”); Austin v. Gould, 137 A.D.3d 495, 495-496 (1st Dept. 2016) (affirming dismissal for “failure to identify the specific agreements allegedly breached”); RK Solutions, LLC v. George Westinghouse Info. Tech. High Sch., 116 6 12 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 A.D.3d 445, 445 (1st Dept. 2014) (affirming summary judgment where plaintiff did not present a signed contract between the parties which reflected the terms allegedly breached); Caniglia v. Chicago Tribune-N.Y. News Syndicate, Inc., 204 A.D.2d 233, 234 (1st Dept. 1994) (affirming dismissal of a breach contract claim without leave to replead where complaint failed to allege the contract provisions purportedly breached, and other relevant terms); McEntee v. Van Cleef & Arpels, 166 A.D.2d 359, 360 (1st Dept. 1990) (affirming dismissal where “plaintiff failed to allege the existence of any contract entitling him to such unearned commissions nor the precise terms thereof”). Here, the Amended Complaint makes no reference whatsoever to the existence of a verbal or written agreement, or the critical requirements of a contract, i.e.,assent to specific terms regarding a specified subject matter. In fact, the Amended Complaint does not identify a single class by name, or the terms allegedly agreed to pertaining to each class such as the date, the time, the teacher, the length of course, the subject matter of the course, the fee for the course, or even that Delever enrolled in that course. Simply put, having failed to identify any agreement between the parties, this breach of contract claim cannot survive the present motion to dismiss. B. No Breach by OneTaste Has Been Alleged Even assuming arguendo that the Amended Complaint somehow alleges that OneTaste agreed in some unspecified form at some unspecified time to provide some unidentified course(s) in exchange for some unspecified payment(s), the breach of contract claim should still be dismissed because Delever does not (and cannot) allege any breach by OneTaste. It is axiomatic that a breach of contract claim must identify the portion of the contract that was breached. Kraus v. Visa Int’l. Serv. Ass’n, 304 A.D.2d 408, 408 (1st Dept. 2003) (affirming dismissal “since plaintiff failed to allege the breach of any particular contractual provision”); see 7 13 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 also Reznick v. Bluegreen Resorts Mgmt., Inc., 154 A.D.3d 891, 893 (2nd Dept. 2017)(“to state a cause of action to recover damages for breach of contract, the plaintiff’s allegations must identify the provisions of the contract that were breached”) (citation omitted); Patmos Fifth Real Estate Inc. v. Mazl Bldg. LLC, 2013 WL 3942115, *8 (Sup. Ct., N.Y. Cnty., July 29, 2013) (Jaffe, J.) (dismissing claim where plaintiff did not set out the alleged contract terms purportedly breached by the defendant); Villacorta v. Saks Inc., 2011 WL 2535058, *9 (Sup. Ct., N.Y. Cnty. May 6, 2011) (recognizing that “a complaint alleging breach of contract must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract, or by attaching a copy of the contract to the complaint”). Here, as the Amended Complaint fails entirely to recite the alleged terms of any agreement between the parties itdoes not identify any specific agreed-upon term that OneTaste breached. Thus, even assuming that some unspecified contract between the party can be inferred from the Amended Complaint, and the Court considers Delever’s vague allegation that some changes were made in the delivery of some unidentified courses at some unspecified time, Am. Cplt., p. 3 (Breach of Contract), ¶ 3, that alleged conduct cannot state a breach of contract claim because Delever has not alleged that any specific agreement was formed with respect to a particular class or as to any specific aspect of the class such as the subject, the time or length, instructor or location. Accordingly, having failed to identify the terms of any alleged agreement, itis axiomatic that Delever has not pleaded the breach of any such terms. For this additional reason, this claim should be dismissed pursuant to CPLR 3211(a)(7). 8 14 of 30 FILED: NEW YORK COUNTY CLERK 03/13/2019 11:18 PM INDEX NO. 161172/2018 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/13/2019 III. Plaintiff’s Second Count For Fraud Must Be Dismissed Count Two – asserting a claim for fraud – should be dismissed because (a) it fails to state a claim and fails to plead with the particularity required by CPLR 3016(b), and (b) it is entirely duplicative of the breach of contract claim. A. The Fraud Claim Fails to State a Cause of Action To state a claim for fraud a plaintiff must identify “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017) (quoting Lama Holding Co. v. Smith Barney, 89 N.Y.2d 413 (1996)); Patmos Fifth Real Estate Inc., 2013 WL 3942115 at *6 (Jaffe, J.) (dismissing fraud claim where “the complaint contains no allegation that defendants knowingly misrepresented a material fact on which plaintiffs detrimentally relied,” particularly where allegation of “representations” did not aver their subject matter or defendants’ knowledge of falsity). Here, Delever has not pleaded any of these elements, and utterly fails to allege a fraud with the specificity required by section 3016(b). Section 3016(b) requires that a cause of action for fraud be pleaded with particularity and “the circumstances constituting the wrong shall be stated in detail.” CPLR § 3016(b). A fraud claim has been pleaded sufficiently, when a complaint states