PLAINTIFF STATED A CAUSE OF ACTION FOR “GENDER-BIASED VERBAL ASSAULT, BATTERY AND HARASSMENT, CIVIL RIGHTS LAW 79-N” AGAINST HER FORMER ATTORNEY; THE THREE-YEAR STATUTE OF LIMITATIONS PURSUANT TO CPLR 214(2) APPLIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark addressing several issues not summarized here, determined the complaint stated a cause of action for “gender-biased verbal assault, battery and harassment, Civil Rights Law 79-n” and the three-year statute of limitations applied to that cause of action. The lawsuit was brought by a former client against her former attorney, Benjamin:

In her third cause of action, labeled “Gender-Biased Verbal Assault, Battery and Harassment, Civil Rights Law § 79-n,” plaintiff alleges that Benjamin repeatedly subjected her to “cruel, unprovoked and unjustified verbal abuse, assault, battery and harassment,” that such conduct was “motivated, at least in part, by” Benjamin’s bias toward women, that Benjamin “regularly and consistently conducts himself in the same or similar manner toward” women and that plaintiff has suffered, among other things, physical harm as a result of Benjamin’s bias-related conduct. Although plaintiff does not specifically detail Benjamin’s bias-related conduct within the third cause of action, the facts alleged earlier in the complaint, which are incorporated by reference under the third cause of action, are replete with allegations that Benjamin forcibly subjected plaintiff to nonconsensual sexual contact, including one occasion when Benjamin forced plaintiff to perform oral sex on him and at least two occasions when he forcibly touched plaintiff’s genitals. In our view, the allegations of forcible, nonconsensual contact, together with plaintiff’s allegation that such conduct was motivated by Benjamin’s gender bias, could, if proven, demonstrate the bias-related violence or intimidation required to recover under Civil Rights Law § 79-n … . * * *

… [A]lthough plaintiff’s third cause of action is akin to common-law assault and battery claims, plaintiff’s claim of bias-related violence or intimidation would not exist but for Civil Rights Law § 79-n (2). To recover under common-law assault and battery causes of action, plaintiff would simply need to prove that defendants intentionally placed her “in apprehension of imminent harmful or offensive contact” and “intentionally engage[d] in offensive bodily contact without [her] consent” … . In contrast, to recover for Benjamin’s alleged forcible, nonconsensual sexual contact under Civil Rights Law § 79-n (2), plaintiff has to demonstrate that Benjamin intentionally selected her for harm or intentionally caused her physical injury in whole or in substantial part because of a belief or perception regarding her gender and that there was “actual or imminent physical harm” as a result of the gender bias-related violence or intimidation … . Given the substantive differences between claims asserted under Civil Rights Law § 79-n and common-law assault and battery claims, we are convinced that Civil Rights Law § 79-n (2) creates liability that would not exist but for the statute and that therefore the three-year statute of limitations period in CPLR 214 (2) applies to plaintiff’s third cause of action … . A.M.P. v Benjamin, 2021 NY Slip Op 06589, Third Dept 11-24-21