Opinion

Truman v. Brown

Court: District Court, S.D. New York
Filed: Jan 21, 2020
Cited by: 0 cases
Authority: More cited than 27.0%

larceny by trick and false pretenses charges, N.Y. Penal Law § 155.05(2)(a), not viable where evidence did not “rise to the level of even an implied threat”

How later courts described this case

larceny by trick and false pretenses charges, N.Y. Penal Law § 155.05(2)(a), not viable where evidence did not “rise to the level of even an implied threat”
dismissing IIED claim where defendant terminated plaintiff’s disability benefits and framing the case as a “true contract case[] recast in tort”
dismissing IIED claim where defendant forced usurious loan on plaintiffs, knowing that plaintiffs “were distressed”
affirming denial of leave to amend on futility grounds where plaintiff provided “no clue as to how the complaint’s defects would be cured through an amendment” (internal quotation marks omitted)

Written by the judges who cited it.

The opinion

DOC UMENT

UNITED STATES DISTRICT COURT oa “ee

SOUTHERN DISTRICT OF NEW YORK oS

DATE FILED: 1/21/2020

JENNIFER TRUMAN,

Plaintiff, 19 Civ. 1546 (PAE)

~ OPINION & ORDER

PETER BROWN,

Defendant.

PAUL A. ENGELMAYER, District Judge:

This case involves a plaintiffs attempt to enforce an agreement to keep silent about an

extramarital affair in exchange for money. Plaintiff Jennifer Truman alleges that she and

defendant Peter Brown engaged in a decades-long affair, during which Truman had a child,

Samantha. Truman alleges that, years later, she told Samantha, now an adult, that Brown was

her father, and that Truman and Brown then engaged in discussions about Brown reimbursing

Truman for some of Samantha’s expenses. Truman alleges that the two reached an agreement,

under which Brown would give Truman money, and Truman would cease contact with Brown’s

family and not disclose her claim that Brown was Samantha’s father. After Brown failed to pay

the full amount demanded by Truman, Truman brought this action, in which she sues Brown for

breach of contract, intentional infliction of emotional distress, and negligent infliction of

emotional distress.

Brown now moves to dismiss. For the reasons that follow, the Court dismisses Truman’

complaint, with prejudice.

I. Background

A. Factual Background1

1. Truman and Brown’s Relationship

In 1985, Truman, then age 21, got a summer job working on Brown’s yacht in Fort

Lauderdale, Florida. See Compl. ¶¶ 12, 16. Truman owned a yacht-refinishing company and

had, through that work, gained boating expertise. Id. ¶ 15. Brown was a prominent businessman

who headed a sportswear-manufacturing company and was wealthy, as evidenced by his private

jet, cars, and boats. Id. ¶¶ 13–14. After Brown, who was in his late 30s, stopped by the yacht

and met Truman, he offered her a job as a full-time member of the yacht’s crew. Id. ¶¶ 12, 17–

18.

Shortly thereafter, Truman and Brown began to build a close relationship, in which

Truman confided in Brown about her childhood, including her family’s limited resources, the

abuse she suffered from her alcoholic mother, and her lack of a father figure. See id. ¶¶ 19–20.

Truman also told Brown that she suffered from low self-esteem and that she was vulnerable to

strong male influences. Id. ¶¶ 20–21. At some point, Brown attempted to turn the relationship

1 This account is drawn from Truman’s complaint, Dkt. 1 (“Compl.”), and its attached exhibits,

Dkts. 1-4–1-10. See DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (“In

considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district

court may consider the facts alleged in the complaint, documents attached to the complaint as

exhibits, and documents incorporated by reference in the complaint.”). These exhibits include a

September 17, 2018 letter from Truman to Brown, Dkt. 1-4 (“Sept. 17, 2018 Ltr.”); a series of

text messages between Truman and Brown, Dkt. 1-5 (“Text Chain”); a September 21, 2018 letter

from Truman to Brown, Dkt. 1-6 (“Sept. 21, 2018 Ltr.”); several transcripts of recorded phone

calls between Truman and Brown, Dkt. 1-7 (“Call Trs.”); an email chain between Truman and

Brown, Dkt. 1-8 (“Email Chain”); a demand letter from Truman’s counsel to Brown, Dkt. 1-9

(“Demand Ltr.”); and Brown’s counsel’s response to Truman’s demand letter, Dkt. 1-10

(“Demand Response”). For the purposes of resolving a motion to dismiss, the Court accepts all

factual allegations in the complaint as true, drawing all reasonable inferences in the plaintiff’s

favor. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

into a sexual one. Id. ¶ 22. Truman resisted at first, but later gave in, beginning a sexual

relationship that would last for decades. Id. She believed Brown cared for her and that the

relationship would allow her to keep her job. Id. ¶ 23. Truman and Brown engaged in sexual

acts on the yacht, in hotels, and in Brown’s car, sometimes when Brown’s wife and family were

nearby. Id. ¶ 24.

During Truman and Brown’s relationship, Truman dreamt of working in the fashion

industry. Id. ¶ 27. She turned down marriage proposals from another man, Jeff, to preserve her

opportunity to move to New York City to pursue that dream. Id. ¶ 26. Brown said that he would

help Truman, and gave her a job at Heather Hill Sportswear, a men’s and boys’ sportswear

company his family owned. Id. ¶¶ 13, 27–28. She prepared to move to New York and enrolled

in the Fashion Institute of Technology (“FIT”). Id. ¶ 29.

In late summer 1986, before Truman moved, she became ill. Id. ¶ 30. She decided to

move to New York anyway. See id. ¶ 32. Later, Truman discovered that she was pregnant. See

id. ¶¶ 31, 33–34. She was scared; she quit her job at Heather Hill, withdrew from FIT, agreed to

marry Jeff, and moved back to Florida. See id. ¶¶ 35–37. Brown knew about the pregnancy and

that he was the likely father. See id. ¶ 38.

In 1987, Truman gave birth to Samantha. Id. ¶ 39. In 1989, Truman and Jeff divorced,

and Jeff moved to California. Id. ¶ 40. Jeff did not provide assistance to Truman and Samantha,

although, after he died years later, Truman received some of his Social Security income.

Id. ¶¶ 40–41. Truman did not tell Samantha that Brown was her likely father. See id. ¶ 64.

After Jeff died, Brown asked Truman to come back and work on his yacht; Truman

accepted. Id. ¶ 42. Brown persuaded Truman to resume their sexual relationship; he would

often comment that he should help with Samantha, although he never did. Id. ¶¶ 43, 45. Truman

worked on the yacht every summer, and was often around Brown and his family. Id. ¶ 44.

After Brown’s son died, Brown and Truman spent much time together on the yacht,

because Brown’s son had loved the water. Id. ¶¶ 47–48. Brown’s wife thanked Truman for

taking Brown on boat rides, which she did not enjoy. Id. ¶ 48. Explaining the amount of time

Truman and Brown were together, Brown told others that he “cared for [Truman] as a daughter”

and that she was “part of his family.” Id. Brown insisted that Truman help him maintain the lie

that she was “like a daughter” to him. Id. ¶ 51. Truman felt that she was a member of Brown’s

family and was confused by the relationship. Id. ¶ 52. Brown led Truman to believe that if she

needed anything, he would be there for her. Id. ¶ 50.

In 1992, Truman’s grandmother died, and a part of her will required that Truman go back

to school. Id. ¶ 54. Truman moved back to New York City and planned to attend FIT. See id.

She also worked for Brown at Heather Hill, where she stayed until 1999. Id. ¶¶ 54–55.

In 2000, Truman worked on Brown’s yacht in East Hampton and later found work with a

shipping magazine. Id. ¶¶ 55–56. During this time, Brown and Truman continued their sexual

relationship. See id. Brown told Truman that he “should be helping her” and that “one day [her]

student loans [would] be gone.” Id. ¶ 57.

In 2001, Truman applied to law school and was accepted for the class entering in fall

2002. Id. ¶ 58. Brown remained in contact with Truman, but despite his promises to help her,

never did. See id. ¶¶ 58–59. Truman raised Samantha on her own, covering her expenses as a

child, including while Truman was in college and law school. See id. ¶¶ 60–61. Truman missed

out on various opportunities while raising Samantha as a single mother. See id. ¶ 61.

Truman and Brown’s sexual relationship continued until sometime before Truman’s

birthday in 2016. See id. ¶ 90. During those years, Truman alleges, Brown took advantage of

her weaknesses and insecurities to make her “his sexual possession” and “his sexual ‘play

thing.’” Id. ¶ 88. Brown alienated Truman from her own support system. Id. ¶ 89.

The day after Truman’s birthday in 2016, after Truman had begun to see man named

Ivan, Brown called Truman, joking that she needed to return some of his old jackets. Id. ¶ 90.

This prompted Ivan to ask questions about Truman’s relationship with Brown, including whether

Brown was Samantha’s father. Id.; see also Sept. 21, 2018 Ltr. at 1. In response, Truman lied to

him. Sept. 21, 2018 Ltr. at 1.

At some point, Truman needed a loan and sought help from Brown. See Compl. ¶ 91.

Brown put her into contact with a banker friend, but the banker refused to provide her a loan. Id.

Truman returned to Brown for help. Brown responded, “if you cannot get the money anywhere

else, you will have to pay me back with your body.” Id. Truman declined. Id.

2. Truman and Brown’s Agreement

On June 1, 2018, Samantha took a 23andMe DNA test. Id. ¶ 63. The results indicated

she was related to a relative of Brown’s. Id. On September 1, 2018, after Samantha had asked

questions, Truman admitted to Samantha that Brown was likely her father. Id. ¶ 64.

On September 17, 2018, Truman sent Brown a letter, informing him that Samantha knew

of his likely paternity. Id. ¶ 65; see Sept. 17, 2018 Ltr. Truman wrote: “Now that the truth is

out—don’t you think it is your turn to step and return the favor to me for all the pleasure/escape I

gave you in life.” Sept. 17, 2018 Ltr. at 1. She added: “You thought you could just use me as a

sex toy, no one would find out and there would never be consequences.” Id. She cited Brown’s

earlier statements that he would help pay for Truman’s student loans and leave her something in

his will. Id. She asked Brown to “make it right with both Samantha and myself, now, not when

you die.” Id.

The next day, Brown texted Truman, stating that he was not doing well, but was “eager to

help where and how I can.” Compl. ¶ 66; Text Chain at 2. After Brown asked what the balance

of Truman’s student loans was, Truman responded: “If you want to put a price on it, think about

how much it cost you to raise and educate [your daughter] Melissa, because Samantha is your

daughter just like Melissa.” Text Chain at 2–4. Brown responded that he would “deal with the

tuition and therapies.” Id. at 4.

The sum Truman sought was far less than Brown had paid toward his other children, for

whom he had paid for private schools, nice clothes, vacations, and higher education.

Compl. ¶¶ 67–68. Truman contrasts her motherhood with that of Brown’s wife, who had “an

easy time being a ‘mother,’” with nannies and maids to help her. Id. ¶ 68. Truman was

“enraged” that Brown had not provided similar support to her and Samantha. Id. ¶ 71. As result,

she wrote Brown a second letter, dated September 21, 2018; Truman texted Brown a picture of

that letter on September 20, 2018. Id. ¶ 72; see Sept. 21, 2018 Ltr.; Text Chain at 5. The letter

complained that Truman’s lies about her relationship with Brown had ruined her relationships

with Ivan, the man she had been seeing, and with Samantha. See Sept. 21, 2018 Ltr. at 1.

Truman wrote that both she and Samantha needed therapy as a result. See id. She then stated,

“[y]ou have millions, I wonder how much I am worth being a sex slave in the end . . . what is

[your wife] Nancy worth, I am at least worth half.” Id. Truman’s letter concluded: “This is the

last communication, I need to be free from this . . . I don’t know what to say you should do, just

find the right number for me. Please help Samantha. It is done now.” Id.

After Truman sent the two letters to Brown, they had two phone conversations.

Compl. ¶ 73; see also Text Chain at 6. They discussed what Truman had spent on Samantha

over the years and how much Brown should contribute. See Compl. ¶ 73. Truman stated, “we

had a long, long relationship. But I gave you lots of pleasure, seriously. And you always used to

tell me you were gonna help me, and I believed you. But every time, you never did anything.”

Call Trs. at 6. Brown agreed that this was his fault, and Truman responded: “Yes, yes. So now

you need to make up for it.” Id. She added: “I really think that in your mind, if you know that

you did wrong to me that you need to make it up to me. And I know you can come up with the

right number.” Id. When Brown asked what the “right number” was, Truman said, “a lot . . .

how much is Nancy worth? I’m worth at least half of that. How much is your daughter worth?”

Id. at 6–7.

In these phone conversations, Brown agreed to pay Truman $500,000 by October 4,

2018, on the condition that she not tell his family he was Samantha’s father. See Compl. ¶¶ 74–

75. The call transcripts reveal that Brown said that Truman “[wouldn’t] see” the money for “at

least a week and a half.” Call Trs. at 3 (JENNIFER: “So I’ll be expecting, like you know, you

should be coming with a nice amount for me. And I know you will. And uh, I’ll expect to see

something. . . .” PETER: “You won’t see it for at least a week and a half . . . I will send you

something.”); see also Text Chain at 7 (Truman: “A week and a half like you said. I want to start

the therapy soon. No more talking.”). Brown said that he would send “at least a hundred grand.”

Call Trs. at 8. When Truman then suggested “five” as “a good number,” Brown said, “[y]eah . . .

it won’t happen right away, though . . . [i]t will take a while.” Id. When pressed by Truman, he

said, “you’ll get this first one, I promise you that.” Id. at 9. After the call, Truman said, “at least

he’s gonna start with a hundred thousand.” Id.

3. Brown Does Not Pay $500,000

On the morning of October 4, 2018, Truman sent Brown an email, which stated: “Good

morning. It’s the 4th. Like you told me on the phone, time for action . . . Please just try to do it

all at once, the 470 like you said.” Email Chain at 3–4. It appears that Brown then left Truman a

voicemail, stating, “Uh, you threw us that number. I have no idea how I’m gonna raise it. But, I

think we gotta discuss this a little bit, and how soon I can get more for you . . . And that we

won’t be con, contacting either of our, either of us, or you my family at all.” Call Trs. at 11. In

response, Truman emailed Brown saying, “Got your message . . . I didn’t just make up this

number, we discussed it the other night when you said you would have 100 by the 4th, today.

Then we agreed on a final number of 500 during that conversation.” Email Chain at 3; see also

Compl. ¶ 76. Truman added: “I just want it to all be over and never communicate with you or

your family ever again . . . I don’t want to talk to you anymore.” Email Chain at 3. Brown then

emailed back, asking “[w]hat guarantees” he had that no one, including his family, would “ever

be contacted about this again.” Id. Brown then sent a second email, stating that he needed “to be

assured that this will be the end of any and all contact,” to which Truman responded, “[i]t will

be.” Id. at 2; see also Compl. ¶ 77. Brown never countered with a lower number. Compl. ¶ 77.

On the afternoon of October 4, 2018, Brown texted Truman, saying that he was

“[a]waiting inward cable info for [c]hk today.” Text Chain at 10. The next day, Brown texted

that the money had “cleared.” Id.; see also Compl. ¶ 77.

When Truman received the check, it was for $100,000, not “the agreed upon amount” of

$500,000. Compl. ¶ 78; Demand Ltr. at 4. As a result, Truman hired an attorney, who sent a

demand letter to Brown. Compl. ¶ 79; see Demand Ltr. The demand letter stated that Truman

and Brown had entered “a binding and legal contract,” under which Truman “promised not to

contact [Brown] or [his] family or divulge the true nature of [their] relationship and the paternity

of her daughter in exchange for [Brown’s] promise to pay her $500,000. [He] accepted that offer

by agreeing to pay; therefore a contract was formed.” Demand Ltr. at 3. The letter also stated

that Brown would “reimburse her for the expenses of raising Samantha and the counseling she

needs.” Id. The letter instructed Brown to contact Truman’s counsel by December 30, 2018

about paying the remaining $400,000, or Truman would take legal action. Id. at 4. Brown’s

counsel responded with a letter denying that Brown owed anything, because, he asserted, either

there was no contract or the contract was unenforceable. Demand Reply at 1. In that letter,

Brown’s counsel accused Truman of extortion. See id. at 2–3; Compl. ¶ 80. Brown’s counsel

further stated that Brown was “looking forward to establishing a more involved relationship with

Samantha.” Demand Reply at 3.

Truman’s Complaint alleges that Brown’s conduct caused damage to Truman. See

Compl. ¶¶ 80–84. This damage includes Truman’s loss of her relationships with Ivan and

Samantha; the years Truman lost while “raising the Defendant’s daughter . . . which can never be

recovered”; and the respect of those around her. Id. ¶¶ 81–83. The Complaint states that

Truman is “now completely alone.” Id. ¶ 84.

The Complaint further alleges that Brown’s counsel’s letter caused Truman more anxiety

and distress, including by accusing her of extortion and stating that Brown now wanted to be

involved in Samantha’s life. See id. ¶¶ 80, 93–94. After Brown failed to pay the $500,000,

Truman increased the amount of counseling she received. Id. ¶ 95. Truman’s anxiety and

emotional distress worsened in the months after receiving this letter, affecting her relationships

and leading her to use Talkspace, a service that allows her to text professional therapists at any

time and costs $500. Id. ¶¶ 96–97. Truman has also lost more than 25 pounds, which her

physician has concluded is “100% stress related.” Id. ¶ 98.

B. Procedural History

On February 19, 2019, Truman filed her Complaint, Compl., accompanied by several

exhibits, see Dkts. 1-4–1-10. On April 2, 2019, Brown filed a motion to dismiss, Dkt. 10, which

included a supporting memorandum of law, Dkt. 10-1 (“Def. Mem.”), a declaration from

Jonathan D. Warner, Esq., Dkt. 10-2, and an exhibit containing a copy of the now-sealed

Complaint, Dkt. 10-3. On April 3, 2019, the Court issued an order directing Truman to either

amend her complaint or oppose the motion to dismiss. Dkt. 11. On April 15, 2019, Truman

filed an opposition to Brown’s motion. Dkt. 15 (“Pl. Mem.”). On May 15, 2019, Brown filed

his reply. Dkt. 16 (“Def. Reply”).

On May 17, 2019, Truman filed a motion requesting permission to file a sur-reply.

Dkt. 17. On May 20, 2019, the Court called for a response from Brown. Dkt. 18. On May 22,

2019, Brown filed that response, opposing Truman’s request. Dkts. 19. The next day, the Court

denied Truman’s request. Dkt. 20.2

2 There have been a number of submissions and orders aimed at assuring that, given the sensitive

matters discussed in various filings, that public filings were properly redacted. On September 6,

2019, the Court issued a sealed order, and an accompanying publicly filed order, instructing

counsel to publicly file redacted versions of the Complaint and Brown’s memorandum of law in

support of his motion to dismiss. See Dkt. 21. On September 10, 2019, Brown filed a redacted

version of his memorandum of law. Dkt. 22. The same day, the Court issued a sealed order and

a public order that directed Brown’s counsel to file a redacted version of the exhibit in support of

his motion to dismiss. Dkt. 23. On September 11, 2019, Truman filed a letter asking for

clarification of the September 10, 2019 sealed order. Dkt. 24. That day, Brown filed a second

redacted version of his memorandum of law, Dkt. 25, in addition to the Warner declaration,

Dkt. 26, and a redacted version of the exhibit containing a copy of the Complaint, Dkt. 26-1.

The Court also issued an order instructing Truman to file a redacted version of the Complaint.

Dkt. 27. Truman three times attempted to file redacted versions of the Complaint, but these

attempts did not comply with the Court’s instructions in its sealed orders. See Dkts. 30, 32. On

September 16, 2019, Truman, now compliant, filed a redacted version of the Complaint.

Dkt. 33.

II. Applicable Legal Principles

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). A claim will only have “facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is

properly dismissed where, as a matter of law, “the allegations in a complaint, however true,

could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558.

For the purpose of resolving a motion to dismiss, the Court must assume all well-pled

facts to be true, drawing all reasonable inferences in favor of the plaintiff. See Koch, 699 F.3d

at 145. That tenet, however, “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. A

pleading that offers only “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555.

III. Discussion

Brown moves to dismiss each of Truman’s three claims: for (1) breach of contract,

(2) intentional infliction of emotional distress, and (3) negligent infliction of emotional distress.

The Court addresses each in turn.

A. Breach of Contract

Brown moves to dismiss the breach of contract claim for three main reasons: because (1)

it is an oral agreement barred by the Statute of Frauds, see Def. Mem. at 14–16; Def. Reply at 1–

4; (2) it is the product of extortion and hence is void and unenforceable, see Def. Mem. at 9–13;

Def. Reply at 4–7; and (3) to the extent Truman seeks to recover for a past sexual relationship,

the agreement lacks consideration and is contrary to public policy, see Def. Mem. at 13–14. The

Court addresses the first two arguments, finding that the first warrants dismissal and that the

second, although presently a close question, does not.3

1. Statute of Frauds

The Statute of Frauds requires that if an agreement “[b]y its terms is not to be performed

within one year from the making thereof” or if its performance “is not to be completed before the

end of a lifetime,” then, to be enforceable, that agreement must be in writing and “subscribed by

the party to be charged.” N.Y. Gen. Oblig. Law § 5-701(a)(1); see also Guilbert v. Gardner, 480

F.3d 140, 151 (2d Cir. 2007). “[F]ull performance by all parties must be possible within a year

to satisfy the Statute of Frauds.” Guilbert, 480 F.3d at 151 (quoting Cron v. Hargro Fabrics,

Inc., 91 N.Y.2d 362, 368 (1998)); see also Sheehy v. Clifford Chance Rogers & Wells, LLP, 3

N.Y.3d 554, 560 (2004).

The agreement alleged by Truman unavoidably falls within the Statute of Frauds because

it is not capable of full performance by both parties within one year. Even assuming arguendo

that the terms of the agreement were otherwise enforceable, Truman’s Complaint alleges that, in

consideration for money, Truman agreed to remain silent as to the nature of her relationship with

Brown and as to Samantha’s paternity. See Compl. ¶ 74; Demand Ltr. at 3. And, as alleged by

3 In light of these rulings, the Court does not have occasion to reach Brown’s third argument.

The Court does note, however, that although compensation for illicit sexual relations cannot

form the primary or main consideration for an agreement, see, e.g., Reid v. McLeary, 706

N.Y.S.2d 179, 180 (2d Dep’t 2000); Pfeiff v. Kelly, 623 N.Y.S.2d 965, 967 (3d Dep’t 1995);

Rose v. Elias, 576 N.Y.S.2d 257, 258 (1st Dep’t 1991), New York courts will sever valid

consideration where possible, see e.g., Donnell v. Stogel, 560 N.Y.S.2d 200, 203 (2d

Dep’t 1990); McCall v. Frampton, 438 N.Y.S.2d 11, 13 (2d Dep’t 1981). Here, Truman’s

Complaint identifies other types of alleged consideration for Brown apart from past sexual

services. These include Truman’s agreement to stay silent as to the true nature of the

relationship with Brown, and to end contact with Brown’s family. See Pl. Mem. at 9–10.

Although past consideration cannot form the basis for a contract that is not in writing and signed

by the party to be charged, see Kastil v. Carro, 536 N.Y.S.2d 63, 64 (1st Dep’t 1988) (citing

N.Y. Gen. Oblig. Law § 5-1105), Truman has identified potentially valid sources of present

consideration.

Truman, there was no temporal sunset on Truman’s confidentiality obligation––Truman’s duty

never to reveal these harmful facts was perpetual.

Confidentiality conditions such as this, which are intended to continue indefinitely, are

barred by the Statute of Frauds if they are not in writing and signed by the party to be charged.

See, e.g., Almeciga v. Ctr. for Investigative Reporting, Inc., 185 F. Supp. 3d 401, 409–10

(S.D.N.Y. 2016) (condition that defendant news organization conceal plaintiff’s identity was “by

its (alleged) terms intended to apply in perpetuity” and fell within the Statute of Frauds); Robins

v. Zwirner, 713 F. Supp. 2d 367, 375 (S.D.N.Y. 2010) (agreement that defendant not disclose

sale of artwork was “intended to last for an unlimited duration” and fell within the Statute of

Frauds (internal quotation marks omitted)).

To be sure, Brown’s payment obligation to Truman could be completed within one year.

But the Statute of Frauds applies where either side’s performance obligation extends beyond one

year, as is the case here with Truman’s vow of silence. And while some cases have focused on

whether the defendant’s obligation is enduring, see, e.g., City of Yonkers v. Otis Elevator Co.,

649 F. Supp. 716, 727 (S.D.N.Y. 1986); Martocci v. Greater N.Y. Brewery, 301 N.Y. 57, 62–63

(1950), the New York Court of Appeals has cautioned that “the nomenclature of the parties is not

what is significant,” Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Grp.,

93 N.Y.2d 229, 237 (1999) (“Messner”). In a number of cases under New York law, the Statute

of Frauds has been held to apply to agreements in which the plaintiff’s obligations extended

beyond one year. See, e.g., Bank of N.Y. v. Sasson, 786 F. Supp. 349, 353 (S.D.N.Y. 1992);

Donaldson Acoustics Co. v. NAB Constr. Corp., 709 N.Y.S.2d 107, 107–08 (2d Dep’t 2000);

Kastner v. Gover, 244 N.Y.S.2d 275, 277 (1st Dep’t 1963), aff’d, 14 N.Y.2d 821 (1964). The

decisive question, in sum, is whether both parties can complete their performance in one year.

See Sheehy, 3 N.Y.3d at 560 (“In order to remove an agreement from the application of the

statute of frauds, both parties must be able to complete their performance of the contract within

one year.”); Tyler v. Windels, 174 N.Y.S. 762, 763 (1st Dep’t 1919) (“[N]othing short of full

performance by both parties will take the contract out of the operation of the statute.”). Here,

they cannot.4

In light of this body of law, Truman therefore, properly, does not contend that her

agreement with Brown, if not in writing and subscribed to by Brown, could survive under the

Statute of Frauds. Instead, although not stating so explicitly, she implies that the agreement

satisfies the Statute of Frauds. To this end, she makes two arguments: that Brown ratified the

agreement through part performance; and that the documentation attached to her Complaint—

including her letters to Brown, text message exchanges with Brown, email exchanges with

Brown, and transcripts of her oral conversations with Brown—“clearly defines the contract’s

terms.” Pl. Mem. at 10. These arguments, however, do not carry the day.

4 It is no answer that Truman conceivably could die within one year. While death would prevent

her from thereafter personally disclosing the pair’s secrets, it would not prevent her Estate from

doing so. The agreement here, as alleged, is not expressly terminable upon death. Burke v.

Bevona, 866 F.2d 532, 536 (2d Cir. 1989) (contract made expressly terminable upon death may

fall outside the Statute of Frauds). Truman’s death would thus not constitute full performance.

See Cacchillo v. Insmed, Inc., 551 F. App’x 592, 594 (2d Cir. 2014); see also Coudert v. Hokin,

No. 12 Civ. 0110 (ALC), 2017 WL 10221323, at *2 (S.D.N.Y. Aug. 23, 2017). It is also no

answer that Truman could unilaterally claim to terminate the agreement within one year, for

example, by repaying Brown and reasserting her right to disclose the pair’s secrets. The

agreement, as alleged, does not provide for a unilateral right to terminate, and a breach of the

agreement does not constitute performance. See Burke, 866 F.2d at 538 (“The New York cases

uniformly hold that implied termination terms are not sufficient to take an oral contract out of the

statute. The terms must be express.”); D&N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d

449, 456–57 (1984) (“[T]ermination is not performance, but rather destruction of the contract . . .

where there is no provision authorizing either of the parties to terminate as a matter of right. . . .

Indeed, the commentators have long agreed that the mere possibility of breach within the first

year of an agreement does not constitute the possibility of some alternative performance which

would take the agreement out of the Statute.” (internal quotation marks and citations omitted)).

First, Brown’s partial performance—making one $100,000 payment to Truman—cannot

save the agreement under the Statute of Frauds. Although New York courts have held that part

performance satisfies the Statute of Frauds as to contracts governed by General Obligations

Law § 5-703, which applies to real estate contracts, they have not so held with respect to

contracts governed by General Obligations Law § 5-701, which applies to agreements, like the

one that Truman alleges existed here, that cannot be performed within one year. See, e.g.,

Messner, 93 N.Y.2d at 234 n.1; Stephen Pevner, Inc. v. Ensler, 766 N.Y.S.2d 183, 184 (1st Dep’t

2003); Valentino v. Davis, 703 N.Y.S.2d 609, 637–38 (3d Dep’t 2000). Because the agreement

posited by Truman falls under General Obligations Law § 5-701, the doctrine of part

performance is inapplicable.

In any event, even assuming arguendo that the doctrine of part performance could apply

to contracts incapable of performance within one year, it would not apply to the agreement pled

here. Under that doctrine, “the acts of part performance must have been those of the party

insisting on the contract, not those of the party insisting on the Statute of Frauds,” because the

point of the part-performance doctrine is to protect the party who has substantially performed in

reliance on the contract. Messner, 93 N.Y.2d at 237–38. Here, in contrast, Truman pleads that it

is Brown, not she, who had partly performed, by giving her $100,000 of the $500,000 allegedly

due. Truman, as the party insisting on enforcement of the contract, cannot invoke Brown’s part

performance as a basis to enforce the oral agreement

Second, the motley communications filed by Truman as attachments to her Complaint

and as ostensibly embodying the parties’ agreement––which consist of emails, text messages,

phone call transcripts, and letters––do not satisfy the Statute of Frauds. To do so, the parties’

agreement must have been evidenced by “some note or memorandum thereof . . . in writing, and

subscribed by the party to be charged therewith.” N.Y. Gen. Oblig. § 5-701(a). Such a writing

also “must contain substantially the whole agreement and all its material terms and conditions, so

that one reading it can understand from it what the agreement is.” Kobre v. Instrument Sys.

Corp., 387 N.Y.S.2d 617, 618–19 (1st Dep’t 1976) (internal quotation marks and citation

omitted).

Here––even assuming arguendo that the iterative sequence of written communications

and transcripts of oral communications on which Truman relies could be reliably read to

constitute an integrated agreement bearing definite terms––there is no such writing. Critically,

the Complaint here, and its exhibits, do not reveal any document that is signed by Brown at all,

as required by the Statute of Frauds. N.Y. Gen. Oblig. § 5-701(a). Instead, Brown’s unsigned

emails state only: “Sent from my iPhone.” 5 See Email Chain at 2–3. And the assembled

documentation on which Truman collectively relies as ostensibly satisfying the Statute of Frauds

is infirm in other ways. For example, Truman relies on “oral evidence,” i.e., transcripts of the

phone calls that she unilaterally recorded. These, however, do not constitute a writing within the

meaning of the Statute of Frauds. See Sonders v. Roosevelt, 64 N.Y.2d 996, 997 (1985) (holding

that plaintiff’s tape recording of conversation with defendant did not satisfy Statute of Frauds).

Accordingly, Truman’s breach of contract claim is barred by the Statute of Frauds.

2. Illegality

Brown argues that Truman’s breach of contract claim is independently deficient because

the agreement that Truman posits would be illegal. Illegal agreements “are, as a general rule,

5 Although a typed signature at the end of an email may constitute a signed writing for purposes

of the Statute of Frauds, see Stevens v. Publicis, SA, 854 N.Y.S.2d 690, 692 (1st Dep’t 2008),

Brown’s emails do not contain such a signature. See also Bayerische Landesbank v. 45 John St.

LLC, 960 N.Y.S.2d 64, 65 (1st Dep’t 2013) (holding that email with pre-printed signature does

not constitute signed writing).

unenforceable” in a breach of contract action. Lloyd Capital Corp. v. Pat Henchar, Inc., 80

N.Y.2d 124, 127 (1992). “It is the settled law of [New York] (and probably every other State)

that a party to an illegal contract cannot ask a court of law to help him carry out his illegal

object.” State v. Freeman, 298 N.Y. 268, 271 (1948).

Here, Brown argues that the agreement alleged by the Complaint is illegal because, on

the facts pled, it is the product of extortion by Truman. See Def. Mem. at 11. Under New York

law, a person commits extortion if she compels or induces another to transfer property to her by

instilling in that person a fear that if the property is not delivered, the actor or someone working

with her will “[e]xpose a secret or publicize an asserted fact, whether true or false, tending to

subject some person to hatred, contempt or ridicule.” N.Y. Penal Law § 155.05(2)(e)(v).

Attempted extortion is also a crime. See id. § 110.00. In cases involving contracts found to be

extortionate, New York courts have dismissed claims of breach, on the grounds that such

contracts are illegal and unenforceable. See Yao v. Bult, 666 N.Y.S.2d 159, 160 (1st Dep’t

1997).

Critically here, an element of extortion is a threat, from the person seeking the property,

that she will expose the controversial secret or fact. See People v. Dioguardi, 8 N.Y.2d 260, 269

(1960); see also N.Y. Penal Law § 155.05(2)(e)(v). Such a threat can be implied, as opposed to

explicit. See Kraft Gen. Foods, Inc. v. Cattell, 18 F. Supp. 2d 280, 285 (S.D.N.Y. 1998); People

v. Kacer, 448 N.Y.S.2d 1002, 1007 (Sup. Ct., N.Y. County 1982).

The parties disagree about whether the Complaint and attached exhibits demonstrate that

Truman threatened Brown, as required to find extortion. Brown argues that the Complaint and

the accompanying Demand Letter support such a threat: In his framing, Truman demanded

$500,000 from him, implying that she might otherwise disclose their longstanding affair and

Samantha’s paternity. See Def. Mem. at 11; Def. Reply at 5 (citing Demand Ltr. at 3). As

Brown notes, Truman, after Samantha learned about Brown’s likely paternity, wrote: “You

thought . . . no one would find out and there never would be consequences.” Sept. 17, 2018 Ltr.

at 1. Truman counters that, based on the Complaint and the documents attached to it, the

condition that Truman remain silent was introduced by Brown, and that, viewing the pleadings in

the light most favorable to Truman, she did not threaten, explicitly or implicitly, to disclose these

damaging facts. See Pl. Mem. at 7–8.

The Court regards this question as close. Favoring Brown’s reading, New York courts

have held that agreements involving payments to induce a party to stay silent regarding sexual

relationships and other intimate information bespeak extortion and are hence void for illegality.

In Yao, for example, the plaintiff, a lawyer who had had an intimate relationship with a wealthy

financial executive, threatened to expose that the executive was gay and that he had previously

been in a relationship with an individual with AIDS. See Matter of Yao, 680 N.Y.S.2d 546, 547

(1st Dep’t 1998) (per curiam); Matter of Yao, 661 N.Y.S.2d 199, 200 (1st Dep’t 1997) (per

curiam).6 The plaintiff alleged that he and the executive had entered into an oral agreement in

which the executive promised to pay the plaintiff $10,000 per month, in exchange for the

plaintiff’s promise not to publicize that personal information. See Matter of Yao, 680 N.Y.S.2d

at 547; Matter of Yao, 661 N.Y.S.2d at 200. After making the first payment, the executive

stopped paying, and the plaintiff sued for breach of contract. Matter of Yao, 661 N.Y.S.2d at

6 While the First Department case that addressed the contract question, Yao, 666 N.Y.S.2d at

159, does not recount these facts, the two cited cases do so. These summarize the facts of the

Yao dispute in the context of disciplinary hearings that resulted in plaintiff’s temporary

suspension from the Bar, Matter of Yao, 661 N.Y.S.2d at 202, and eventual disbarment, Matter

of Yao, 680 N.Y.S.2d at 548, for extortion and filing the frivolous breach of contract claim.

200. The First Department affirmed the dismissal of the breach of contract claim, because the

contract was extortionate. Yao, 666 N.Y.S.2d at 160.

As Brown notes, the agreement alleged by Truman contains similar terms to that in Yao.

In the Demand Letter sent to Brown’s attorney, Truman’s attorney described the agreement as

follows: “Ms. Truman promised not to contact [Brown] or [his] family or divulge the true nature

of [their] relationship and the paternity of her daughter in exchange for [his] promise to pay her

$500,000. [He] accepted that offer by agreeing to pay; thereafter a valid contract was formed.”

Demand Ltr. at 3. This statement is consistent with Truman’s having––at least implicitly––

threatened that, if she were not paid, she would expose her sexual relationship with Brown and

Brown’s out-of-wedlock paternity of Samantha, both of which constitute “secret[s]” that would

tend to subject Brown to “hatred, contempt or ridicule.” N.Y. Penal Law § 155.05(2)(e)(v).

At the same time, Truman cites to allegations in the Complaint and attached exhibits that,

although not establishing that Brown, unprompted, demanded Truman’s silence as a condition on

which he would pay her, are at least consistent with that series of events.7 On this reading, while

the terms of Truman and Brown’s agreement parallel those held void as extortionate in Yao, the

non-disclosure condition was Brown’s impetus exclusively.

In the end, the Court is mindful that on a motion to dismiss, the pleadings must be read in

the light most favorable to the plaintiff. A court must be wary of drawing factual inferences for a

7 See Pl. Mem. at 8 (citing Compl. ¶ 74 (Brown “made it clear that he would give Ms. Truman

money on the condition that she would forebear from disclosing the paternity of Samantha to his

family”)); see also id. at 8 n.1 (citing Call Trs. at 11 (Brown stating in voicemail that “I think we

gotta discuss this a little bit . . . how to know that this is, will be the end of it. And that we won’t

be con, contacted either of our, either of us, or you my family at all.”); Email Chain at 2 (Brown

stating in email that he “need[s] to be assured that this will be the end of any and all contact”);

Email Chain at 3 (Brown asking in email, “What guarantees do I have that no family members or

anyone Wil [sic] ever be contacted about this again?”)).

defendant that, even if rational, are arguable. See Edrei v. Maguire, 892 F.3d 525, 539

(2d Cir. 2018) (“Perhaps this is an inference that a factfinder might ultimately make, but at this

stage we must draw all inferences in favor of the plaintiffs, not the defendants.”). Brown has not

cited case law under which an agreement to pay another not to publicize damaging secrets would

necessarily be extortionate and illegal where the facts show neither an express or implied threat

of disclosure by the person promising silence. And the Court is unprepared, on the pleadings,

which leave less than pellucid the parties’ full course of communications, to hold that Truman

necessarily threatened disclosure of Brown’s embarrassing secrets so as to have committed

extortion. The Complaint and the communications attached to it do not contain an express threat

by Truman to this effect. And while these are consistent with an implied such threat, they do not

unambiguously reveal that Truman, in seeking money, implied that she otherwise might disclose

these secrets.

To be sure, Brown’s claim that Truman implied such a threat, prompting his insistence on

such a condition, is quite plausible. A finder of fact, upon hearing the principals’ testimony and

reviewing the documentary evidence, including the Demand Letter, might well so conclude. But

that reading––that Truman introduced the threat of disclosure––is not the only plausible one.

Truman’s alternative theory is not inconceivable. She posits that, after Samantha learned of

Brown’s apparent paternity, Truman did no more than ask for money from Brown, and that it

was Brown who, newly fearful of disclosure now that there was no longer a secret to be kept

from Samantha, on his own initiative demanded a vow of silence from Truman as a condition for

paying her. On that reading, Truman’s acquiescence to that condition, without more, would not

constitute extortion on her part. See Andrea Doreen Ltd. v. Bldg. Material Local Union, 299

F. Supp. 2d 129, 156 (E.D.N.Y. 2004) (no extortion because no threat); cf. People v. Flynn, 475

N.Y.S.2d 334, 338 (Sup. Ct., N.Y. County 1984) (larceny by trick and false pretenses charges,

N.Y. Penal Law § 155.05(2)(a), not viable where evidence did not “rise to the level of even an

implied threat”).

Were Truman’s breach of contract claim not blocked by the Statute of Frauds, the

decisive question as to whether the contract was the product of extortion and hence inherently

illegal––whether Truman expressly or impliedly threatened disclosure of Brown’s secrets––

would have been tested in discovery. Brown’s claim that the agreement with Truman, if any,

was the product of a threat of disclosure would then have been assessed on a full record of the

parties’ communications, and resolved, at summary judgment or at trial. However, because the

breach of contract claim is independently deficient, there is no occasion to undertake such

discovery.

The Court, accordingly, dismisses Truman’s breach of contract, but only on the first

ground urged by Brown: that the agreement Truman alleges is barred by the Statute of Frauds.

B. Intentional Infliction of Emotional Distress

The Court next addresses Truman’s claim for intentional infliction of emotional distress

(“IIED”).

To plead a claim of IIED under New York law, a plaintiff must allege “(1) extreme and

outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of

causing, severe emotional distress; (3) a causal connection between the conduct and the injury;

and (4) severe emotional distress.” Conboy v. AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001)

(quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)); accord Howell v. N.Y. Post Co.,

81 N.Y.2d 115, 121 (1993). The New York Court of Appeals has held that these requirements,

especially that of extreme and outrageous conduct, “are rigorous and difficult to satisfy.”

Howell, 81 N.Y.2d at 122; see also Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303

(1983) (describing IIED as a “strict standard”). “Liability has been found only where the

conduct has been so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.” Chanko v. Am. Broadcasting Cos., 27 N.Y.3d 46, 56 (2016) (quoting Howell, 81

N.Y.2d at 121).

Brown moves to dismiss Truman’s IIED claim for two reasons. First, he argues that

much of the actions alleged in the Complaint are time barred. See Def. Mem. at 16–18. Second,

he argues that the Complaint does not allege extreme and outrageous conduct, and that Truman’s

conduct within the limitations period falls particularly short of that standard. See id. at 18–20;