The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JANE DOE,
Plaintiff, MEMORANDUM AND ORDER
22-CV-07773 (OEM) (RML)
-against-
NEW YORK CITY DEPARTMENT OF
EDUCATION, CITY OF NEW YORK, DAVID C.
BANKS, and ALEX TRIPODI,
Defendants.
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ORELIA E. MERCHANT, United States District Judge:
On December 12, 2022, pseudonymous plaintiff Jane Doe (“Plaintiff”) brought suit against
the New York City Department of Education (the “NYC DOE”), the City of New York (the
“City”), David C. Banks (“Banks,” together with the NYC DOE and the City the “City
Defendants”), and Alex Tripodi (“Tripodi,” together with the City Defendants “Defendants”),
bringing claims for violation of N.Y.C. Admin. Code §10-1104 (the “Gender Motivated Violence
Act” or “GMVA”), battery, assault, threat to disseminate an intimate image, intentional infliction
of emotional distress, and claims pursuant to Title IX, 18 U.S.C. § 2252 (“Title IX”) and 42 U.S.C.
§ 1983 (“§ 1983”). See generally Plaintiff’s Complaint (“Compl.”), ECF 1. Before the Court are
Tripodi’s motion to dismiss and motion to strike, filed on October 2, 2023, and the City
Defendants’ motion to dismiss, filed on December 7, 2023. For the reasons that follow, the City
Defendants’ motion to dismiss is granted as to Plaintiff’s § 1983 claims and denied as to Plaintiff’s
remaining claims, and Tripodi’s motions are hereby denied.
BACKGROUND
Plaintiff alleges that Tripodi, her classmate at Brooklyn Tech High School, coerced her
into sharing “naked images and videos,” then used the threat of sharing those photos to continue
to abuse and control Plaintiff for several months, all while Plaintiff was still a minor. Compl. ¶
10. Plaintiff alleges that among other abuses, Tripodi used the threat of public humiliation to
coerce Plaintiff into taking and sending him hundreds of further naked images and videos against
her will. Plaintiff also alleges two incidents of physical abuse: one where Tripodi “pushed
[Plaintiff] forcefully against the front door of the building where she lives,” and one where Tripodi
“cornered JANE DOE in the staircase of her apartment and put his hand against her throat,”
causing her “extreme fear.” Compl. ¶ 38. Plaintiff alleges that this abuse took place during 2020
and 2021, while Brooklyn Tech was teaching remotely.
Plaintiff alleges that in September 2021, upon Brooklyn Tech’s return to in-person
learning, she informed high school administrators that this abuse had taken place, “with the goal
of seeking her school’s help to keep her safe from encountering her abuser at school.” Compl. ¶
11. Plaintiff alleges that the school responded by moving her out of classes with Tripodi and
offering to transfer her out of Brooklyn Tech. The school allegedly took no further action to keep
Tripodi away from Plaintiff. Plaintiff alleges that she encountered Tripodi on campus and had
severe anxiety caused by the constant threat of seeing him in the halls at school. Plaintiff also
alleges that after her complaint against Tripoldi became known within the school community, the
Brooklyn Tech administration accused her of encouraging classmates to harass Tripodi.
Plaintiff brings a variety of claims against Tripodi and brings § 1983 and Title IX claims
against the City Defendants.
The City Defendants move pursuant to Rule 12(b)(6) to dismiss Plaintiff’s claims in their
entirety. Plaintiff opposes the City Defendants’ motion to dismiss, alleging that the City
Defendants violated Plaintiff’s rights under § 1983 and Title IX (deliberate indifference and hostile
environment) when the City Defendants failed to promptly investigate and appropriately respond
to sexual harassment beginning during the period of remote learning during the pandemic and
continuing through the return to in-person classes.
Alex Tripodi moves to dismiss Plaintiff’s Gender Motivated Violence Act claim and moves
to strike references to “sexual violence” from the complaint.
DISCUSSION
I. City Defendants’ Motion to Dismiss
A. Harassing Conduct Under Title IX
The City Defendants contend that since Tripodi’s offensive behaviors towards Plaintiff
happened exclusively during the period of remote learning and had ceased before the return of in-
person learning, the City Defendants lacked “substantial control” over Tripodi or the context in
which the harassment occurred, rendering Title IX inapplicable. The City Defendants contends
that “[b]ecause [the NYC] DOE did not exercise substantial control over both Tripodi and the
circumstances in which he allegedly sexually harassed Plaintiff, the Court cannot infer that [the
NYC] DOE’s response to the harassment is governed by Title IX.” City Defendants’
Memorandum of Law in Support of Motion to Dismiss (“NYC MTD MOL”), ECF 31 at 8.
Furthermore, the City Defendants claim that their response was not “deliberately indifferent” nor
“clearly unreasonable,” such that any delay in initiating an investigation was “relatively short.”
Id. at 9. Finally, the City Defendants contends that the allegedly hostile educational environment
Plaintiff experienced when Plaintiff’s friends were disciplined in the backlash against Tripodi does
not constitute discrimination against Plaintiff on the basis of her sex. Id. at 11.
In opposition, Plaintiff clarifies that her Title IX claim only covers the period of time after
Plaintiff reported Tripodi’s abuse to her guidance counselor—not the period of time during remote
classes when the school was unaware of Tripodi’s conduct. Plaintiff’s Opposition to the City
Defendants’ DOE’s MTD (“NYC Opp.”), ECF 33 at 4. Additionally, Plaintiff claims that remote
learning during the pandemic “muddied” the concept of what is on or off campus, making even
remote, digital harassment an effectively “on campus” action. Id. at 3. Plaintiff alleges that she
was deprived of educational opportunity and caused to endure a hostile educational environment
when she was forced to attend school with her abuser and when the City Defendants “failed to
enact any meaningful disciplinary measures” against Tripodi. Id. at 7.
As an initial matter, the Court finds that the NYC DOE had substantial control over Tripodi
during the time period challenged by Plaintiff: the period of time after Plaintiff first made reports
of abuse and after students had already returned to campus. The Court finds that Plaintiff may
pursue Title IX claims against the City Defendants for this time period, finding persuasive the
District of Connecticut’s holding in Doe ex rel. Doe v. Coventry Bd. of Educ. 630 F. Supp. 2d
226, 232 (D. Conn. 2009) (“In this case, the Defendant is not liable for the sexual assault of Mary
Doe because it did not occur on the high school grounds, and because the Defendant was not
informed of the assault until after it occurred. The Defendant could, however, be liable for post-
assault harassment.”).
In order to establish a claim based on student-on-student harassment for this time period
under Title IX, Plaintiff must demonstrate that: (1) the alleged harassment was so “severe,
pervasive, and objectively offensive” that it deprived the plaintiff of “access to the educational
opportunities or benefits provided by the school”; (2) the funding recipient had “actual knowledge”
of the sexual harassment; and (3) the funding recipient was “deliberately indifferent” to the
harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 645-650 (1999).
(1) Severe and pervasive
In this case, the harassment challenged by Plaintiff is not the underlying abuse by Tripodi,
but the inherent harassing effect of his presence on campus. The Court finds Plaintiff has
adequately alleged that the risk of encountering her abuser on campus was sufficiently harassing
to meet the Davis test’s severe and pervasive harassment requirement.
“For a court to find that harassment denied a student access to educational resources and
opportunities, the ‘harassment must have [had] a concrete negative effect on the victim’s
education, which may include dropping grades, becoming homebound or hospitalized due to
harassment, physical violence, or physical exclusion from a school resource.’” Carabello v. New
York City Dep’t of Educ., 928 F. Supp. 2d 627, 643 (E.D.N.Y. 2013) (internal citations omitted).
Plaintiff has adequately alleged such a concrete negative effect: “At times, JANE DOE would feel
so distressed that she would hide in the bathroom and cry, unable to attend class. Other times, she
would hide her tears but sit in class completely dissociated and unable to complete academic tasks.
JANE DOE actively avoided areas of campus where TRIPODI might be.” Compl. ¶ 69.
The Court finds instructive the holdings of other courts in this district that have found the
“severe and pervasive” element of the Davis test met under similar circumstances. See Kelly v.
Yale Univ., No. CIV.A. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003) (“The
court agrees that a reasonable jury could conclude that further encounters, of any sort, between a
rape victim and her attacker could create an environment sufficiently hostile to deprive the victim
of access to educational opportunities provided by a university. Kelly has therefore raised an issue
of material fact with respect to the first element of the Davis test.”); Doe ex rel. Doe v. Coventry
Bd. of Educ., 630 F. Supp. 2d 226, 233 (D. Conn. 2009) (“The mere fact that Mary Doe and Jesse
attended school together could be found to constitute pervasive, severe, and objectively offensive
harassment so as to deny Mary Doe equal access to school resources and opportunities. The
evidence shows that Jesse was permitted to continue attending school with Mary Doe for three
years after the assault, leaving constant potential for interactions between the two. Although the
Defendant argues otherwise, a reasonable jury could conclude that Jesse’s mere presence at the
high school ‘was harassing because it exposed [Mary Doe] to the possibility of an encounter with
him.’”); C.f. Carabello v. New York City Dep’t of Educ., 928 F. Supp. 2d 627, 644 (E.D.N.Y. 2013)
(“With B.P. permanently removed from New Utrecht, M.H.’s fear of future abuse alone could not
have provided a sufficiently hostile environment to deprive her of access to educational
opportunities. Contra Kelly, 2003 WL 1563424, at *3 (holding rapist’s continued presence on
campus exposed victim to future encounters, which ‘of any sort ... could create an environment
sufficiently hostile to deprive victim access to opportunities of university’).”). Accordingly, the
Court finds that Plaintiff has adequately pled the “severe and pervasive” element of the Davis test.
(2) Actual Knowledge
Plaintiff adequately alleges that the City Defendants had actual knowledge of Plaintiff’s
allegations during the relevant time period: she alleges that she “reported TRIPODI’s abuse and
sexual violence to the Brooklyn Tech guidance counselor” in September 2021. Compl. at 3. The
City Defendants do not put forward any arguments against a finding of actual knowledge. See
generally NYC MTD MOL.
(3) Deliberate Indifference
“The Supreme Court has held that Title IX’s requirement of an ‘adequate response’ is
violated […] if the response that is rendered ‘amount[s] to deliberate indifference to
discrimination.’” Hayut v. State Univ. of New York, 352 F.3d 733, 751 (2d Cir. 2003) (cleaned
up). “Deliberate indifference may be found both when the defendant’s response to known
discrimination is clearly unreasonable in light of the known circumstances, [...] and when remedial
action only follows after a lengthy and unjustified delay.” Id. (cleaned up).
“‘Clearly unreasonable’ is not a ‘mere’ reasonableness standard.” Soriano ex rel. Garcia v.
Bd. of Educ. of City of New York, No. 01 CV 4961(JG), 2004 WL 2397610, at *4 (E.D.N.Y. Oct.
27, 2004) (quoting Davis, 526 U.S. at 648). “In other words, for a court to find that a school acted
with deliberate indifference, the measures taken must be so inadequate that a degree of
discriminatory intent may be inferred.” Doe v. Trustees of Columbia Univ. in City of New York,
No. 21-CV-5839 (ER), 2023 WL 4211031, at *7 (S.D.N.Y. June 27, 2023). In general, “courts
should refrain from second-guessing the disciplinary decisions made by school administrators.”
Davis, 526 U.S. at 648.
Here, Plaintiff has adequately alleged that the City Defendants’ response to Plaintiff’s
reports of abuse was deliberately indifferent. After Plaintiff reported her abuse, Plaintiff’s
guidance counselor promptly changed her schedule to move her out of a statistics class shared with
Tripodi, but it took the school approximately four weeks and a follow-up by Plaintiff to spur any
further action. At that point, the school began an investigation and approximately one month later
Brooklyn Tech offered Plaintiff an apology letter written by Tripodi and stated that he had deleted
all sexual photos of Plaintiff from his phone (while supervised by Brooklyn Tech’s dean).
Brooklyn Tech made no endeavor to keep Plaintiff and Tripodi separated on campus, either
in classes or in other events, that did not involve putting the onus on Plaintiff: her guidance
counselor changed her class schedule and “offered to write JANE DOE notes to excuse her from
class when she felt too emotionally distressed to attend,” but never made Tripodi change his
schedule in any regard. Compl. at 16. The City Defendants’ decision to permit Plaintiff to make
changes to her own behavior so as to avoid future direct harassment does not immunize the City
Defendants. See Kelly, 2003 WL 1563424, at *4 (“Although Kelly was not subjected to further
harassment by Nolan, it was her departure from her classes and her dormitory, not any immediate
action taken by Yale, that assured that outcome. Therefore, a reasonable jury could find that Yale’s
response, or lack thereof, rendered Kelly ‘liable or vulnerable’ to Nolan’s harassment, […] and
that Yale’s failure to provide Kelly with accommodations, either academic or residential,
immediately following Nolan’s assault of her, was clearly unreasonable given all the
circumstances of which it was aware.”). In alleging that the City Defendants put the onus on
Plaintiff to change classes, and did not take any action to move Tripodi, Plaintiff has adequately
alleged that the City Defendants’ response to Plaintiff’s allegations was clearly unreasonable. See
Coventry, 630 F. Supp. 2d at 236. (“Similarly, a jury could find it unreasonable that the school did
not take action by ensuring Jesse was in different classes than Mary Doe. Given the totality of the
high school experience, should the jury find that the class situation was reasonably managed, it
could still find the Defendant’s lack of discipline with regard to other school activities to constitute
deliberate indifference.”).
Accordingly, because Plaintiff has adequately pled a Title IX claim, the City Defendants’
motion to dismiss Plaintiff’s Title IX claims is denied.
B. § 1983 Claims
The City Defendants argue that Plaintiff has failed to identify a procedural due process
right that Plaintiff was denied. The City Defendants argue that Plaintiff’s complaint to the school
was handled adequately: it was “investigated without unreasonable delay” and “was
substantiated.” NYC MTD MOL at 12. The City Defendants argue that the due process clause
does not impose an obligation to create policies protecting students from each other, that Plaintiff’s
Title IX claim subsumed her Equal Protection claim, and that Plaintiff failed to allege municipal
liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
Specifically, regarding Monell, the City Defendants argue that (1) Plaintiff’s core allegation is that
employees did not create new policies or enforce existing ones that would have led to Tripodi’s
removal, which is “the antithesis of a Monell claim,” Overhoff v. Ginsburg Dev., LLC, 143 F. Supp.
2d 379, 389 (S.D.N.Y. 2001); (2) that Plaintiff has not plead that there was sufficiently widespread
conduct such that can give rise to a Monell deliberate indifference claim; and (3) that the alleged
victim transfer policy does not exist and “was not even exercised upon Plaintiff,” because “she
was offered a voluntary transfer.” MOL at 15.
Plaintiff retorts that she is challenging a specific, widespread policy: the unwritten victim
transfer policy that she alleges required her to either move to a different school or stay in the same
learning environment as her abuser. Plaintiff also takes issue with the City Defendants’ argument
that Title IX subsumes § 1983 claims, noting that Title IX was not meant to be an exclusive
mechanism for addressing gender discrimination in education. Finally, Plaintiff argues that she
has adequately alleged widespread conduct because she incorporated by reference other lawsuits
against the NYC DOE making identical allegations of a victim transfer policy.
As an initial matter, Plaintiff’s Title IX claim does not subsume her § 1983 claim. “Title
IX contains no express private remedy, much less a more restrictive one. Th[e Supreme] Court
has never held that an implied right of action had the effect of precluding suit under § 1983, likely
because of the difficulty of discerning congressional intent in such a situation. Mindful that we
should ‘not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for
a substantial equal protection claim,’ we see no basis for doing so here.” Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 256 (2009). Moreover, Plaintiff’s § 1983 claim is sufficiently factually
distinct: it targets a purported “victim transfer policy” while her Title IX claim targets on-campus
harassment.
Though her § 1983 claim is not subsumed by her Title IX claim, Plaintiff’s § 1983 claim
nevertheless fails because she has adequately alleged municipal liability under Monell.
Plaintiff’s § 1983 claim specifically challenges a purported “victim transfer policy” that
requires school administrators to respond to instances of sexual assault by merely offering the
victim a school transfer. “[B]oilerplate assertions of municipal policy are insufficient to state a
claim for Monell liability.” Bishop v. City of New York, No. 13-CV-9203 (AJN), 2016 WL
4484245, at *4 (S.D.N.Y. Aug. 18, 2016). “[A] plaintiff must allege facts tending to support, at
least circumstantially, an inference that such a municipal policy or custom exists.” Santos v. New
York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012).
Plaintiff contends that she has met her burden under Monell by alleging an
“unconstitutional practice of a subordinate employee […] so manifest as to imply the constructive
acquiescence of senior policy-making officials.” NYC Opp. at 9 (quoting Perkins v. City of
Rochester, 641 F. Supp. 2d 168, 172 (W.D.N.Y. 2009)). But Plaintiff’s sole evidence for the
alleged victim transfer policy is (1) that she alleges the Brooklyn Tech dean described it to her as
a policy; and (2) that other lawsuits were filed making similar allegations.
Plaintiff’s allegation concerning the statement purportedly made by Brooklyn Tech’s dean
is not sufficient to allege Monell liability. Plaintiff alleges that “Dean Clarke stated that there was
nothing Brooklyn Tech school leaders could do to protect JANE DOE, and that the only option for
keeping her safe, per NYC DOE policy, was for JANE DOE to transfer to a different school
(described throughout as ‘the Victim Transfer Policy’).” Compl. ¶ 73. This passing reference to
“NYC DOE policy” is not clear and particularized enough on its own to adequately plead the
existence of an unwritten “victim transfer policy.”
Plaintiff’s allegations concerning other lawsuits fare no better. “The Second Circuit and
the district courts within the Second Circuit have held that a plaintiff’s citation to a few lawsuits
involving claims of alleged [constitutional violations] is not probative of the existence of an
underlying policy by a municipality […] [T]he existence of other lawsuits against the City alleging
similar violations of constitutional rights also does not establish a policy or custom as necessary
under Monell.” Harris v. City of Newburgh, No. 16-CV-2731 (KMK), 2017 WL 4334141, at *5
(S.D.N.Y. Sept. 27, 2017) (cleaned up). Again, like her allegations regarding the dean’s statement,
Plaintiffs allegations concerning other lawsuits are insufficiently specific and substantial to
adequately plead a municipal policy. See Compl. ¶ 4 (“Since 2016, the NYCDOE was the subject
of multiple lawsuits and federal investigations into discrimination and retaliation against girls who
reported sexual violence by another classmate during school. Yet the NYCDOE has created no
new safeguards to protect child victims of student-on-student sexual violence.”).
Accordingly, Plaintiff’s § 1983 claim is dismissed for a failure to adequately plead Monell
liability.
II. Tripodi’s Motion to Dismiss
In his motion to dismiss, Tripodi seeks dismissal of Plaintiff’s claim pursuant to the Gender
Motivated Violence Act, which states that “any person claiming to be injured by an individual who
commits a crime of violence motivated by gender as defined in section 8-903 of this chapter, shall
have a cause of action against such individual.” N.Y.C. Admin. Code § 8-22 904. “A plaintiff is
required to establish the following elements in support of [a GMVA] claim: (1) the alleged act
constitutes a misdemeanor or felony against the plaintiff; (2) presenting a serious risk of physical
injury; (3) that was perpetrated because of plaintiff’s gender; (4) in part because of animus against
plaintiff’s gender; and (4) resulted in injury.” Hughes v. Twenty-First Century Fox, Inc., 304 F.
Supp. 3d 429, 455 (S.D.N.Y. 2018).
A. Crime of Violence
A “crime of violence” means “an act or series of acts that would constitute a misdemeanor
or felony” that “presents a serious risk of physical injury to another.” N.Y.C. Admin. Code § 8-
903. Tripodi argues that: (1) Plaintiff has not adequately alleged a misdemeanor or felony; and
(2) Plaintiff has not alleged an act that presents a serious risk of physical injury.
(1) Misdemeanor or Felony
Tripodi argues that “[a] generous reading of the complaint suggests only three alleged acts
that could be construed as possible crimes against the Defendant; namely, (1) the placing of the
hand on Defendant’s throat, (2) pushing her, and (3) soliciting sexually explicit content from her.”
Tripodi argues that Plaintiff did not allege she “sustain[ed] an actual injury” from these acts, and
therefore has not alleged “[e]ven the lowest level assault in the state of New York.” Tripodi’s
Memorandum of Law in Support of Motion to Dismiss (“Tripodi MOL”), ECF 25 at 4.
Plaintiff contends that even assuming, arguendo, that she has not alleged assault, she has
alleged a litany of other misdemeanors and felonies including coercion, harassment, menacing,
criminal obstruction of breathing, and sexual exploitation of minors. Memorandum of Law in
Opposition to Tripodi’s Motion to Dismiss (“Tripodi Opp.”), ECF 32 at 4-5.
The Court agrees with Plaintiff that she has adequately alleged a misdemeanor or felony
committed by Tripodi. Plaintiff alleged that Tripodi used physical force against her—choking her
and “forcefully” pushing her into a door—as part of an effort to strike fear into Plaintiff,
“relish[ing] in causing extreme fear” to her. Compl. at 8. At a very minimum, Plaintiff has alleged
harassment in the second degree, in that Tripodi “str[uck], shove[d], kick[ed] or otherwise
subject[ed] [Plaintiff] to physical contact” “with intent to harass, annoy or alarm” her. N.Y. Penal
Law § 240.26.
(2) Serious Risk of Physical Injury
Tripodi argues that “[t]o be sure, a shove can pose a serious risk of injury if a complaint
alleged additional facts not present in the instant complaint. Here, there is no allegation that this
shove posed a serious risk of physical injury. Similarly, placing a hand at someone’s throat can
be menacing. The same act might also be arousing, depending on the participants’ understanding.”
Tripodi MOL at 5. Tripodi also argues that Plaintiff has not “rule[d] out the possibility that the
Defendant’s acts were performed with Plaintiff’s consent.” Id.
Plaintiff responds that her complaint clearly alleges a serious risk of injury: she alleged that
Tripodi was much larger than Plaintiff and “pushed [Plaintiff] forcefully against the front door of
the building where she lives.” Compl ¶ 38. She also alleged that “[o]n another occasion, [Tripodi]
cornered [Plaintiff] in the staircase of her apartment and put his hand against her throat, causing
her “extreme fear.” Id. Plaintiff contends that these acts carry an inherent and obvious risk of
physical injury.
The Court finds that Plaintiff has adequately alleged a serious risk of physical injury. In
allegedly “forcefully” pushing a much smaller person into a door and in putting his hands on her
throat, Tripodi’s acts “present[ed] a serious risk of physical injury to another.” N.Y.C. Admin.
Code § 8-903. Tripodi’s contentions that Plaintiff may have found these acts “arousing” and has
not “rule[d] out the possibility that the Defendant’s acts were performed with Plaintiff’s consent”
are entirely unmoored from the allegations in this case and the standard at the motion to dismiss
stage. Tripodi MOL at 5. It is not Plaintiff’s burden at the pleading stage to “rule out” all possible
factual scenarios, and Plaintiff clearly did not allege that these acts, which she described as
“causing extreme fear,” were either arousing or consented to. Compl. at 8.
B. Motivated by Gender
“The Code specifies that a ‘crime of violence motivated by gender’ is ‘a crime of violence
committed because of gender or on the basis of gender, and due, at least in part, to an animus based
on the victim’s gender.’” Garcia v. Comprehensive Ctr., LLC, No. 17-CV-8970 (JPO), 2018 WL
3918180, at *5 (S.D.N.Y. Aug. 16, 2018) (quoting N.Y.C. Admin. Code § 8-903(b)). Tripodi
alleges that Plaintiff has failed to plead animus based on gender.
Tripodi notes that there are a number of “cases involving truly abhorrent domestic
violence” that courts have dismissed “when the animus is clearly directed only against the plaintiff,
not against all members of plaintiff’s gender.” Tripodi MOL at 6. Tripodi argues that because the
complaint makes no specific allegations regarding his attitudes toward women in general—only
allegations of his abuse toward Plaintiff—Plaintiff has failed to plead animus. Id.
Plaintiff argues that the correct reading of the GMVA is a more permissive one, with a less
strict focus on specific allegations of gender-wide animus. First, Plaintiff points to the legislative
history of the GMVA, which made repeated emphasis of the law’s goal in combating domestic
violence. Because Plaintiff is a victim of domestic violence, Plaintiff argues she should be
considered to fall within the GMVA’s ambit. Second, Plaintiff argues that Tripodi’s gender
animus cases are distinguishable and almost all predate Plaintiff’s cited cases, which have a
broader interpretation of the animus requirement wherein “[a]nimus inheres where consent is
absent.” Breest v. Haggis, 180 A.D.3d 83, 94 (N.Y. App. Div. 1st Dep’t 2019). Plaintiff argues
that she has adequately alleged animus through the sexual exploitation and physical abuse alleged
in her complaint.
Here, on the specific allegations in Plaintiff’s complaint, the Court finds that Plaintiff has
adequately alleged gender-based animus. Plaintiff does not just allege outrageous acts against a
victim who happens to be female: she alleges that Tripodi engaged in a complex and extensive
pattern of sexual coercion to keep Plaintiff “obedient” and subservient to him, accompanied by the
use of misogynistic language like “whore,” “slut,” and “bitch.” Compl. at 10. Considering the
allegations of Plaintiff’s complaint as a whole, the Court finds Plaintiff’s cited precedent more
applicable to the facts of this case and finds that Plaintiff has adequately alleged gender-based
animus. See Breest 180 A.D.3d 83 at 94 (“Without consent, sexual acts such as those alleged in
the complaint are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s
contempt for that autonomy. Coerced sexual activity is dehumanizing and fear-inducing. Malice
or ill will based on gender is apparent from the alleged commission of the act itself. Animus
inheres where consent is absent.”); Engleman v. Rofe, 194 A.D.3d 26 (N.Y. App. Div. 2021)
(same).
C. Striking “Sexual Violence”
Lastly, Tripodi argues that Plaintiff’s references to “sexual violence” should be stricken as
“scandalous and prejudicial.” Tripodi MOL at 8. Tripodi alleges that neither of the two alleged
instances of physical abuse were “either sexual or violent in nature.” Id. In response, Plaintiff
contends that her complaint alleges that Tripodi forced her to make child sexual abuse material,
threatened her with the publication of that material, and was sexually gratified by violently choking
her.
“Motions to strike are not generally favored, except in relation to scandalous matters.
Because striking a portion of a pleading is often sought by the movant as a dilatory tactic, motions
under Rule 12(f) are viewed with disfavor.” Wine Markets Int’l, Inc. v. Bass, 177 F.R.D. 128, 133
(E.D.N.Y. 1998). “Scandalous generally refers to any allegation that unnecessarily reflects on the
moral character of an individual or states anything in repulsive language that detracts from the
dignity of the court.” United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F.
Supp. 3d 759, 773 (S.D.N.Y. 2018).
Here, the purportedly scandalous nature of Plaintiff’s language derives from the
fundamentally scandalous nature of Tripodi’s alleged actions. Plaintiff, inter alia, alleges that
Tripodi was gratified by choking Plaintiff as part of a scheme to coerce her into the production of
child sex abuse material. To label these acts as “sexual violence” is an acceptable description of
Plaintiff’s allegations and does not “unnecessarily reflect on [Tripodi’s] moral character” nor
“detract[] from the dignity of the court.” Raffington, 285 F. Supp. 3d at 773. Accordingly,
Tripodi’s motion to strike is denied.
CONCLUSION
For the reasons set forth above, the City Defendants’ motion to dismiss is granted as to
Plaintiff’s § 1983 claims and denied as to Plaintiff’s remaining claims. Tripodi’s motion to dismiss
and motion to strike are denied.
SO ORDERED.
____/s/_________________________
ORELIA E. MERCHANT
United States District Judge
Dated: Brooklyn, New York
July 26, 2024