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Speaker 1: What's up, everyone, and welcome back to the program. We're

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gonna pick right back up where we left off with

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the Virginia Roberts and Prince Andrew opinion by Judge Kaplan.

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So let's get right back to it. Two. Whether defendant

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is entitled to enforce the release as a third party

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beneficiary of the two thousand and nine agreement. As very

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general matter, the only persons who can enforce a provision

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of a contract are parties to that contract, the people

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who agreed to it. The defendant was not a party

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to the agreement between Epstein and miss Joffrey. Accordingly, even

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if the releasing language in the two thousand and nine

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agreement included the defendant among the persons Miss Joffrey released,

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the question would remain whether the defendant may take advantage

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of that release under Florida law. That depends on whether

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mister Epstein and Miss Jeoffrey intended that he be able

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to do so. In other words, whether he was what

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the law calls a third party beneficiary of the contract.

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Under Florida law, it is essential to the right of

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a third party beneficiary to enforce the contract to which

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he or she is not a party That the clear

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intent and purpose of the contract was to directly and

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substantially benefit the third party. A merely incidental consequential third

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party beneficiary of a contract may not sue for its

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enforcement a relevant provisions of the agreement. In this case,

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there are substantial indications on the face of the two

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thousand and nine agreement itself that Epstein and Miss Joffrey

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did not clearly intend for the releasing language with respect

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to other potential defendants in the Florida case, whatever that

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was intended to mean to directly, primarily or substantially benefit

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those persons as an initial matter, one reasonably might conclude,

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although that may not be the only permissible infairmarance for

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reasons already stated that Epstein's purpose in seeking to obtain

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a release of persons other than Epstein and the other

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second parties was primarily and directly to protect himself from

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becoming embroiled in future litigation. That goal, even assuming that

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the requirements of clear intention to benefit the persons released

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primarily and substantially were satisfied, which is doubtful, would have

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been served only if persons arguably within the releasing language

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were aware of it, and if later suit by Miss

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Joffrey successfully could have asserted the two thousand and nine

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agreement release against her. But the two thousand and nine

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agreement contains provisions that appear to have been intended to

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make sure that such persons would not be aware of

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the release, and, even if aware of it, were prohibited

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from or at least severely limited in their ability to

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use it defensively. First Section four, the Confidentiality Clause provide guides,

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in pertinent part, that the party shall not provide any copy,

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in whole or in part, or in any form, of

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this settlement Agreement to any third party, except to the

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extent required by law or rule, or in response to

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a validly issued subpoena from a government or regulatory agency. Moreover,

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neither this settlement Agreement, nor any copy hereof, nor the

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terms hereof, shall be used or disclosed in any court, arbitration,

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or other legal proceeding, except to enforce the provisions of

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this settlement Agreement. So both Epstein and Miss Joffrey were

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prohibited from providing all or part of the two thousand

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and nine agreement, even to anyone who might have been

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among the persons possibly included within its releasing language. The

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second is a portion of section two, the release provision,

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that provides, additionally, as a material consideration in settling first parties,

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Miss Joffrey and second party Epstein agree that the term

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of this settlement agreement are not intended to be used

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by any other person, nor be admissible in any proceeding

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or case against or involving Jeffrey Epstein, either civil or criminal.

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Taken together, these provisions at least reasonably could be interpreted

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as meaning that Epstein and Miss Joffrey agreed that one

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neither would disclose the two thousand and nine agreement in

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whole or in part to anyone, except upon compulsion of

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legal process, and two, no one was intended to use

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the terms of the two thousand and nine agreement, which

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of course included the release language upon which the defendant

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relies in any preceding or case involving Jeffrey Epstein. B

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defendants cases are in opposite. Defendant nevertheless contends that Florida

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courts have long recognized that an intended third party beneficiary

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of a broad release has standing to enforce that release,

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even when the release does not identif ui FI the

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third party by name. That is, at least an unduly

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broad generalization. The first case, he sites Ulsen versus O'Connell,

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held that purchasers of real property were third party beneficiaries

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of a contract between two sellers of that property and

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holders of an existing judgment lean on it. There However,

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the court indicated that the agreement existed only as the

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necessary part of the impending sale of the property to

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the third party buyers. The sellers had sought the agreement

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only because they could not consummate the sale of the

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property without obtaining a release of the judgment lean. They

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made the deal with the judgment creditor in order to

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affect the sale to the buyers. The buyers. The unnamed

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third parties were so integral to the deal between the

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sellers and the judgment creditor that the court hypothesized that

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they were likely even actual parties to the agreement, as

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evidenced by their execution of the note and more mortgage

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payable to sellers, and their closing of the sale in

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reliance upon the agreement. This case bears no resemblance to Olsen.

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The defendant points next to Hester versus Gatlin and Dean

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versus Bennett m Lifier Incorporated, both of which involved auto

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accidents with multiple potential tortu feezers. In Hester, the owner

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of a car involved in a multi car accident was

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held to be a third party beneficiary of a release

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agreement that had been executed between the plaintiff in that

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case and other drivers who were involved in the accident.

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They're the release language extended to any and all other

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persons and door corporations who are or may be liable

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for injuries or damages sustained as a result of the

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subject accident. And in Dean, a court held that the

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employer of a driver who caused a fatal car accident

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was a third party beneficiary to a settlement agreement between

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the driver's insurance company and the admit administration of the

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victim's estate. The settlement there included general language releasing any

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other person, corporation, association, or partnership charge with responsibility for

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injuries to the person and property of the undersigned and

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the consequences flowing therefrom as a result of the fatal accident.

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As Miss Joffrey observes in her brief, the Hester and

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Dean releases were confined to discrete events on a specific day,

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identifiable subject accidents circumscribing narrowly the subject matter of the

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purportedly released persons or claims, so they too are in

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opposite here, and there is further problems common to all

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defendants cases. None of the cases that defendant sites dismiss

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claims against a defendant putative third party beneficiary who asserted

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or released defensively at the motion to dismiss stage. Prince

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Andrew's view of other potential defendants, on the other hand,

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seeks to confer rights on unnamed third parties that would

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be orders of magnitude broader than those contemplated in any

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of the Florida cases that have been brought to this

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Court's attention. Moreover, whichever way these comparisons break, they matter

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little on the facts of this case. The ultimate goal

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in any case involving a contract is to determine and

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give effect to the intention of the contracting parties. Unlike

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the cases cited by the defendant, where the party's intentions

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were perfectly plain at least by the time the cases

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were decided, the intentions of Miss Joffrey and Epstein concerning

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the release are anything but clear here, at least at

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this stage. The cases upon which defendant relies are of

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no assistance in determining those intentions see the Derschwitz argument. Finally,

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the defendant nevertheless argues that his interpretation of the other

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potential defendant's clause is the only reasonable one on the

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basis of a led defense. Relating to Alan Dershowitz, a

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lawyer and retired law professor whom Miss Joffrey has sued

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in another case, defendant asserts that Miss Joffrey dismissed her

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claims against Professor Dershowitz when this release was raised to

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her as a potential defense. This, according to Prince Andrew,

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proves that the two thousand and nine agreement released mister

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Dershowitz and, by parody of reasoning, the defendant in this case,

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the theory apparently being that both were other potential defendants

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in the Florida case. During oral argument, the court questioned

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that argument based on its suggestion that mister Dershowitz was

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covered by the release in the two thousand and nine

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agreement because he has been one of the Epstein attorneys

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and therefore was among the second parties. In other words,

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that he was covered by the release independent of whether

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he was another potential defendant, as the defendant now claims

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that he is, and on further reflection and an ans analysis. However,

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the suggestion that mister Dershowitz was covered because he was

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one of the second parties was not necessarily correct. A

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release has three essential elements. One one who gives a release,

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usually referred to as a releaser. Two one against whom

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the releaser gives up or surrenders something such as a person,

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usually being referred to as a release he. And three

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a description of what is being released, which may be

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general eg. All claims whatever that the releaser has or

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may have against the release hee, or specific eg. A

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releaser's claim for damages caused by the releaser's motor vehicle.

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In section two, the category of releaser is plain enough

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the first parties. There also is a description of the

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releasees one the second parties, and two any other person

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or entity who could have been included as a potential

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defendant other potential defendants. The problem, however, is that the

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claim against the second parties other than Epstein that purportedly

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were released Specifically, Section two says that claims released were

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claims that the first parties ever had or may have

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against Epstein or other potential defendants for upon or by

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reason of any matter, cause, or thing whatsoever. Strikingly, it

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does not say the first party is released the second

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parties other than Epstein personally as such from any particular

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claims at all, whether all claims or some specific claims. Accordingly,

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element three of the essential elements of a release, the

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specification of what claims against the second party were being

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released is missing. As to the second parties, Accordingly, it

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would be reasonable, indeed arguably unambiguously clear, that the two

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thousand and nine agreement did not release any claims against

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second parties except for one Epstein himself, and two those

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second parties other than Epstein, who, in addition to being

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second parties, came within the definition of other potential defendants.

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Whatever that is to be sure, it might be argued

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that Section two should be read as a broad release

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of all claims that first parties had or may have

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against all of the second parties, notwithstanding its failure to

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say that. But that alternative interpretation cannot be the only

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reasonable view of the meaning. Accordingly, the meaning, and indeed

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as to the second parties as such other than Epstein.

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The validity of the release cannot be decided on this motion.

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The difficulty the problem presents, however, is relevant to the

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extent that demonstrates yet again that the two thousand and

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nine agreement, whatever it was intended to mean, is riddled

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with drafting problems and ambiguities. All right, folks, we're going

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to wrap up Part three here, and in the next

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episode we're going to pick up with Part four. All

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of the information that goes with this episode can be

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found in the description box. What's up, everyone, and welcome

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back to the Epstein Chronicles. In this episode, we're gonna

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pick up where we left off with the opinion of

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Judge Caplan when it comes to the lawsuit between Virginia

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Roberts and Prince Andrew. So let's just get right back

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to it, shall we. The two thousand and nine agreement

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cannot be said to demonstrate clearly and unambiguously that the

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parties intended the instrument directly, primarily or substantially to benefit

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Prince Andrew. The existence of the requisite intent to benefit

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him or others comparable to him is an issue of

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fact that could not properly be decided on this notion,

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even if defendant fell within the releasing language, which itself

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is ambiguous. Thus, independent of whether the release language applies

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to Prince Andrew, the agreement at a minimum is reasonably

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susceptible to more than one interpretation on the equally important

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question of whether this defendant may invoke it. As a

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matter of Florida law, this Court cannot rewrite the two

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thousand and nine agreement to give the defendant rights where

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the agreement does not clearly manifest an intent to create them. Two,

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the complaint states legally sufficient claims. Miss Joffrey's complaint asserts

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two causes of action. Both are state law toward claims,

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the first for battery and the second for intentional infliction

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of emotional distress. Defendant moves to dismiss both on the

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theory that plaintiff has not alleged adequately any violation of

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the New York Penal Code. A legal principles. To survive

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a motion to dismiss under Rule twelve B six, a

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complaint muscle edge facts sufficient to state a claim to

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relief that is plausible on its face. The standard is

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met where the pleded factual content, which on this motion

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must be assumed to be true, permits a reasonable inference

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that the defendant is liable for the misconduct alleged. A

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complaint need not anticipate potential affirmative defenses or affirmatively plead

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facts and avoidance of such defenses, as is the case

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with defendant's arguments predicated on the two thousand and nine agreement.

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The court may not dismiss on an affirmative defense unless

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the defense appears on the face of the complaint. B

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analysis one the complaint is legally sufficient. Plaintiff's complaint plainly

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alleges prima facie cases of battery and iied under New

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York law. Indeed, defendant does not directly contest whether plaintiff's

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allegations satisfy those elements of those causes of action. The

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allegation that plaintiff was forced to sit on defendant's lab

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while he touched her is sufficient to state a battery

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claim under New York law, regardless of which part of

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00:15:57,879 --> 00:16:02,519
her body defendant ultimately is alleged to have touched. To

243
00:16:02,559 --> 00:16:05,600
state such a claim, a plaintiff need allege only that

244
00:16:05,679 --> 00:16:09,360
there was bodily contact, that the contact was offensive, and

245
00:16:09,399 --> 00:16:12,600
that the defendant intended to make the contact without the

246
00:16:12,600 --> 00:16:17,279
plaintiff's consent. Contact is offensive if it was wrongful under

247
00:16:17,399 --> 00:16:21,279
all the circumstances, which certainly is a reasonable inference from

248
00:16:21,320 --> 00:16:25,720
Miss Joffrey's allegations. The only intent required is an intent

249
00:16:25,799 --> 00:16:29,440
to cause a bodily contact that a reasonable person would

250
00:16:29,480 --> 00:16:33,600
find offensive. Any intentional touching affected for the purpose of

251
00:16:33,639 --> 00:16:37,840
satisfying one sexual desires, or made with knowledge that plaintiff

252
00:16:38,159 --> 00:16:41,080
was a sex trafficking victim being forced to engage in

253
00:16:41,120 --> 00:16:44,320
sexual acts with them would permit a reasonable person to

254
00:16:44,399 --> 00:16:47,399
find that the alleged contact was inappropriate in all of

255
00:16:47,399 --> 00:16:51,399
the circumstances, to say nothing of the allegedly forced acts

256
00:16:51,399 --> 00:16:56,600
of sexual intercourse. The sufficiency of plaintiffs miied claim is

257
00:16:56,679 --> 00:17:01,440
similarly apparent. To state anied claim under New York law,

258
00:17:01,600 --> 00:17:05,839
a plaintiff must allege one extreme and outrageous conduct, two

259
00:17:06,279 --> 00:17:11,000
intent to cause or reckless disregard of a substantial probability

260
00:17:11,200 --> 00:17:16,759
of causing severe emotional distress, three a causal connection between

261
00:17:16,759 --> 00:17:20,440
the conduct and the injury, and four severe emotional distress.

262
00:17:21,480 --> 00:17:25,200
Defendant does not challenge the complaint sufficiency as to any

263
00:17:25,200 --> 00:17:29,920
of these elements. Plaintiff has alleged severe emotional distress. She

264
00:17:30,039 --> 00:17:33,640
alleges that it was a direct and proximate result of

265
00:17:33,720 --> 00:17:37,920
Prince Andrew's criminal acts. She asserts that he knew or

266
00:17:37,960 --> 00:17:42,039
disregarded the substantial likelihood that his actions would cause plaintiff

267
00:17:42,319 --> 00:17:48,359
severe emotional distress. And although she so alleges in her complaint,

268
00:17:48,559 --> 00:17:51,200
it should go without saying that the alleged conduct, if

269
00:17:51,200 --> 00:17:54,640
it occurred reasonably, could be found to have gone beyond

270
00:17:54,720 --> 00:17:58,480
all possible bounds of decency and is intolerable in a

271
00:17:58,480 --> 00:18:03,839
civilized community. Sec. Two. Defendant's contention that the plaintiff was

272
00:18:03,880 --> 00:18:08,400
obliged to plete specific facts demonstrating violations of the New

273
00:18:08,519 --> 00:18:13,000
York Penal Law is incorrect. Abandoning reference to the causes

274
00:18:13,000 --> 00:18:16,720
of action in the complaint, Defendant seeks dismissal on the

275
00:18:16,720 --> 00:18:20,440
grounds that plaintiff has not adequately alleged the violation of

276
00:18:20,480 --> 00:18:23,880
the New York Penal Code. He insists that plaintiff is

277
00:18:24,039 --> 00:18:28,039
required to allege conduct which would constitute a sexual offense

278
00:18:28,359 --> 00:18:31,599
as defined in an article one hundred and thirty of

279
00:18:31,640 --> 00:18:35,680
the Penal Law. The argument relies heavily on the observation

280
00:18:35,799 --> 00:18:38,839
that plaintiff's claims would be time barred but for New

281
00:18:38,920 --> 00:18:43,119
York Child Victims Act, the CVA, which revived child abuse

282
00:18:43,160 --> 00:18:47,039
claims tied to an alleged violation of New York criminal law.

283
00:18:47,839 --> 00:18:50,799
Defendant's view of the pleading standard is at odds with

284
00:18:50,880 --> 00:18:54,920
the Federal Rules of Civil Procedure. Rule eight requires only

285
00:18:54,960 --> 00:18:58,319
a short and plain statement of the claim showing that

286
00:18:58,359 --> 00:19:02,240
the pleader is entitled to release. On the theory asserted here,

287
00:19:02,359 --> 00:19:05,960
the CVA does not create plaintiff's cause of action. She

288
00:19:06,079 --> 00:19:09,480
is required only to plead facts efficient to allege battery

289
00:19:09,799 --> 00:19:14,079
and iied. Whether any of the alleged conduct rose to

290
00:19:14,119 --> 00:19:17,119
a violation of New York penal law goes only to

291
00:19:17,160 --> 00:19:20,960
the question whether Miss Joffrey's claims or time barred, that is,

292
00:19:21,079 --> 00:19:24,839
to an affirmative defense. When defendant asserts such a defense,

293
00:19:25,160 --> 00:19:27,880
it will be his burden to establish that the claims

294
00:19:28,079 --> 00:19:32,799
are untimely. Whatever hurdles the CVA ultimately requires plaintiff to

295
00:19:32,839 --> 00:19:37,000
clear to defeat a statute of limitations defense are not relevant.

296
00:19:37,240 --> 00:19:42,599
On this motion. Three plaintiffs iied and battery claims are

297
00:19:42,640 --> 00:19:47,799
not duplicative. The defendant argues next that Miss Jeoffrey's ied

298
00:19:47,960 --> 00:19:51,599
claim should be dismissed as duplicative of her battery claim.

299
00:19:52,119 --> 00:19:54,920
He says this is so because, under well established New

300
00:19:55,000 --> 00:19:58,599
York law, claims are duplicative when both arise from the

301
00:19:58,640 --> 00:20:03,079
same facts and ce the identical damages for each alleged breach.

302
00:20:03,640 --> 00:20:08,680
But Miss Jeoffrey's claims do neither. Defendant's motion misunderstands the

303
00:20:08,720 --> 00:20:13,519
two causes of action. Plaintiffs iied claim arises at least

304
00:20:13,519 --> 00:20:16,839
in part from alleged conduct that forms no element of

305
00:20:16,839 --> 00:20:22,440
her battery claim. Miss Joffrey alleges, among other potentially distinguishing conduct,

306
00:20:22,759 --> 00:20:25,440
that the defendant caused her to witness the abuse of

307
00:20:25,480 --> 00:20:30,079
another victim. That allegation thus alleges injury flowing from different

308
00:20:30,119 --> 00:20:34,440
conduct than the alleged non consensual physical contact. As a

309
00:20:34,480 --> 00:20:37,920
claim is not duplicative where a plaintiff has set forward

310
00:20:38,160 --> 00:20:42,599
substantiating conduct that differs from other causes of action, her

311
00:20:42,680 --> 00:20:47,119
iied claim is not duplicative of her battery claim, regardless

312
00:20:47,119 --> 00:20:49,640
of what share of her injuries, if any, is due

313
00:20:49,640 --> 00:20:53,799
to battery committed against her person. Her miied claim therefore

314
00:20:54,079 --> 00:20:57,519
must be permitted at this stage to proceed because she

315
00:20:57,599 --> 00:21:02,400
has allegedly potentially tortious conduct in addition to battery. Moreover,

316
00:21:02,519 --> 00:21:06,640
the defendant admitted during an oral argument the single satisfaction

317
00:21:06,720 --> 00:21:11,359
rule would foreclose plaintiff from recovering more than once for

318
00:21:11,440 --> 00:21:15,000
any given harm. More substantially, the two claims do not

319
00:21:15,160 --> 00:21:19,880
seek identical relief. Even though plaintiff seeks damages on each claim,

320
00:21:20,160 --> 00:21:23,880
her requested relief does not entirely overlap. To be sure,

321
00:21:23,920 --> 00:21:27,799
Miss Jeoffrey asserts that the alleged battery caused some measure

322
00:21:27,839 --> 00:21:32,480
of extreme emotional distress and psychological trauma. But when drawing

323
00:21:32,519 --> 00:21:36,720
all inferences in Plaintiff's favor, the complaint pleads facts sufficient

324
00:21:37,039 --> 00:21:40,400
to allow a reasonable jury to return a damage's award

325
00:21:40,720 --> 00:21:43,880
on emotional distress that is over and above what it

326
00:21:43,960 --> 00:21:47,599
might award on battery. As it stands, any risk of

327
00:21:47,680 --> 00:21:51,759
duplicative recovery may be resolved by jury instructions. It is

328
00:21:51,799 --> 00:21:56,319
for these reasons that battery and iied claims routinely precede

329
00:21:57,079 --> 00:22:01,200
in tandem under New York Law three. The attack on

330
00:22:01,240 --> 00:22:04,640
the constitutionality of the New York Child Victims Act is

331
00:22:04,680 --> 00:22:07,920
without merit. The final ground on which defendant moves to

332
00:22:07,960 --> 00:22:12,279
dismiss the complaint is that the CVA claim revival provision.

333
00:22:12,519 --> 00:22:15,720
In other words, the limited extension of the statute of

334
00:22:15,759 --> 00:22:19,640
limitations for civil claims by child victims of sexual abuse

335
00:22:20,000 --> 00:22:24,279
is unconstitutional. Specifically, he argues that the New York State

336
00:22:24,359 --> 00:22:27,720
legislature violated the due process clause of the New York

337
00:22:27,720 --> 00:22:32,119
Constitution when it temporarily revived child sex abuse claims that

338
00:22:32,200 --> 00:22:35,880
otherwise would have been too late. Defendant is not the

339
00:22:35,920 --> 00:22:39,240
first litigant to advance this argument, which has been rejected

340
00:22:39,279 --> 00:22:42,319
by every New York State and federal court to have

341
00:22:42,440 --> 00:22:46,079
encountered it, and it has been rejected repeatedly for good reason.

342
00:22:46,880 --> 00:22:50,160
Drawing primarily on New York cases from the nineteen twenties

343
00:22:50,200 --> 00:22:53,839
and fifties, Defendant urges the nearly one hundred years of

344
00:22:53,880 --> 00:22:58,039
precedent make clear that claim revival is permitted only when

345
00:22:58,079 --> 00:23:00,319
there is an injustice of a type that makes a

346
00:23:00,319 --> 00:23:04,599
plaintiff legally unable to sue, whatever the historical practice may

347
00:23:04,599 --> 00:23:07,680
have been. The New York City Court of Appeals recently

348
00:23:07,720 --> 00:23:10,319
made clear that the test for whether a claim of

349
00:23:10,400 --> 00:23:13,599
revival statute runs a foul of the New York due

350
00:23:13,680 --> 00:23:17,440
process clause is simply whether the revival statute is a

351
00:23:17,480 --> 00:23:22,279
reasonable measure to address an injustice. The cva's limited claim

352
00:23:22,359 --> 00:23:26,119
revival window was a reasonable measure to address an injustice

353
00:23:26,440 --> 00:23:30,079
as well, within bounds of the new legal standard articulated

354
00:23:30,119 --> 00:23:33,559
shortly before its passage. As another judge of this Court

355
00:23:33,880 --> 00:23:37,799
recently concluded with respect to Miss Joffrey's pending action against

356
00:23:37,799 --> 00:23:42,359
mister Dershowitz, New York Court's historical skepticism of claim revival

357
00:23:42,400 --> 00:23:47,240
provisions appears to be just that historical claims for sexual

358
00:23:47,240 --> 00:23:50,640
abuse plaintiffs who have reached adulthood within the applicable three

359
00:23:50,720 --> 00:23:55,319
year statute of limitations. His argument fundamentally is that enforcing

360
00:23:55,359 --> 00:23:58,920
the usual statute of limitations to bar claims of child

361
00:23:58,960 --> 00:24:02,960
sex abuse causes no injustice where those who wished to

362
00:24:02,960 --> 00:24:06,000
sue were not barred from doing so solely because they

363
00:24:06,000 --> 00:24:09,240
were miners, in other words, where the victims became adults

364
00:24:09,480 --> 00:24:11,759
at a time when they could have brought suit before

365
00:24:11,799 --> 00:24:16,279
the statute of limitations period expired. The Court of Appeals, however,

366
00:24:16,559 --> 00:24:19,799
has made clear also that in the context of a

367
00:24:19,839 --> 00:24:23,079
claim revival statute, there is no principled way for a

368
00:24:23,160 --> 00:24:26,920
court to test whether a particular injustice is serious or

369
00:24:27,000 --> 00:24:31,599
whether a particular class of plaintiffs is blameless. Such moral

370
00:24:31,640 --> 00:24:36,400
determinations are left to the elected branches of government. As

371
00:24:36,440 --> 00:24:39,920
Miss Geoffrey notes in our opposition, a range of legislative

372
00:24:40,000 --> 00:24:45,079
judgments undergird the provisions patent constitutionality, both on its face

373
00:24:45,400 --> 00:24:49,200
and as applied to her claims. These include New York's

374
00:24:49,240 --> 00:24:54,839
comparatively restrictive limitations period for sexual abuse claims, improved understanding

375
00:24:54,880 --> 00:24:58,440
of victims, barriers to coming forward with those claims, and

376
00:24:58,480 --> 00:25:02,240
the eminent threat that abuser posed to public safety. Each

377
00:25:02,279 --> 00:25:05,519
of these is capable of insulating both the initial one

378
00:25:05,599 --> 00:25:09,000
year revival window and its subsequent extension from a New

379
00:25:09,079 --> 00:25:12,400
York Due process clause challenge, to say nothing of the

380
00:25:12,480 --> 00:25:16,880
latter's measure relationship to ensuring access to justice during a

381
00:25:16,920 --> 00:25:22,119
global pandemic. Defendant's most discernible objection is that the legislature

382
00:25:22,240 --> 00:25:26,559
hastily passed legislation to amend the CVA by doubling the

383
00:25:26,559 --> 00:25:30,319
claim revival period from one year to two. He contends

384
00:25:30,359 --> 00:25:33,519
that the legislature's one year extension was not a reasonable

385
00:25:33,559 --> 00:25:38,160
response in light of the Governor's near contemporaneous executive order

386
00:25:38,480 --> 00:25:41,599
extending the filing window by five months on account of

387
00:25:41,599 --> 00:25:45,079
COVID nineteen. He argues also that there is no indication

388
00:25:45,559 --> 00:25:48,480
that the New York Court of Appeals ever, has approved

389
00:25:48,799 --> 00:25:52,480
of a legislature's extension of the deadline for filing time

390
00:25:52,519 --> 00:25:56,960
barred claims in the middle of the original claim revival period,

391
00:25:57,000 --> 00:26:00,440
with or without a global pandemic. New York's model two

392
00:26:00,480 --> 00:26:04,640
year revival window was a reasonable measure for remedying injustice

393
00:26:04,640 --> 00:26:09,200
to victims without treading upon the state's constitution due process clause.

394
00:26:09,839 --> 00:26:12,920
Not only was it reasonable, it was modest compared to

395
00:26:13,000 --> 00:26:16,920
the claim revival measures adopted by other state legislatures in

396
00:26:16,960 --> 00:26:20,480
the child abuse context. Numerous states have opened to revival

397
00:26:20,519 --> 00:26:24,000
windows that were two years or longer from their inception,

398
00:26:24,400 --> 00:26:28,000
some of which were later extended for additional multi year periods.

399
00:26:28,640 --> 00:26:32,880
Other jurisdictions have enacted in definite claim revival windows, and

400
00:26:33,039 --> 00:26:35,880
in some states that have adopted an age based approach,

401
00:26:36,480 --> 00:26:39,640
MS Joffrey's claims would have remained timely for at least

402
00:26:39,640 --> 00:26:44,200
another decade. Certainly, each of those revival statutes was passed

403
00:26:44,240 --> 00:26:48,400
against the enacting state's unique constitutional backdrop, but each is

404
00:26:48,440 --> 00:26:51,519
relevant to show that the measures here selected by New

405
00:26:51,599 --> 00:26:54,559
York legislature were among the most tailored and the most

406
00:26:54,599 --> 00:26:58,200
mindful of the due process concerns defend and emphasizes in

407
00:26:58,279 --> 00:27:03,400
his motion, it is difficult to imagine more narrower measures

408
00:27:03,440 --> 00:27:08,400
capable of addressing the injustices animating the CVA. Indeed, our

409
00:27:08,440 --> 00:27:11,960
attention has not been called to any state or territory

410
00:27:12,160 --> 00:27:15,039
that ever has adopted a sexual abuse claim revival window

411
00:27:15,319 --> 00:27:20,160
shorter than one year. Defendant's observation that the CVA revived

412
00:27:20,160 --> 00:27:22,839
claims for those who suffered harm as a result of

413
00:27:22,839 --> 00:27:25,799
sexual battery when they were under age of eighteen when

414
00:27:25,839 --> 00:27:28,799
the New York age of consent for other purposes now

415
00:27:28,839 --> 00:27:33,160
is seventeen, does not bear on the cva's constitutionality. There

416
00:27:33,160 --> 00:27:36,160
are many ways a plaintiff may establish that a sexual

417
00:27:36,200 --> 00:27:40,279
act was committed without his or her consent. Such acts

418
00:27:40,319 --> 00:27:44,039
also may be non consensual on more than one legal theory.

419
00:27:44,920 --> 00:27:47,640
True lack of consent is established as a matter of

420
00:27:47,720 --> 00:27:50,640
law for individuals who are under the age of seventeen

421
00:27:50,960 --> 00:27:53,559
at the time of the offense, But the fact says

422
00:27:53,559 --> 00:27:57,160
nothing of the reasonableness of reviving claims of others who

423
00:27:57,240 --> 00:28:01,039
were over seventeen but less than eighteen when they were abused.

424
00:28:02,240 --> 00:28:05,039
Lack of consent in such cases can be established by

425
00:28:05,039 --> 00:28:09,880
at least physical force or actual or implied threats. Contrary

426
00:28:09,960 --> 00:28:13,839
to his assertion, defendant's concerns over false memories and other

427
00:28:13,960 --> 00:28:17,880
evidentiary matters are not always greater in cases in which

428
00:28:17,920 --> 00:28:21,839
the alleged victim claims that he or she acquiesced as

429
00:28:21,880 --> 00:28:25,240
a result of such duress. Even where a claimant can

430
00:28:25,359 --> 00:28:29,119
establish lack of consent as a matter of law, other evidence,

431
00:28:29,400 --> 00:28:33,680
including subjective evidence, often is required to prove the conduct

432
00:28:33,680 --> 00:28:38,319
that actually occurred. Defendant's far reaching speculation about what evidence

433
00:28:38,359 --> 00:28:41,440
will or will not be relevant to the issue of consent,

434
00:28:41,799 --> 00:28:44,480
both in this case and in others like It is

435
00:28:44,559 --> 00:28:48,680
no basis for distinguishing between claims brought by victims who

436
00:28:48,720 --> 00:28:52,000
were under seventeen and those who were under eighteen. The

437
00:28:52,079 --> 00:28:55,920
cva's creation of an arrow window for allowing previously time

438
00:28:56,000 --> 00:28:59,720
barred child sex abuse claims to proceed is neither more

439
00:29:00,079 --> 00:29:03,039
nor less reasonable for having set the upper age limit

440
00:29:03,200 --> 00:29:06,559
for those who benefit from the window at age eighteen,

441
00:29:06,960 --> 00:29:10,079
rather than setting it at the legal age of consent seventeen.

442
00:29:10,920 --> 00:29:16,039
Lacking persuasive legal authority which to question the CBA's constitutionality.

443
00:29:16,359 --> 00:29:22,319
Defendant's motion falls back onto doctrinal anachronism and in opposite

444
00:29:22,440 --> 00:29:26,720
authority on claim revival at common law. Accordingly, as another

445
00:29:26,799 --> 00:29:29,559
court in our circuit has put it, While his argument

446
00:29:29,640 --> 00:29:35,519
regarding unconstitutionality is creative, it is without merit. Part four.

447
00:29:35,759 --> 00:29:38,799
Defendant is not entitled to a more definite statement. He

448
00:29:38,839 --> 00:29:43,119
will get the detail he seeks during discovery. Defendant's alternative

449
00:29:43,200 --> 00:29:47,559
motion for a more definitive statement is similarly meritless, as

450
00:29:47,599 --> 00:29:51,559
defendant correctly observes, Rule twelve V affords relief where the

451
00:29:51,599 --> 00:29:55,519
complaint is so vague or ambiguous that the defendant cannot

452
00:29:55,519 --> 00:30:00,200
reasonably prepare a response. That rule, however, entitles movements to

453
00:30:00,240 --> 00:30:03,799
a more definite statement only when their complaint is so

454
00:30:03,960 --> 00:30:09,200
vague or ambiguous as to be unintelligible. Miss Jeffrey's complaint

455
00:30:09,240 --> 00:30:14,599
is neither unintelligible, nor vague nor ambiguous. It alleges discrete

456
00:30:14,599 --> 00:30:20,720
incidents of sexual abuse in particular circumstances at three identifiable locations.

457
00:30:21,039 --> 00:30:26,039
It identifies to whom it attributes that sexual abuse. Defendant

458
00:30:26,079 --> 00:30:29,920
nevertheless holds out that he cannot reasonably prepare a response

459
00:30:30,200 --> 00:30:34,400
because plaintiff has not described what purported sexual contact occurred,

460
00:30:34,680 --> 00:30:37,880
when and where the incident occurred, or the forcible compulsion

461
00:30:38,240 --> 00:30:41,559
she was under due to express or implied threat to

462
00:30:41,599 --> 00:30:45,440
the degree of specificity that he would like. While he

463
00:30:45,519 --> 00:30:49,880
understandably seeks more detail about the precise details of Plaintiff's claims,

464
00:30:50,039 --> 00:30:52,519
he will be able to obtain the detail during pre

465
00:30:52,680 --> 00:30:57,519
child discovery. Moreover, Defendant's assertion that he cannot reasonably prepare

466
00:30:57,519 --> 00:31:01,759
a response to plaintiff's allegations mainly contradicts the contents of

467
00:31:01,839 --> 00:31:05,400
his moving papers, in which he denies Miss Jeoffrey's allegation

468
00:31:05,799 --> 00:31:11,000
in no uncertain terms conclusion. For the foregoing reasons, Defendant's

469
00:31:11,000 --> 00:31:14,559
motion to dismiss the complaint or for a more definite

470
00:31:14,559 --> 00:31:18,480
statement is denied in all respects, given the court's limited

471
00:31:18,519 --> 00:31:21,880
task of ruling on this motion, Nothing in this opinion

472
00:31:22,039 --> 00:31:26,599
or previously in these proceedings properly may be construed as

473
00:31:26,640 --> 00:31:29,319
indicating a view with respects to the truth of the

474
00:31:29,440 --> 00:31:33,440
charges or counter charges, or as to the intention of

475
00:31:33,480 --> 00:31:36,599
the parties in entering into a two thousand and nine agreement.

476
00:31:36,960 --> 00:31:42,039
So ordered by Judge Caplan and dated January eleventh, twenty

477
00:31:42,079 --> 00:31:44,960
twenty two. All right, so that's going to wrap up

478
00:31:45,000 --> 00:31:48,000
our look at Judge Caplan's opinion here, and we're going

479
00:31:48,079 --> 00:31:50,319
to keep it moving. We're going to keep going through

480
00:31:50,400 --> 00:31:52,839
all of these core documents now that we're at a

481
00:31:52,880 --> 00:31:54,920
point where you know, it's slowed down a bit when

482
00:31:54,960 --> 00:31:59,119
it comes to Ebstein news in general. But these core documents,

483
00:31:59,440 --> 00:32:02,720
they are with all sorts of information that I know

484
00:32:02,839 --> 00:32:04,920
that all of you out there who are following this

485
00:32:05,039 --> 00:32:09,319
case are going to find not only interesting, but in

486
00:32:09,400 --> 00:32:13,119
many cases jaw dropping. So we're going to keep going

487
00:32:13,119 --> 00:32:15,000
through them. The next one we're going to look at

488
00:32:15,200 --> 00:32:19,599
is Jeffrey Epstein's will and testament. All of the information

489
00:32:19,680 --> 00:32:22,519
that goes with this episode can be found in the

490
00:32:22,599 --> 00:32:23,440
description box.