NDA Precludes Lawsuit
Dismissal on motion was properly granted to defendant Leon Black in light of a non-disclosure agreement between the parties, according to a decision of the New York Appellate Division for the First Judicial Department
…plaintiff here received approximately $9 million dollars in benefits from defendant since signing the NDA. During that time, the only contacts between the parties were the ones that plaintiff and her attorney initiated to request a copy of the NDA. We recognize the trauma attendant upon sexual abuse, which was the reason for the Legislature’s extension of the statute of limitations for civil actions. However, we disagree with the dissent that the same principle should allow plaintiff to repudiate a contractual arrangement after accepting its benefits for over five years.
We also disagree with the dissent that plaintiff was able to speak out in 2021 only after attending law school “and becoming educated about issues of consent.” As set forth in the complaint, in 2020, plaintiff was advised by retained counsel regarding the NDA and, in 2019, plaintiff confronted defendant via text message about the abusive and nonconsensual nature of the relationship, explicitly stating that “I was forced to sign [the NDA] under duress.
GESMER, J. (dissenting)
I respectfully dissent. I would find that plaintiff has sufficiently pleaded that she was acting under duress when she executed the nondisclosure and release agreement (NDA) on or about October 18, 2015, that she remained “under the same continuing duress” until at least March 17, 2021, that her actions taken under duress cannot constitute ratification (Yoon Jung Kim v An, 150 AD3d 590, 593 [1st Dept 2017], quoting Sosnoff v Carter, 165 AD2d 486, 492 [1st Dept 1991]), and that she timely acted to disaffirm the NDA (Yoon Jung Kim, 150 AD3d at 593) when she commenced this action in June 2021. Accordingly, I would modify the motion court’s order to deny the motion to dismiss plaintiff’s causes of action for defamation per se and her claim under the Victims of Gender-Motivated Violence Protection Law (Administrative Code of the City of NY § 10-1104), and otherwise affirm.
On a motion to dismiss, we accept the allegations in the complaint as true, view them in the light most favorable to the party opposing dismissal, and give her the benefit of any reasonable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).
The allegations
Here, plaintiff’s complaint includes the following factual allegations. Throughout the years of their relationship, defendant “physically, mentally and emotionally abused” plaintiff, by, among other things, committing repeated acts of sexual abuse. His violent behavior toward her caused plaintiff to experience that he “exert[ed] complete physical, mental and emotional control” over her. She feared defendant “[a]t all times,” “even when not in his physical presence.” In 2014, he raped her. Soon afterwards, she left the United States with her son. During the time she was outside of the United States, defendant repeatedly contacted her and described her whereabouts, actions, and people she had been with, letting her know that he was able to track her movements. Specifically, she alleged that “[n]o matter the physical distance between them, [plaintiff] never stopped feeling threatened by [defendant] and his power and control over her.” In 2015, hoping to find a way to “be able to live her life without his continued involvement,” plaintiff returned to New York and asked to meet with defendant. They met several times. During these meetings, defendant insisted that she enter into an arrangement under which he would pay her money and forgive loans he had made to her in return for her silence about his treatment of her. Defendant also told plaintiff that he wanted her to accept the money from him and say that she was “blackmailing” him. At first, she resisted because she only wanted defendant’s “harassment of and control over her to stop.” However, defendant was “relentless” and urged her to accede to his wishes, threatening that, if she did not, something “horrible” would happen to her or her child. Ultimately, she signed the NDA in or about October 2015 because she believed that “refusing . . . was not an option. [Defendant] reminded [plaintiff] that if she did not take the ‘deal’ . . . he would make sure she ended up ‘in prison’ or he would ‘destroy her life’” and he “threatened [her] safety if she did not agree.” Plaintiff further alleges that she was “nervous and had difficulty understanding” the document defendant had her sign. He did not give her a copy.
Conclusion
Whether plaintiff can establish at trial or on a post discovery summary judgment motion that defendant abused and sexually assaulted her and that his treatment of her was, as she claims, designed to and in fact did instill in her a sense of fear and helplessness that “preclud[ed] the exercise of [her] free will” (Yoon Jung Kim, 150 AD3d at 593), even during a period when she had no direct contact with defendant, is a question for the factfinder. Accordingly, I respectfully dissent.
Reuters reported on a lawsuit involving the plaintiff and her former law firm