Upon the following papers numbered 1 to 89 read on this motions to dismiss;Notice of Motion/Order to Show Cause and supporting papers 1-18 (#01), 35-38 (#02), & 59-71 (#03);Answering Affidavits and supporting papers 19-26 (#01), 39-49 (#02). & 72-81 (#03);Replying Affidavits and supporting papers 27-34 (#01), 50-58 (#02), & 82-89 (#03);it is, In this action defendant Allan Concepcion moves for an order pursuant to CPLR 3211(a) (5) and (7) dismissing the first and fourth causes of action against him as time barred, or alternatively, dismissing the first cause of action for failure to state a cause of action. Defendant Long Island Fury Volleyball Club, hereinafter referred to as “LIFVC”, separately moves for an order pursuant to CPLR 3211(a)(7) dismissing the first and second causes of action for failure to state a cause of action. Defendant Dayle A. Brenner separately moves for an order pursuant to CPLR 3211(a) (7) dismissing the first, second and third causes of action for failure to state a cause of action. Plaintiff opposes these applications in all respects.Plaintiff in this action seeks recovery of damages for four causes of action. The first cause of action is for breach of fiduciary duty against defendants Concepcion, LIFVC, and Brenner. The second cause of action is for negligent infliction of emotional distress against defendants LIFVC and Brenner. The third cause of action is for professional malpractice against defendant Brenner. The fourth cause of action is for sexual assault and misconduct against defendant Concepcion. The plaintiff previously commenced a civil rights action on July 22, 2016 in the United States District Court for the Eastern District of New York. The federal causes of action were dismissed and the Court declined to exercise supplemental jurisdiction over the state law causes of action but did indicate that “the statute of limitations for any state law claims timely filed in this Court is tolled for a period of thirty (30) days after the date of this order”, by Order dated October 18, 2017, (Feuerstein, J.). The plaintiff then commenced this action on November 16, 2017. The plaintiff claims that between January 2013 and April 2013 she had a sexual relationship with defendant Concepcion. Two of the dates on which the plaintiff claims they had sexual relations were during volleyball tournaments set up by defendant LIFVC where plaintiff and defendant Concepcion stayed with the volleyball team at hotels. The plaintiff was seeing defendant Brenner for therapy for several years before these incidents. The plaintiff alleges that sometime in early February 2013 she advised defendant Brenner that she was having a sexual relationship with defendant Concepcion, who was her assistant coach at the time for her travel volleyball team with LIFVC. The plaintiff claims that after she discussed the sexual relationship with defendant Brenner, Brenner encouraged her to tell her parents or that she would advise them of the relationship. The plaintiff advised her parents of the sexual relationship in April 2013. Defendant Concepcion was arrested in April 2013 based upon the underlying allegations contained in this complaint and pled guilty on April 4, 2014 to Endangering the Welfare of a Child. He was sentenced on July 11, 2014. The plaintiff’s birthday is in early February 1996. Defendant Brenner claims that at the time that the plaintiff advised her of the relationship with Concepcion she was already seventeen years old and had reached the age of consent for sexual activity.To succeed on a motion to dismiss pursuant to CPLR 3211(a) for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, plaintiff can succeed upon any reasonable view of the facts stated (Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 754 NE2d 184, 729 NYS2d 425 [2001]; see also Fowler, Rodriguez, Kingsmill, Flint, Gray & Chalos LLP v. Island Prop., LLC, 307 AD2d 953, 763 NYS2d 481 [2d Dept 2003], Bartlett v. Konner, 228 AD2d 532, 644 NYS2d 550 [2d Dept 1996]). If the pleading states a cause of action and if, from its four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail (see Wayne S. v. County of Nassau Dept. of Social Services, 83 AD2d 628, 441 NYS2d 536 [2d Dept 1981]). The documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see Estate of Menon v. Menon, 303 AD2d 622, 756 NYS2d 639 [2d Dept 2003], citing Leon v. Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 638 NE2d 511, Roth v. Goldman, 254 AD2d 405, 406, 679 NYS2d 92).In the context of a CPLR 3211 motion to dismiss, the Court must take the factual allegations of the complaint as true, consider the affidavits submitted on the motion only for the limited purpose of determining whether the plaintiff has stated a claim, and in the absence of proof that an alleged material fact is untrue or beyond significant dispute, the Court must not dismiss the complaint (Wall Street Assocs. v. Brodsky, 257 AD2d 526, 684 NYS2d 244 [1st Dept 1999], citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275; Rovello v. Orofino Realty Co., 40 NY2d 633, 634-636). In making a determination whether the complaint sets forth a cognizable claim, evidentiary material may be considered to “remedy defects in the complaint” (see Dana v. Shopping Time Corp., 76 AD3d 992, 908 NYS2d 114 [2d Dept 2010], quoting Rovello v. Orofino Realty Co., supra at 40 NY2d at 636).Motion to Dismiss by Defendant ConcepcionCPLR §213-b statesNotwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime or (2) convicted of a specified crime as defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law which is the subject of such action for any injury or loss resulting therefrom within ten years of the date the defendant was convicted of such specified crime, (Emphasis added)The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has pled a cause of action for breach of fiduciary duty cognizable at law as against defendant Concepcion. The causes of action against defendant Concepcion are not time barred as the plaintiff has shown that she was the victim of a crime which is the subject of this action and the action was commenced within seven years of the date of the crime which is January to April 2013. Therefore defendant Concepcion’s motion to dismiss is denied.The court notes that the motion to dismiss for lack of personal jurisdiction was withdrawn by stipulation dated March 22, 2018.Defendant Concepcion shall serve his answer within thirty (30) days from service of a copy of this order.Motion to Dismiss by Defendant LIFVC“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct”. (Nachbar v. Cornwall Yacht Club, __ AD3d __, 2018 NY Slip Op 02795, *2 [2018]; see also Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 921 N.Y.S.2d 260; Rut v. Young Adult Inst., Inc., 74 AD3d 776, 901 N.Y.S.2d 715)The Court in Nachbar v. Cornwall Yacht Club, __ AD3d __, 2018 NY Slip Op 02795, *2 [2018], held thatHere, however, the complaint did not allege that the Club defendants failed to act in good faith on behalf of the Club or its members’ collective interests, but merely alleged that they failed to act in Nachbar’s personal best interest (cf. Pebble Cove Homeowners’ Ass’n v. Shoratlantic Dev. Co., 191 AD2d at 545; see also Straus v. 345 E. 73 Owners Corp., 181 A.D.2d 483, 581 N.Y.S.2d 185). Accordingly, the complaint did not state a cause of action to recover damages for breach of fiduciary duty…As to the cause of action alleging intentional infliction of emotional distress, the complaint did not allege conduct “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” (Murphy v. American Home Prods. Corp., 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232, quoting Restatement [Second] of Torts §46, comment d; see Klein v. Metropolitan Child Servs., Inc., 100 AD3d 708, 710-711, 954 N.Y.S.2d 559; cf. Matter of Leff v. Our Lady of Mercy Academy, 150 AD3d 1239, 55 N.Y.S.3d 392; Sawicka v. Catena, 79 AD3d 848, 849-850, 912 N.Y.S.2d 666). The cause of action alleging negligent infliction of emotional distress also failed because the complaint did not sufficiently allege a duty to Minutolo, who was not a member of the Club, and further lacked the requisite “guarantee of genuineness” (Ornstein v. New York City Health & Hosps. Corp., 10 NY3d 1, 6, 881 N.E.2d 1187, 852 N.Y.S.2d 1; see generally Taggart v. Costabile, 131 AD3d 243, 252-253, 14 N.Y.S.3d 388).The Court in C.T. v. Val. Stream Union Free Sch. Dist., 201 F. Supp 3d 307, 327-328 [EDNY 2016], held that“A claim for negligent infliction of emotional distress cannot be asserted if it is ‘essentially duplicative of tort or contract causes of action.’” Virgil v. Darlak, No. 10-CV-6479P, 2013 U.S. Dist. LEXIS 110411, 2013 WL 4015368, at *10 (W.D.N.Y. Aug. 6, 2013) (quoting Djangmah v. Falcione, 2013 U.S. Dist. LEXIS 13597, 2013 WL 208914, *9 (S.D.N.Y. Jan. 18, 2013)); Moore v. City of New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y. 2002) (“The New York Court of Appeals has strongly cautioned against allowing emotional distress claims to be brought where other tort remedies are available.” (citing Fischer v. Maloney, 43 N.Y.2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (N.Y. 1978))).Plaintiffs contend that defendants “owed JT…a special duty of care to be free from physical harm or threats of physical harm while at school, and to be free from harassment by teachers and students,” but breached this duty by permitting a continuous pattern of bullying and harassment, causing J.T. severe emotional distress. (See Pls.’ Second Am. Compl.
