DELGADO v. Jason Miller, Defendant-Appellant. (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered February 3, 2025, which, to the extent appealed from, denied so much of defendant Jason Miller's motion as sought to dismiss the causes of action for sexual assault and battery (third cause of action), violation of the Victims of Gender–Motivated Violence Act (fourth cause of action), and intentional infliction of emotional distress (IIED) (seventh cause of action) as against him, unanimously modified, on the law, to grant the motion insofar as it sought to dismiss the cause of action for IIED to the extent that the alleged acts underlying the claim occurred in Nevada, and otherwise affirmed, without costs.

Supreme Court correctly found that it had personal jurisdiction over Miller.  New York's long-arm statute empowers courts to exercise specific “personal jurisdiction over any non-domiciliary ․ who, in person or through an agent ․ commits a tortious act within the state” (CPLR 302[a][2] ).  Plaintiff's complaint sufficiently alleged that Miller committed tortious conduct in New York. Even if it was insufficient, the allegations in the amended complaint, which gave greater specifics concerning the time and place of the New York assaults, related back to the original complaint for statute of limitations purposes (see CPLR 203[f];  O'Halloran v. Metropolitan Transp.  Auth., 154 AD3d 83, 87 [1st Dept 2017] ).

Supreme Court also correctly denied Miller's motion to dismiss plaintiff's cause of action for IIED, insofar as the underlying acts occurred in New York. Contrary to Miller's argument, plaintiff's IIED claims are not premised upon a continuing wrong.  They are based upon multiple incidents of alleged rape, each of which is independently actionable.  Thus, in this case, each occasion giving rise to plaintiff's IIED claims has its own date of accrual (see Wilson v. Erra, 94 AD3d 756, 756 [2d Dept 2012] ).  Aronitz v. PricewaterhouseCoopers LLC (27 AD3d 393, 394 [1st Dept 2006] ), cited by Miller, did not involve allegations of rape, assault, and battery as alleged here and is therefore distinguishable and inapplicable to this case.  CPLR 202 applies to those acts that allegedly occurred in Nevada, which are untimely under Nevada's two-year statute of limitations (see S.H. v. Diocese of Brooklyn, 205 AD3d 180, 195 [2d Dept 2022] ).  CPLR 202 does not apply to those incidents that allegedly occurred within New York, which are timely under the Adult Survivor Act (CPLR 214–j).  Moreover, plaintiff's allegations of repeated violent assaults by Miller in New York were sufficiently pleaded to survive dismissal (see Brown v Riverside Church in the City of N.Y., 231 AD3d 104, 109–110 [1st Dept 2024] ).

Plaintiff's causes of action for assault and battery as against Miller are likewise not part of a single continuing tort but rather allege multiple discrete and independent torts that accrued at the place and time of each alleged assault (see Palker v. MacDougal Rest. Inc., 96 AD3d 629, 630 [1st Dept 2012] ).  The motion court therefore correctly found that those assaults that occurred in New York accrued in New York and are timely under CPLR 214–j (see Kidder v. Hanes, 2023 WL 361200, *8, 2023 US Dist LEXIS 11126, *20–21 [WD NY, Jan. 23, 2023, 21–CV–1109S];  Abdullajeva v. Club Quarters, Inc., 1996 WL 497029, *7, 1996 US Dist LEXIS 12805, *21 [SD NY, Sept. 3, 1996, No. 96 CIV. 0383 (LMM)]).

Plaintiff's custody and child support case in Florida does not operate to bar this action against Miller for his alleged mistreatment of plaintiff under the doctrine of res judicata, as the two actions are not coterminous (see Xiao Yang Chen v. Fischer, 6 NY3d 94, 101–102 [2005] ).  In addition, the suit in Florida between the parties did not involve a claim of parentage, and Miller voluntarily relinquished complete custody to plaintiff with no visitation schedule requested.

The cause of action for violation of the Victims of Gender–Motivated Violence Act against Miller was sufficiently pleaded because allegations that Miller raped plaintiff satisfy the impact and gender-motivated animus requirements (see Breest v. Haggis, 180 AD3d 83, 94 [1st Dept 2019] ).  Miller's preemption argument is unpreserved for our review, and we decline to review it (see Geron v. DeSantis, 89 AD3d 603, 604 [1st Dept 2011] ).