In Pacheco v. Kukaj, No. 158029/2024, 2025 WL 2256864 (N.Y. Sup Ct, New York County Aug. 05, 2025), the court denied defendant’s motion to dismiss plaintiff’s cause of action asserted under Victims of Violent Crime Protection Act, N.Y.C. Administrative Code § 10-401 et seq.
From the decision:
Under CPLR § 3211(a)(7), a “party may move for judgment dismissing one or more causes of action asserted against him on the ground that… the pleading fails to state a cause of action.” When considering a CPLR § 3211 motion to dismiss the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Taxi Tours Inc. v Go N.Y. Tours, Inc., Inc., 41 NY3d 991, 993 [2024]). Whether plaintiff can ultimately establish entitlement to the relief sought is beyond the purview of a motion to dismiss for failure to state a claim (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).
Administrative Code § 10-402 defines a Crime of Violence as “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law….if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.”
Nuradin argues that the pleadings fail to state a cognizable cause of action against him and that the complaint is missing mandatory elements of a claim brought pursuant to Administrative Code § 10-402 because it does not allege that the conduct presented a serious risk of physical injury and that he is entitled to dismissal pursuant to CPLR 3211(a)(7).
Defendant Nuradin’s motion to dismiss under Administrative Code 10-402 must be denied. All plaintiff needs to do to survive dismissal is allege a prima facie cause of action for Crime of Violence, which he has done. In the complaint, Pacheco alleges that Nuradin intentionally, willfully and maliciously committed a crime of violence against plaintiff when he sexually abused plaintiff in or about September 2022 and that “plaintiff suffered and continues to suffer physical and emotional injuries including severe mental anguish, humiliation and physical and emotional distress.” The fact that Nuradin disputes the gravity of plaintiff’s injuries is insufficient to warrant the relief defendant Nuradin seeks.
Accordingly, the court held that plaintiff’s claim may proceed.