Opinion
18-CV-6110 (PGG) (OTW)
04-11-2024
JANE DOE, Plaintiff, v. MUTAZ HYASSAT, Defendant.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. Introduction
This action is before me for a Report and Recommendation (“R&R”) on damages after a default entered against Defendant Mutaz Hyassat on Plaintiff's claims of battery, assault, intentional infliction of emotional distress, and false imprisonment. (ECF 69). Plaintiff filed her proposed findings of fact and conclusions of law, as well as declarations and a memorandum of law in support of the requested damages and fees. (ECF 73). Defendant did not respond. Plaintiff requests $1,250,000 in compensatory damages and $1,250,000 in punitive damages for a total award of $2,500,000. (ECF 73 at 15). For the reasons set forth below, I recommend that the Court award compensatory damages to Plaintiff in the amount of $1,250,000 and punitive damages in the amount of $1,250,000 for a total award of $2,500,000, and postjudgment interest pursuant to 28 U.S.C. § 1961(a) .
II. Background
A. Facts
The following facts, which are drawn from Plaintiff's complaint, are deemed established for the purposes of determining damages to which she is entitled. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in [her] favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
Defendant is a Jordanian national and career diplomat who was previously employed by the Permanent Mission of Jordan to the United Nations in New York City. Doe v. Hyassat, 342 F.R.D. 53, 55 (S.D.N.Y. 2022). Beginning in 2013, Defendant led a team focused on drugs and crime at the United Nations office in Vienna, Austria. (ECF 77-1 ¶ 5). On or around July 2, 2017, Defendant contacted Plaintiff through a professional networking site for civil servants. (ECF 73 ¶ 2). Defendant invited Plaintiff to dinner. (ECF 73 ¶ 3). Plaintiff agreed because she “thought it would be a great networking opportunity, especially since he had asked [her] to meet,” and she wanted to learn more about a United Nations (“UN”) committee that Defendant had served on, and which she was interested in. (ECF 73 ¶ 4; ECF 77-1 ¶ 8). On July 7, 2017, Plaintiff met Defendant for dinner at a restaurant in New York City named El Rio Grande. (ECF 73 ¶ 6). At dinner, Defendant made a number of unprompted, sexually-charged comments that made Plaintiff uncomfortable, including telling Plaintiff “she should show more cleavage” and commenting on the size of his genitalia. (ECF 73 ¶ 7). Defendant ordered a “pink drink” at dinner, and offered Plaintiff a sip of the drink, which she accepted. (ECF 73 ¶ 8). After dinner, Defendant kissed Plaintiff. (ECF 73 ¶ 9). Following this kiss, Plaintiff does not remember any of the rest of the evening. (ECF 73 ¶ 10). Prior to this evening, Plaintiff had not experienced memory loss. (ECF 73 ¶ 10).
The following morning, Plaintiff woke up in a Manhattan apartment undressed and in bed with Defendant, who was also undressed, and noticed a pain in her stomach. (ECF 73 ¶ 1112). Plaintiff told Defendant she did not remember anything that happened after dinner the previous night, and Defendant responded to the effect that he “wouldn't if someone is drunk” and “would have used a condom anyhow.” (ECF 73 ¶ 13). Without Plaintiff's consent, Defendant then attempted to penetrate Plaintiff anally, and when Plaintiff started to look for her clothes, Defendant attempted to put his erect penis in her mouth. (ECF 73 ¶ 14-15). Plaintiff pushed Defendant away. (ECF 73 ¶ 15). Defendant then walked Plaintiff to the subway, where they separated. (ECF 73 ¶ 16).
Plaintiff is devoutly religious and had not engaged in sex before marriage. (ECF 73 ¶ 1).
Plaintiff returned to her home in New Jersey, where she slept for most of the weekend. (ECF 73 ¶ 17). When she awoke briefly, she noticed bleeding from her vagina, and also noticed she was sore in her upper inner thighs. (ECF 73 ¶¶ 18-19).
Plaintiff determined, based on conversations with doctors and other knowledgeable individuals, that she had been drugged with a synthetic “date-rape” drug such as GammaHydroxybutyric Acid (“GHB”) or Rohypnol, then raped and sexually assaulted by Defendant. (ECF 73 ¶¶ 21-22; ECF 77-1 ¶¶ 51-52). On July 11, 2017, Plaintiff went to a hospital where she was examined and took a rape kit. (ECF 73 ¶ 23). Plaintiff later learned that the DNA found in her underwear was a match to Defendant's DNA. (ECF 73 ¶ 24).
As a result of the rape and sexual assault, Plaintiff has suffered significant physical injuries and emotional distress. Plaintiff was diagnosed with herpes keratitis (herpes affecting the eye) and bacterial vaginosis, both of which she believes she contracted from Defendant. (ECF 73 ¶ 26; ECF 77-1 ¶ 59). As a result of her herpes keratitis, Plaintiff has experienced significant and serious problems with her left eye, including vision loss, chronic pain, and excessive tearing, requiring expensive treatments and frequent doctors' visits. (ECF 73 ¶¶ 2729). Plaintiff has been diagnosed with a corneal ulcer, an inflammation of the cornea that can lead to permanent blindness, and will require a corneal transplant to partially restore her vision. (ECF 73 ¶¶ 28-29). Plaintiff has also been diagnosed with a traumatic brain injury, attributed to Defendant's assault, and experienced debilitating neurological symptoms and emotional distress, including severe weight loss, panic attacks, nightmares, memory loss, difficulty concentrating, difficulty speaking, and post-traumatic stress disorder (“PTSD”) affecting her career and her personal relationships. (ECF 73 ¶¶ 31-32).
B. Inquest Submissions
On February 8, 2023, Judge Gardephe referred the case to me to conduct an inquest into damages. (ECF 73 ¶ 45; see also ECF 70 (order of reference)). Following the referral, I directed Plaintiff to file proposed findings of facts and conclusions of law and a memorandum of law concerning her damages as to Hyassat, and to serve those submissions on Hyassat. (ECF Nos. 71; 73 ¶ 46; 78).
Plaintiff submitted a sworn affidavit outlining the details contained in her complaint. See ECF 77-1. In addition to the lasting physical harm of the assault, Plaintiff detailed the devastating emotional and mental suffering the assault caused. “Everything in my life is demarcated as pre-rape or post-rape.” Id. ¶ 91. She stated that she is “not the person [she] was before the rape and sexual assault.” Id. ¶ 70. She stated that she is “permanently damaged, both physically and mentally” and that “[t]he impacts of the attack interfere with [her] daily life and prevent [her] from achieving what used to come so easily. Id. She detailed the extensive physical and emotional effects of the assault, including, but not limited to, depression, post-traumatic stress disorder, anxiety, and suicidal ideation. Id. ¶¶ 81, 84, 97. She stated that she has not dated since the assault. Id. ¶ 86. She stated that she “ha[s] recurring nightmares of being attacked by men” and “now sleep[s] in the same bed as [her] mother, primarily out of deep sadness.” Id. ¶ 82.
Plaintiff also described the constant pain and discomfort she suffers from due to her eye condition. She has “suffered permanent vision loss,” has a “visible and permanent scar on the eye,” and her “cornea is extremely thin, placing it in greater danger of a corneal melt[.]” Id. ¶ 59. She stated that she is “reminded of the fact that Defendant raped and sexually assaulted [her]” every time she sees the scar in her eye. Id. ¶ 60. She has been told by doctors that “the visible scar will forever remain and [she] will never get back the vision that [she] lost.” Id. To avoid complete blindness, she takes medications that have severe side effects, such as chronic headaches, and the growth of a cataract in the damaged eye. Id. ¶ 62. She stated that:
I feel as though I cannot win: I can either take the medication, but suffer from chronic headaches and the continued growth of a cataract in my damaged eye-possibly losing my vision because of the cataract, or I can choose to not take the medication, but run the risk that my eye will nevertheless worsen without this necessary treatment.Id.
Since the rape and sexual assault, Plaintiff stated that her work has deteriorated significantly. She was asked to take a month of paid leave in November 2017 “due to declining productivity and the fact that [she] was unable to function properly with respect to my day-today tasks.” Id. ¶ 72. After returning from leave, “[her] job performance significantly deteriorated as a result of the injuries sustained during Defendant's attack” due to both physical and emotional difficulties. Id. ¶ 74. Between paid leave and sick days, she has taken approximately 312 days off from work. Id. ¶ 76. She stated that she “do[es] not know if [she] will ever be able to excel professionally in the ways [she] had hoped, despite [her] ambitions and work ethic,” and “continue[s] to be much less efficient at work now[.]” Id. ¶¶ 76-77. Her “verbal processing and communicating speed is also noticeably slower.” Id. ¶ 78.
Plaintiff stated: “I feel as I have been living in purgatory and have been haunted ever since the dinner when my life was forever changed. It is so difficult to live through this.” Id. ¶ 98.
III. Discussion
A. Standard of Review
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)), report and recommendation adopted, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [her] entitlement to recovery.” Id. at *3 (alterations omitted). “There must be an evidentiary basis for the damages sought by [a] plaintiff, and a district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citing Fed.R.Civ.P. 55(b)(2)).
“Compensatory damages recoverable for sexual assault . . . include compensation for the injury itself, [and] conscious pain and suffering[,] including mental and emotional anxiety[,] which can be based on the plaintiff's subjective testimony .... ” Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Saudi Oger Ltd., No. 13-CV-571, 2017 WL 4541426, at *3 (S.D.N.Y. Oct. 10, 2017) (citation and internal quotation omitted). “Punitive damages are appropriate under New York law where ‘the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him.'” Walker v. Sheldon, 10 N.Y.2d 401, 404 (1961) (citation omitted). “The Court must ensure that the punitive damages it awards are ‘fair, reasonable, predictable, and proportionate.' ” Doe v. Green, No. 17-CV-1765 (RA) (OTW), 2021 WL 2188534, at *8 (S.D.N.Y. Apr. 29, 2021), report and recommendation adopted, 2021 WL 2188148 (S.D.N.Y. May 28, 2021) (citing Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013)) (internal quotation marks omitted).
B. Analysis
1. Compensatory Damages
In light of Plaintiff's declaration and the record before the Court, Plaintiff should be awarded $1,250,000 for her non-economic injuries: the physical harm inflicted on her and her emotional distress. While no amount of money can justly compensate Plaintiff for what she has suffered, this damages award is consistent with awards in similar cases and thus is fair and reasonable compensation for the harm she experienced as a result of Hyassat's assault.
“As the Supreme Court has noted, the crime of sexual assault is inherently violent in nature and, even if not accompanied by violence, may inflict serious psychological damage on the victim.” Offei v. Omar, No. 11-CV-4283 (SAS) (MHD), 2012 WL 2086294, at *5 (S.D.N.Y. May 18, 2012), report and recommendation adopted, 2012 WL 2086356 (S.D.N.Y. June 8, 2012) (citing Coker v. Georgia., 433 U.S. 584, 597-98 (1977)). The Coker court stated that:
Short of homicide, [sexual assault] is the ultimate violation of self. It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Although sexual assault] is very often accompanied by physical injury to the [victim, it] can also inflict mental and psychological damage.Coker, 433 U.S. at 597-98 (internal quotations omitted).
Although “the law does not provide a precise formula by which pain and suffering and emotional distress may be properly measured and reduced to monetary value[,] . . . [the] Court is assisted in this endeavor by reviewing the precedents.” Mathie v. Fries, 935 F.Supp. 1284, 1305 (E.D.N.Y. 1996), aff'd in part and remanded in part, 121 F.3d 808 (2d Cir. 1997). As Judge Sweet has observed, “[c]ourts in this Circuit and State have upheld large compensatory damage awards for sexual assault and rape victims, yet interestingly, such awards vary drastically - even where cases share similar facts.” Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Saudi Oger Ltd., No. 13-CV-571 (RWS), 2017 WL 4541426, at *4 (S.D.N.Y. Oct. 10, 2017) (canvassing cases). Ultimately, although “damage awards in analogous cases provide an objective frame of reference, . . . they do not control the Court's assessment of individual circumstances.” Id. (quoting Moore v. M/V Angela, 353 F.3d 376, 384 (5th Cir. 2003)) (alterations omitted).
As detailed more fully above, Plaintiff submitted a sworn declaration describing the rape and sexual assault by Hyassat and the pain and suffering she has endured as a result. (ECF 771).
Plaintiff has provided the Court with several cases in support of the requested award of $1,250,000 in compensatory damages for injuries suffered as a result of a sexual assault. See ECF 74 at 11-12 (citing Schneider v. Nat'l R.R. Passenger Corp., 987 F.2d 132, 134, 137-38 (2d Cir. 1993) ($1.75 million jury award); Splawn v. Lextaj Corporation, NV, 197 A.D.2d 479 (1st Dep't 1993) ($1.8 million for past pain and suffering and $200,000 for future pain and suffering); Doe v. HRH Prince Abdulaziz bin Fahd Alsaud, Saudi Oger Ltd., and Mustapha Ouanes, No. 13-CV-571 (RWS), 2017 WL 4541426 (S.D.N.Y. Oct. 10, 2017) ($1.25 million award); Noonan v. Becker, No. 14-CV-4084 (LTS) (JLC), 2018 WL 1738746, at *4, *7 (S.D.N.Y. Apr. 10, 2018), report and recommendation adopted, 2018 WL 2088279 (S.D.N.Y. May 3, 2018) ($1 million in compensatory damages); Estevez-Yalcin v. The Children's Village, No. 01-CV-8784 (KMK), 2007 WL 2746807 (Sept. 20, 2007) ($500,000 award to each plaintiff). See also Carroll v. Trump, --- F.Supp.3d ---, 2023 WL 4612082, at *21 (July 19, 2023) ($2 million compensatory damages award for sexual assault claim “falls within a reasonable range of the amounts awarded to plaintiffs in comparable sexual assault and rape cases.”). Plaintiff has also provided the Court with several cases in which plaintiffs were awarded substantial compensatory damages that are lower than the amount requested here, but for sexual assaults that did not involve penetration. Doe v. Green, No. 17-CV-1765 (RA) (OTW), 2021 WL 2188534 (S.D.N.Y. Apr. 29, 2021), report and recommendation adopted, 2021 WL 2188148 (S.D.N.Y. May 28, 2021) ($350,000 in compensatory damages); Offei v. Omar, No. 11-CIV-4283 (SAS) (MHD), 2012 WL 2086294 (S.D.N.Y. May 18, 2012), report and recommendation adopted, 2012 WL 2086356 (S.D.N.Y. June 8, 2012) ($250,000 in compensatory damages).
I have reviewed the cases submitted by Plaintiff and find that, although Plaintiff's case is distinguishable from the cases above in some respects, her case shares a substantial number of similarities with each of them. For example, like the plaintiff in Schneider, Plaintiff has suffered from depression, PTSD, impaired vision, and impaired cognitive ability as a result of sexual assault. 987 F.2d at 134, 137-38. Like the plaintiff in Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Plaintiff was drugged, raped, and sexually assaulted in a very similar factual scenario to the facts here. 2017 WL 4541426, at *4, *7. Like the plaintiff in Noonan, Plaintiff suffers from severe PTSD, depression, and anxiety affecting her ability to function at work as a result of a sexual assault. 2018 WL 1738746, at *5. And, like the plaintiffs in Doe and Noonan, Plaintiff has mental and physical injuries that are permanent and will require extensive care and treatment into the future. See also Doe v. United States, 2018 WL 2431774, at *9 (D. Ariz. May 30, 2018) (awarding $2.5 million in compensatory damages for sexual assault causing “extreme suffering, anxiety, and physical and emotional pain that are reasonably probable to be experienced in the future as a result of the injuries [d]efendant caused her.”).
Having reviewed comparable cases and the evidence presented, I find that an award of $1,250,000 in compensatory damages is “fair and reasonable compensation in light of the evidence.” Noonan, 2018 WL 1738746, at *7.
2. Punitive Damages
In light of Plaintiff's declaration and the record before the Court, Plaintiff should also be awarded $1,250,000 in punitive damages. As previously stated, punitive damages are available “where ‘the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him.'” Walker v. Sheldon, 10 N.Y.2d 401, 404 (1961) (citation omitted). Any punitive damages award must be “fair, reasonable, predictable, and proportionate.” Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013). The Supreme Court has established three guideposts to consider in evaluating a punitive damages award: (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between the award and the penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996); see Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997). A one-to-one ratio of punitive damages to compensatory damages is both common and permissible when compensatory damages are “substantial.” See Alla v. Verkay, 979 F.Supp.2d 349, 374 (E.D.N.Y. 2013) (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417, 425 (2003)). In some instances, a ratio of two-to-one may also be permissible under due process principles. Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 167 (2d Cir. 2014).
As the court noted in Doe v. Green, “[i]t remains unsettled whether a district court must apply the Gore factors to assess punitive damages in the context of a post-default damages inquest.” Doe v. Green, No. 17-CV-1765 (RA) (OTW), 2021 WL 2188534, at *8 n.6 (S.D.N.Y. Apr. 29, 2021) (collecting cases). Regardless, “recent cases recognizing this uncertainty have still reviewed the range of punitive damages awarded in comparable cases, a process that ‘corresponds with the third Gore factor,' and used the Gore factors to ensure the award is not ‘grossly excessive' and thus comports with due process.” Id. (citations omitted).
In two of the cases submitted by Plaintiff, the court awarded $1 million in punitive damages for a sexual assault with life-long ramifications for the victim. Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Saudi Oger Ltd., No. 13-CV-571, 2017 WL 4541426, at *7 (S.D.N.Y. Oct. 10, 2017); Noonan v. Becker, No. 14-CV-4084 (LTS) (JLC), 2018 WL 1738746, at *8 (S.D.N.Y. Apr. 10, 2018), report and recommendation adopted, 2018 WL 2088279 (S.D.N.Y. May 3, 2018). In Doe, the court found that the sexual assailant's behavior “undeniably constitute[d] morally reprehensible or utterly reckless behavior.” Doe, 2017 WL 4541426, at *7. In Noonan, the court found that the sexual assault had “shattered” the plaintiff's “emotional well-being.” Noonan, 2018 WL 1738746, at *8. In two of the other cases submitted by Plaintiff, the court awarded $200,000 and $100,000 in punitive damages, respectively, for sexual assaults that did not involve penetration. Doe v. Green, No. 17-CV-1765 (RA) (OTW), 2021 WL 2188534, at *8 (S.D.N.Y. Apr. 29, 2021), report and recommendation adopted, 2021 WL 2188148 (S.D.N.Y. May 28, 2021); Offei v. Omar, No. 11-CIV-4283 (SAS) (MHD), 2012 WL 2086294 (S.D.N.Y. May 18, 2012), report and recommendation adopted, 2012 WL 2086356 (S.D.N.Y. June 8, 2012).
Here, I find that Hyassat's conduct was malicious, morally reprehensible and showed a complete disregard for Plaintiff's personhood and her right to bodily autonomy. An award of punitive damages is warranted “to deter and punish exactly this attitude and conduct.” Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, 2017 WL 4541426, at *7.
Hyassat used both force and deception here: he drugged Plaintiff and raped her while she was unconscious. His rape was as vicious as it was premeditated. Hyassat abused the prestige of his position as an employee of the Permanent Mission of Jordan to the United Nations in New York City, and leader of a United Nations team in Vienna, Austria, to lure Plaintiff to dinner under false pretenses of a networking opportunity. Hyassat took advantage of the circumstances to drug Plaintiff and incapacitate her, rendering her unable to give consent. Through his conduct after the night of July 7, 2017, including subjecting Plaintiff to unwanted sexual touching several times in his apartment and making callous references to raping her while she was unconscious, Hyassat has exhibited egregious, unfeeling cruelty.
Moreover, by evading service and fleeing the country, Hyassat has shown his disregard for the judicial process. His conduct is cowardly and despicable. The need for punishment and deterrence is especially acute here given the position of public trust and power Hyassat occupied and abused.
Given the record before the Court, demonstrating Hyassat's egregious misconduct, his disregard for the judicial process, and my review of comparable cases, the Court finds that an award of $1,250,000 in punitive damages is appropriate here. This substantial figure recognizes the highly reprehensible nature of defendant's conduct while, at the same time, comporting with the above-cited cases granting higher awards in cases involving sexual assaults with lifelong implications for the plaintiff.
III. Conclusion
For the reasons stated above, I recommend that Plaintiff be granted compensatory damages in the amount of $1,250,000, and punitive damages in the amount of $1,250,000, for a total award of $2,500,000, as well as postjudgment interest pursuant to 28 U.S.C. § 1961(a).
Postjudgment interest is mandatory for judgments in federal civil cases, and must be “calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.” 28 U.S.C. § 1961(a). Postjudgment interest should be calculated from February 1, 2023, the date Judge Gardephe entered default judgment against Defendant. (ECF 69). Although the words “default judgment” are not used in the February 1, 2023 Order, the Order is clearly a ruling granting Plaintiff's motion for default judgment (ECF Nos. 54, 55, 56) and entering default judgment.
IV. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul G. Gardephe, United States District Judge. Any request for an extension of time for filing objections must be directed to Judge Gardephe. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).