Absent an enforceable choice of law provision, New York courts require that an actual conflict of law exists before engaging in a choice of law analysis. See Fieger v. Pitney Bowes Credit Corp., 251 F.3d at 393 (stating: "It is only when it can be said that there is no actual conflict that New York will dispense with a choice of law analysis") (citation and internal quotations omitted); see also K.T. v. Dash, 37 A.D.3d 107, 112, 827 N.Y.S.2d 112, 117 (1st Dep't 2006). In the event that no conflict exists, and "if New York law is among the relevant choices, New York courts are free to apply [New York law]."

Where the issue is mainly loss allocation, the law of the place of the injury (usually the victim's domicile) is generally applied. See K.T. v. Dash, 827 N.Y.S.2d 112, 116 (1st Dep't 2006). However, it is usual in intentional tort claims to classify the law as conduct-regulating. Cooney v. Osgood Mach., 81 N.Y.2d 66, 73 (1993).

Where the purpose is to regulate conduct, the locus of the tort usually governs the choice of law analysis. Lee, 166 F.3d at 545; Padula, 84 N.Y.2d at 522, 620 N.Y.S.2d 310, 644 N.E.2d 1001; K.T. v. Dash, 37 A.D.3d 107, 111, 827 N.Y.S.2d 112 (1st Dep't 2006). "The locus of a tort is generally defined as the place of the injury."

This requires two separate inquiries: (i) what are the significant contacts and in which jurisdiction are they located, and (ii) what is the purpose of the law, to regulate conduct or allocate loss. See Cooney, 81 N.Y.2d at 72; see also K.T. v. Dash, 37 A.D.3d 107, 111 (N.Y.App.Div. 2006). "Loss-allocating rules are applicable once there is admittedly tortious conduct, while conduct-regulating rules are those people use as a guide to governing their primary conduct."

"The first step in choice of law analysis is determining whether an actual conflict exists between the jurisdictions involved" (K.T. v Dash, 37 AD3d 107, 110 [1st Dept 2006]; Matter of Allstate Insurance Company [Stolarz — New Jersey Manufacturers Insurance Company], 81 NY2d 219, 223; Bodea v TransNat Express. Inc., 286 AD2d 5, 8 [4th Dept 2001]). As indicated above, a conflict between Massachusetts and New York law exists.

(See Op. & Order, ECF No. 9287, at 3-5.) Magistrate Judge Netburn correctly noted that while assault and battery have characteristics of both conduct-regulating and loss-allocating torts (see Report at 10-11 (citing K.T. v. Dash, 37 A.D.3d 107, 113 (1st Dep't 2006))), as applied to the facts of this litigation, the distinction between classes of torts is without a difference, as each test results in the place of the tort controlling the choice-of-law outcome. (See id. at 11.)

“Loss-allocating rules are applicable once there is admittedly tortious conduct, while conduct-regulating rules are those people use as a guide to governing their primary conduct.” K.T. v. Dash, 827 N.Y.S.2d 112, 117 (App. Div. 1st Dep't 2006) .

Licci I, 672 F.3d at 158 (citing GlobalNet, 449 F.3d at 384). "Conduct-regulating rules are those that 'people use as a guide to governing their primary conduct,'" Licci I, 672 F.3d at 158 (quoting K.T. v. Dash, 37 A.D.3d 107, 112 (1st Dep't 2006), "while [l]oss-allocating rules . . . are laws that 'prohibit, assign, or limit liability after the tort occurs.'" Licci I, 672 F.3d at 158 (quoting DeMasi v. Rogers, 34 A.D.3d 720, 721 (2d Dep't 2006) (internal quotation marks omitted).

See id. at 158. "Conduct-regulating rules are those that 'people use as a guide to governing their primary conduct,'" id. (quoting K.T. v. Dash, 827 N.Y.S.2d 112, 117 (1st Dep't 2006), while "[l]oss allocating rules . . . are laws that prohibit, assign, or limit liability after the tort occurs," id. (quoting DeMasi v. Rogers, 826 N.Y.S.2d 106, 108 (2d Dep't 2006) (alteration in quotation). "If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders."

“Conduct-regulating rules are those that ‘people use as a guide to governing their primary conduct.’ ” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 672 F.3d at 158 (citing K.T. v. Dash, 37 A.D.3d 107, 827 N.Y.S.2d 112, 117 (1st Dep't 2006)).