First Department Holds Past Violations Do Not Inform The Definition Of “Intimate Part” For Purposes Of Penal Law Article 130

In Watson v. Roanoke Is. Historical Assn., 2026 NY Slip Op 02949 (1st Dep’t 2026), a split court (4-1) at the Appellate Division, First Department, recently dismissed the plaintiff’s Adult Survivors Act (“ASA”) suit against his alleged assailant, holding “past violations do not inform the definition of ‘intimate part’ for the purposes of Penal Law article 130.”

The plaintiff alleged the defendant sexually abused him from 2000 through 2003, while the two worked together. The plaintiff further alleged that, in 2008, after not having contact with the defendant for years, he briefly encountered the defendant in a store, where the defendant allegedly “grabbed [plaintiff] by both of his shoulders, put his face inches from [the plaintiff’s] face and touched [the plaintiff’s] cheeks with the intimacy of a grandmother greeting her grown grandchild, saying words to the effect of ‘My! Don’t you look great. You’ve finally gone through puberty!’ and “then winked at [plaintiff] and walked away.”

Based upon this encounter, the plaintiff sued the defendant in 2023 for intentional infliction of emotional distress under the ASA. The defendant moved to dismiss pursuant to CPLR 3211(a)(7), arguing that the complaint failed to plead a predicate sexual offense under Article 130 of the Penal Law, as required to trigger the ASA’s revival provision (CPLR 214-j). In opposition, the plaintiff argued that, under the circumstances, the touching of his cheeks and shoulders constituted forcible touching (Penal Law § 130.52), rendering CPLR 214-j applicable.

The Supreme Court, New York County, agreed with the plaintiff, reasoning that, given the defendant’s alleged prior abuse, it could not “be said as a matter of law ... that [defendant’s] grabbing of [plaintiff’s] shoulders and reliving the past events is not a forcible touch.” On appeal, the First Department reversed.

In reversing, the majority reasoned that the defendant’s “acts of grabbing plaintiff’s shoulders and touching his cheeks were not, under the circumstances, sexual or intimate in nature, as necessary to state a claim for forcible touching.” The panel rejected the notion that “in determining whether there has been a forcible touching ... one should look to any prior relationship between the parties, including any allegation of a history of prior sexual abuse, sexual misconduct or sexual degradation.” On the contrary, “no reading of the statute would support this position,” and “such a reading runs afoul of the plain language and intent of the statute.” The majority further distinguished the Second Department’s decision in Aguilar v. Wishner, 249 N.Y.S.3d 476 (2d Dep’t 2026), discussed in the March 2026 CVA/HTA Practice Group Newsletter, and related cases as concerning “contemporaneous sexualized circumstances that are not present here.”

The dissent characterized the majority as “suggest[ing] that ‘societal norms require victims of sexual assault and harassment to simply put aside the distress and anxiety that their abuser’s current conduct triggers.’” Responding directly, the majority wrote, “[W]e conclude [merely] that past violations do not inform the definition of ‘intimate part’ for purposes of Penal Law article 130.” And “[w]ithout a predicate sex offense for ASA purposes, plaintiff’s cause of action for intentional infliction of emotional distress was not revived.”

Watson illustrates that, in assessing whether the touching of an “other intimate part” has occurred within the meaning of Article 130 of the Penal Law (see §§ 130.00(3), 130.52, 130.55), prior alleged sexual abuse is irrelevant; while the broader facts and circumstances are relevant, absent contemporaneous sexualized circumstances, the touching of an otherwise non-erogenous body part is not transformed into the touching of an intimate part.

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