Defendant Naomi Campbell moves, pursuant to CPLR 3211(a)(7), to dismiss the third, sixth and fourteenth causes of action for failure to state a cause of action, and, pursuant to CPLR 3024(b), to strike certain material from the complaint as prejudicial. Campbell asserts, without contradiction, that she is the only defendant whom was served in this action.

Plaintiff Gaby Gibson, a former domestic employee of Campbell, commenced this action on a variety of theories. At issue in this motion are the torts of intentional infliction of emotional distress (third cause of action) and false imprisonment (sixth cause of action), and breach of contract (fourteenth cause of action).

Gibson contends that Campbell used vulgar, disparaging and demeaning language on many occasions. On January 17, 2006, Campbell allegedly accused Gibson of stealing a pair of Stella McCartney jeans, and allegedly hit Gibson on the back of Gibson's head and neck while Gibson was on her knees looking for the jeans. Gibson alleges that afterwards, Campbell's agents prevented her from leaving the premises by telling her that she would not be paid for services previously rendered if she left. Gibson further alleges that Campbell and her agents intimidated and threatened her with physical harm to prevent her from leaving. Campbell and her agents also allegedly threatened to file false criminal complaints against Gibson, and allegedly stated that Campbell had friends in the NYPD who would arrest Gibson, and allegedly warned her not to report the incident.

Gibson contends that she was supposed to be paid in full by January 19, 2006 for services previously rendered. However, Gibson claims to have been paid only a portion of the amount due, and thereafter filed a complaint with the Police Department and with the District Attorney's office against Campbell. Campbell denied the assault on Gibson through a press release claiming that she was not in the United States at the time.

The complaint also makes allegations about how Campbell treated other domestic employees, and others toward whom Campbell allegedly had been violent. It also claims that Campbell publicly posed wearing a shirt that stated on the front "Naomi hit me" and on the back [*2]said, "I love it." Gibson alleges that wearing such a shirt demonstrates Campbell's belief that her assaultive behavior is a joke.

Campbell contends that the third cause of action must be dismissed as duplicative of other causes of action, and because the disparagement of an employee and use of vulgar epithets do not rise to the level of outrageousness necessary to maintain a claim for the intentional infliction of emotional distress and an award of punitive damages.

With respect to Campbell's claim that this cause of action is duplicative, Campbell fails to state which of the other causes of action it duplicates. The other torts alleged in this action are assault, battery and false imprisonment. None covers the totality of what Gibson alleges in her intentional infliction of emotional distress claim. Thus, this basis for dismissing the third cause of action lacks merit.

"A cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by a defendant "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"' (Murphy v American Home Prods. Corp., 58 NY2d 293, 303, supra)." Dillon v City of New York, 261 AD2d 34, 41 (1st Dept 1999).

Campbell asserts that case law has not permitted causes of action for the intentional infliction of emotional distress to proceed when they were based on vulgar language and did not rise to the level of " extreme and outrageous conduct which cannot be tolerated in a civilized community...' [citation omitted]." Vasarhelyi v New School for Social Research, 230 AD2d 658, 662 (1st Dept 1996). She asserts that the complaint in this action contains no more than annoying, rather than outrageous, behavior, and that it falls within the parameters of "mere insults, indignities and annoyances" (164 Mulberry Street Corp. v Columbia Univ., 4 AD3d 49, 56 [1st Dept 2004]), which are not actionable. Campbell, however, ignores that Gibson asserts that Campbell hit Gibson repeatedly and threatened her with further physical violence. Accepting the pleadings as true, together with all reasonable inferences, as the court must on a pre-answer motion to dismiss (McNeary v Niagara Mohawk Power Corp., 286 AD2d 522 [3d Dept 2001]), this Court cannot conclude that there is no basis for Gibson's claim. Gibson alleges not merely petty annoyances, but conduct which allegedly included physical assault substantially greater than the minimum that would constitute battery and threats that allegedly put Gibson in immediate apprehension of imminent harm. Accordingly, that portion of the motion that seeks to dismiss the third cause of action is denied.

In order to state a cause of action for false imprisonment, plaintiff must allege that (1) the defendant intended to confine her; (2) she was aware of the confinement; (3) she did not consent to the confinement; and (4) the confinement was not otherwise privileged. Parvi v City of Kingston, 41 NY2d 553, 556 (1977).Campbell argues that Gibson has not established that she was prevented from leaving, because telling her that she would not be paid is insufficient to establish any detaining force. A plaintiff's fears that she might be arrested or fired is not sufficient to constitute detaining force to establish this tort. Arrington v Liz Claiborne, Inc., 260 AD2d 267, 267-268 (1st Dept 1999). [*3]

However, as with the third cause of action, Campbell ignores the allegations of physical assault and threats of physical injury. Threats of physical harm, especially made after the victim was allegedly already hit repeatedly, can constitute a detaining force sufficient to establish false imprisonment.

In her reply papers, Campbell contends that Gibson failed to specify the substance of the threats, who uttered them, and whether those who threatened Gibson were then acting as Campbell's agents. Campbell failed to raise these objections in her moving papers, thereby depriving plaintiff of the opportunity to respond. Moreover, Gibson states in her complaint that the people who threatened her were Campbell's agents. Plaintiff need not recite the precise language used, because this is not a defamation cause of action. See CPLR 3016. Furthermore, Gibson need not allege in the complaint the precise form of physical injury that was threatened. The allegations suffice to state a cause of action, considering that Gibson had allegedly already been battered. At this stage of the proceedings, such a threat could constitute sufficient force to detain her even without specifying the manner of any further threatened battery. Consequently, so much of the motion as seeks to dismiss the sixth cause of action is denied.

Campbell contends that Gibson failed to allege essential terms of the parties' contract, including those upon which liability is predicated. Nevertheless, the complaint clearly alleges that Campbell promised to pay Gibson for her work, and neglected to do so. Campbell replies that Gibson has failed to plead how an oral contract is exempt from the statute of frauds, and fails to plead the manner in which the contract was breached, the rate of pay to which Gibson was entitled, or the amount that was allegedly due.

In order to adequately plead a cause of action for breach of contract, the complaint must set forth the terms of the contract that were breached. Kraus v Visa Intl. Serv. Assn., 304 AD2d 408 (1st Dept 2003); Atkinson v Mobil Oil Corp., 205 AD2d 719 (2d Dept 1994). In the case of an oral contract, the terms can be paraphrased in the allegations of the complaint. Here, Gibson has not alleged any terms of the contract. Thus, there is no allegation of the pay scale to which Gibson was entitled, the time when payment was due, or the other salient terms and conditions of employment. Gibson does not say how much she was paid, nor how much she was owed. Without these basic factual allegations, the cause of action for breach of contract is deficient. Consequently, the fourteenth cause of action is dismissed without prejudice to plaintiff to replead upon a showing of the terms and conditions of employment, that Gibson performed them as agreed, and how Campbell allegedly breached them. Dismissal is without prejudice to any timely, permissible complaint to the Department of Labor or any other appropriate government agency.

The Court notes that defendant first raised the issue of the statute of frauds in her reply papers. However, defendant has not offered any basis upon which to conclude that enforcement of an employment contract once performed would be prohibited by the statute of frauds. This issue is academic, however, in view of the foregoing discussion.

Campbell contends that plaintiff included copious scandalous and prejudicial material in paragraphs 61-103 of the complaint. Campbell requests that those allegations be stricken, as not needed to support Gibson's request for punitive damages. Campbell maintains that old media reports [*4]of her alleged acts regarding others are not relevant to Gibson's claims, and that Gibson does not need to demonstrate that Campbell's actions were aimed at the public generally.

Material will not be stricken from a pleading as "scandalous and prejudicial" if it is relevant to a cause of action. New York City Health and Hosp. Corp. v St. Barnabas Community Health Plan, 22 AD3d 391 (1st Dept 2005). Furthermore, in order to strike material as scandalous and prejudicial, pursuant to CPLR 3024 (b), a party must demonstrate that the material is both scandalous, and will prejudice the other party. Here, the material in the complaint consists of allegations that have been reported widely in the media. It is difficult to conclude that a repetition of these allegations would either raise eyebrows in today's celebrity driven media climate or cause Campbell any prejudice in this litigation.

Gibson argues that punitive damages are intended to deter bad conduct (Swersky v Dreyer and Traub, 219 AD2d 321, 328-329 [1st Dept 1996]), and that Campbell's chronic abusive and repeatedly violent conduct toward her employees must be deterred by available civil remedies, including punitive damages. Gibson maintains that the allegations are relevant to the demand for punitive damages.

"Punitive damages require a demonstration that the wrong complained of rose to a level of such wanton [conduct] as to imply a criminal indifference to civil obligations.'" 164 Mulberry Street Corp. v Columbia Univ., 4 AD3d at 60 (citation omitted). If proven, the reports of Campbell's conduct with respect to other people could support a finding of wanton or outrageous conduct and thus have a bearing on the appropriateness of punitive damages. O'Brien v Jack LaLanne Fitness Ctrs., 237 AD2d 587, 588 (2d Dept 1997). Those alleged acts might be relevant to the issues of intent and the need for future deterrence. See Freeman v Port Auth. of New York and New Jersey, 243 AD2d 409, 410 (1st Dept 1997). Consequently, Campbell has not met her burden of proving that those allegations must be stricken from the complaint.

Accordingly, it is hereby

ORDERED that defendant Naomi Campbell's motion is denied except to the extent that the fourteenth cause of action of the complaint is dismissed without prejudice to replead upon a specification of the terms of the contract which are alleged to have been breached; and it is further

ORDERED that defendant is directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry.

This constitutes the decision and order of the Court.

Dated: August 13, 2007ENTER:

New York, New York

____________/s/__________________

J.S.C.