Contextual Intimacy Under the Adult Survivors Act: Aguilar v. Wishner and the Scope of “Sexual or Other Intimate Parts”

I. Introduction

In Aguilar v. Wishner, 2025 NY Slip Op 07265 (App Div 2d Dept), the Second Department addressed an issue of first impression in that department under New York’s Adult Survivors Act (ASA), CPLR 214‑j: how narrowly or broadly to construe “sexual touching” and “sexual contact” when the physical contact is with a part of the body that is not, in the “classic sense,” an anatomically sexual organ.

The case arises from an encounter between a patient, Mavis Aguilar, and her treating physician, Steven G. Wishner, during a 2004 medical examination. Aguilar alleges that the examination was a pretext for sexual abuse, and she sued in 2022 under the ASA’s one-year revival window. The trial court dismissed the complaint under CPLR 3211(a)(7), holding that the conduct described—pressure with the doctor’s thumbs on Aguilar’s lower back while he held her waist—did not amount to “forcible touching” or “sexual abuse in the third degree” because there was no direct touching, with pressure, of her buttocks or other “sexual or intimate parts.”

The Second Department reversed. It held that even where the body part touched is not “anatomically sexual in the classic sense,” the predicate sexual offenses under Penal Law article 130 can still be satisfied if “the broader facts, manner, and circumstances of the touching or sexual contact involve intimacy or the alleged sexual gratification of the abuser.” In doing so, the court articulated a contextual test that looks beyond pure anatomy and focuses on the three-dimensional circumstances of the encounter.

The decision also clarifies three additional points: (1) the sufficiency of pleadings in ASA cases under CPLR 3013; (2) the standard for CPLR 3211(a)(7) motions where evidentiary material (such as deposition transcripts) is submitted; and (3) the inapplicability of laches to claims revived by the ASA.

II. Factual and Procedural Background

A. The January 2004 Examination

On January 4, 2004, plaintiff Mavis Aguilar saw defendant Dr. Steven G. Wishner at Huntington Medical Group, P.C. (HMG) for back pain. At the time, she was an adult patient and had seen Wishner on multiple occasions.

According to Aguilar’s later account in a 2014 deposition:

She was instructed to put on a gown, opening in the front, and confirmed with Wishner that she should remove all clothing except her underwear.
When Wishner returned, he told her to stand on the stepstool used to access the examination table, to remove the gown, and to turn around.
He directed her to bend forward over the examination table with her buttocks facing him. He sat in a chair behind her, placed his hands around her waist, and pressed his thumbs into her lower back in the area of her kidneys, with his head “basically on [her] behind.”
He said he was checking whether her pain was related to her kidneys. Aguilar, who had some prior medical school training in Guatemala, testified that this did not resemble a legitimate kidney exam.
She testified that, in her perception, he appeared to be “enjoying something,” and she immediately felt disgusted. She dressed, left, and reported the incident to her husband and a co-worker the same day.

Later in 2004, her husband met with persons at HMG to complain about the conduct. The couple did not initiate litigation at that time, instead expressing only that they wanted someone to “speak to” Wishner so it would not happen again.

In 2014, Aguilar testified as a nonparty witness in a different lawsuit involving Wishner and HMG. She understood there were “several complaints similar to mine” and that another plaintiff “was smart enough to take an extra step and put a lawsuit” that Aguilar’s testimony would help support.

B. The 2022 Adult Survivors Act Lawsuit

In December 2022, within the ASA’s one-year look-back window, Mavis Aguilar and her husband Edward filed suit against:

Dr. Steven G. Wishner,
Huntington Medical Group, P.C., and
Two NYU-affiliated entities (NYU Langone Huntington Medical Group and NYU Langone Health System).

They alleged claims for personal injuries “pursuant to the ASA” based on the 2004 encounter. The complaint, among other things, asserted that:

Wishner engaged in “offensive, nonconsensual bodily contact” that included “nonprivileged touching of a sexual nature.”
He preyed on female patients with medically inappropriate and sexually abusive “examinations” lacking any legitimate medical purpose, in order to leer and obtain his own sexual gratification.
He instructed patients to be fully or partially naked without chaperones during routine exams and touched and rubbed patients’ bodies with ungloved hands for no medical purpose.
His conduct toward Aguilar during the January 4, 2004 examination constituted:
- Forcible touching under Penal Law § 130.52(1) – intentionally and for no legitimate purpose forcibly touching her sexual or other intimate parts to degrade or abuse her or to gratify his sexual desire; and
- Sexual abuse in the third degree under Penal Law § 130.55 – subjecting her to “sexual contact” without her consent.

HMG was alleged to be vicariously liable under respondeat superior and directly liable for negligent hiring, retention, supervision, and training.

C. The Motions to Dismiss

Wishner moved to dismiss under CPLR 3211(a)(7), arguing:

The complaint failed to state a viable ASA cause of action because it contained only conclusory assertions of forcible touching and sexual abuse and did not allege contact with Aguilar’s “sexual or other intimate parts.”
Even if the pleadings were facially sufficient, Aguilar’s 2014 deposition testimony (submitted with the motion) showed that he touched only her waist and lower back in the course of a legitimate exam and did not touch her buttocks or genitals; thus, the plaintiffs “have no cause of action” under the ASA.

HMG cross-moved for dismissal on similar grounds, arguing that:

There was no qualifying Penal Law article 130 predicate offense alleged or established by the deposition, and
Without such a predicate, it could not be held liable either vicariously or for negligent supervision/hiring.

The Supreme Court, Suffolk County (Farneti, J.), agreed. It held that:

Although the buttocks qualify as an “intimate part” for Penal Law article 130 purposes, Aguilar’s testimony did not establish that Wishner applied “some level of pressure” to her buttocks.
His contact with her waist and lower back did not constitute forcible touching or sexual abuse in the third degree as a matter of law.
Because there was no predicate offense, the ASA could not revive the claim, and HMG could not be liable for any derivative or direct negligence theory premised on sexual abuse.

The court dismissed the complaint as against Wishner and HMG. A judgment of dismissal was entered on December 8, 2023. The Aguilars appealed both from the order and from the judgment. The Second Department dismissed the appeal from the order (as subsumed) and reviewed the issues on appeal from the judgment.

III. Summary of the Opinion

The Second Department, per Dillon, J.P., reversed the judgment and reinstated the complaint against Wishner and HMG. The key holdings are:

Context-driven interpretation of “sexual or other intimate parts” and “sexual contact” under the ASA.
The court held that:
“where, as here, the alleged nonconsensual touching or sexual contact was to a part of the body other than an anatomically sexual part, in the classic sense, these Penal Law offenses may still qualify as a predicate for an action pursuant to the ASA if the broader facts, manner, and circumstances of the touching or sexual contact involve intimacy or the alleged sexual gratification of the abuser.”
Application to Aguilar’s allegations.
Considering the “three-dimensional context”—Aguilar standing on a stepstool, nearly naked, bent over the exam table, with Wishner seated inches behind her buttocks, hands on her bare waist and thumbs on her lower back, and her perception that he was “enjoying something”—the court held that, taking the facts as true and drawing every favorable inference, the complaint (as supplemented by her deposition) stated a viable cause of action under the ASA.
Pleading sufficiency under CPLR 3013.
Allegations specifically invoking Penal Law §§ 130.52 (forcible touching) and 130.55 (sexual abuse in the third degree) adequately plead the predicate offenses required by the ASA; plaintiffs are not required to recite each statutory element in the complaint. The elements can be “fleshed out” via a bill of particulars and discovery.
Standard on CPLR 3211(a)(7) with evidentiary material.
When evidentiary material such as a deposition transcript is submitted on a motion to dismiss, the question becomes whether the plaintiff has a cause of action, not merely whether it is perfectly pleaded. Dismissal is proper only where a material fact alleged “is not a fact at all and no significant dispute exists regarding it.” That stringent standard was not met here.
Rejection of laches as a defense to ASA claims.
Because the ASA is a legislatively enacted revival statute, laches does not apply to bar a claim timely brought within the revival window.

The court therefore reversed the judgment, denied the CPLR 3211(a)(7) motion and cross-motion, reinstated the complaint against both Wishner and HMG, and awarded costs to the plaintiffs.

IV. Legal Framework

A. The Adult Survivors Act (CPLR 214‑j)

The ASA, enacted in 2022, is a revival statute. A revival statute temporarily reopens the time to file lawsuits that would otherwise be barred by the statute of limitations. Under CPLR 214‑j:

Adult survivors of sexual abuse (those who were 18 or older at the time of the abuse) were allowed to file otherwise time-barred civil claims during a special one-year window.
The window ran from November 24, 2022 through November 23, 2023. The opinion notes that the window “is now closed.”
To qualify, the plaintiff’s claim must arise from conduct that:
- constitutes incest as defined in the Penal Law, or
- constitutes one or more sexual offenses under Penal Law article 130.
Plaintiffs must also allege that the conduct caused some form of injury.

The ASA is the adult counterpart to the Child Victims Act (CVA), CPLR 214‑g, which provided a similar look-back window for people abused as minors.

B. Predicate Sexual Offenses under Penal Law Article 130

For ASA purposes, Aguilar’s complaint identified two specific Penal Law article 130 offenses:

Forcible touching – Penal Law § 130.52(1)
A person is guilty when he or she:
“intentionally, and for no legitimate purpose, . . . forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.”