DECISION AND ORDER

HONORABLE LAWRENCE E. KAHN, United States District Judge.

Presently before the Court is Defendants' Motion to Dismiss Counts Two and Three of the amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1367. For the following reasons, Defendants' Motion to Dismiss is GRANTED.

I. BACKGROUND

On or about July 1996, Plaintiff commenced working for Christie's as a photographer. Plaintiff was employed to work in a warehouse owned by Christie's where she would photograph items for catalogs published by Christie's in connection with their auction business. The items to be photographed at the warehouse are generally larger items requiring assistance from warehouse staff, who were supervised by Frankie Dauo, to move such objects into place for Plaintiff's photo shoots. Plaintiff was informed at the outset of her employment that cooperation with the warehouse staff would be an important element in efficient performance of her job.

Plaintiff's Complaint alleges that Dauo and other warehouse workers were uncooperative and made offensive comments. The Complaint also alleges that Plaintiff complained to her supervisor, Lisa Klitses, about the conduct of Dauo and the other warehouse workers. In October 1997, Plaintiff complained to the Human Resources Department about the conditions in the warehouse. Christie's began an investigation and granted Plaintiff a paid leave of absence. Plaintiff never returned to work at Christie's, resigning on November 28, 1997.

On April 21, 1998, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights. Following receipt of a right-to-sue letter, Plaintiff filed her Complaint in this Court.

II. DISCUSSION A. Standard for Dismissal

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The issue is not whether a plaintiff is likely to prevail ultimately, `but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (additional citation omitted). Courts apply this standard with even greater force where the complaint arises from alleged civil rights violations. See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991) (citations omitted), and all reasonable inferences must be construed in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988) (applying the principle of construing inferences in favor of plaintiff). As the Second Circuit has stated, when determining the sufficiency of the claim for Rule 12(b)(6) purposes,

consideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

A complaint should not be dismissed unless it appears that no construction of the facts would permit the plaintiff to prevail. See Hughes v. Rowe, 449 U.S. 5, 10 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). The Rules do not require the plaintiff to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (applying this standard to a complaint based upon civil rights statutes). It is with this standard in mind that the Court addresses the issues presented.

B. Plaintiff's Claims

Plaintiff's Complaint charges individual defendants Dauo and Klitses with "aiding and abetting," a violation of the HRL, N.Y. Exec. Law § 296(6) (McKinney 2001), in that defendant Dauo "creat[ed] the sexually offensive and hostile atmosphere which permeated Plaintiff's workplace," and defendant Klitses "condon[ed] and acquiesce[d] in the sexually hostile and harassing treatment of Plaintiff." Complaint at ¶ 104 and 102, respectively. For the reasons that follow, Plaintiff's Second and Third Causes of Action are dismissed against defendants Klitses and Dauo, respectively.

Under New York law, even if an employer can be held liable for employment discrimination under the HRL, individual liability for such discrimination cannot be imposed on an employee "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 660 (1984).

In Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), however, the Second Circuit held that Patrowich did not apply to claims under N.Y. Exec. Law § 296(6). See Tomka, 66 F.3d at 1317. Based on the language of § 296(6) the Tomka Court "distinguished Patrowich by holding that a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under [N.Y. Exec. Law § 296(6).]" Tomka, 66 F.3d at 1317 (emphasis added). New York Courts have largely disagreed with the analysis of the Tomka decision, and some federal courts have joined in the criticism. See Trovato v. Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) (criticizing Tomka and following Patrowich by rejecting aiding and abetting liability under § 296(6)); Cohen v. Alexander's Inc., 1987 WL 113754 (N.Y.Sup.Ct. Aug. 14, 1987) (rejecting aiding and abetting liability under § 296(6) based on its reading of Patrowich); Bush v. Raymond Corp., 954 F. Supp. 490, 497, n. 4 (N.D.N.Y. 1997) (noting the criticism of the Tomka decision and that the Tomka decision arguably renders the holding of the New York Court of Appeals meaningless); Falbaum v. Pomerantz, 891 F. Supp. 986, 992 (S.D.N.Y. 1995) (dismissing § 296 claims against individual defendants: "the limitation embodied in the statutory definition of `employer' and in Patrowich, could be easily evaded by alleging claims either under an aiding and abetting or retaliation theory. . . . The various parts of a statute should be construed to give meaning to all"); Johnson v. A.P. Products, Ltd., 934 F. Supp. 625, 629-30 (S.D.N.Y., 1996) (noting the criticism of the Tomka holding and reluctantly following the Second Circuit's precedent). At least two New York courts have adopted the reasoning of Tomka and recognized that a former employee could maintain a cause of action for discrimination against another employee as an aider and abettor. See Murphy v. ERA United Realty, 251 A.D.2d 469, 471-73, 647 N.Y.S.2d 415, 417-18 (2d Dep't 1998); see also Steadman v. Sinclair, 223 A.D.2d 392, 393, 636 N.Y.S.2d 326, 326 (1st Dep't 1996) (citing Tomka for the proposition that defendant may be held individually liable for retaliation as an aider and abettor under N.Y. Executive Law § 296(6)). Under the reasoning of the Second Circuit, and taking as true all factual allegations in the Complaint, the alleged conduct by Dauo is sufficient to survive a motion to dismiss on the aiding and abetting claim pursuant to N. Y. Exec. Law § 296(6).

Given the unsettled nature of the state of the law in New York regarding § 296(6), however, this Court declines to exercise supplemental jurisdiction over these State law claims. Under 28 U.S.C. § 1367(c), "[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if (1) the claim raises a novel or complex issue of State law, . . . or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." As previously noted, the New York Court of Appeals has held that individuals are subject to liability under the HRL only if they have an ownership interest in the company or supervisory authority over the plaintiff. See Patrowich, 63 N.Y.2d at 542, 483 N.Y.S.2d at 660. The New York Court of Appeals has not decided the issue of liability on an aiding and abetting claim, and the lower courts in New York are divided on the issue, though most have criticized the Tomka decision. The Appellate Division, First Department has adopted Tomka's holding that employee supervisors may be held individually liable as aiders and abetters, see Steadman v. Sinclair, 223 A.D.2d 392, 636 N.Y.S.2d 325, 326 (1st Dep't 1996), and the Second Department, as well as at least one lower New York court, has disagreed with Tomka. See Trovato v. Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) (rejecting Tomka and holding that there is no individual liability even under § 296(6) for individuals who are not "employers and employee-owners or those with specified authority"); Foley v. Mobil Chemical Co., 170 Misc.2d 1, 647 N.Y.S.2d 374, 380-82 (Sup.Ct. Monroe Cty. 1996) (holding that § 296(6) only applies to parties outside the employment relationship who may assist in employment discrimination);

Since the New York courts are split on this issue, this Court declines to exercise jurisdiction over this claim. See Houston v. Fidelity, No. 95 Civ. 7764, 1997 WL 97838, at *10 (S.D.N.Y. 1997) (declining to exercise supplemental jurisdiction over the individuals sued under § 296(6) of the HRL even where, as here, the claim involved a common nucleus of operative fact with the federal discrimination claim). "Given the unsettled state of the law, it is possible that the parties would have a `surer-footed' reading of the extent of aiding and abetting liability in state court." Houston, 1997 WL 97838, at *10 (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).

Furthermore, the presence of individual defendants who could be liable under State law for conduct that would not give rise to liability under federal law will create practical difficulties at trial. The risk of jury confusion is considerable. Therefore, Defendants' Motion to Dismiss the Third Cause of Action against defendant Dauo is granted for lack of jurisdiction. Defendants' Motion to Dismiss the Second Cause of Action against defendant Klitses is also dismissed for lack of jurisdiction.

CONCLUSION

For the reasons stated above, it is hereby:

ORDERED, that defendant Lisa Klitses's Motion to Dismiss (Docket # 35) is GRANTED; and it is further

ORDERED, that defendant Frankie Dauo's Motion to Dismiss (Docket # 32) is GRANTED; and it is further

ORDERED, that defendant Christie's Motion to Dismiss (Docket # 32) is DENIED; and it is further

ORDERED, that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action.

IT IS SO ORDERED.