Opinion
158648/17
07-01-2019
Jane DOE, Plaintiff, v. Christopher K. HALL, Peter F. Fobare, Martin S. Dobert, Jr.,Greg J. Demarse, Apex Solar Power LLC, Demarse Electric Inc., Adam L. Pardi, John Does 1 Through 10, Jane Does 1 Through 10, ABC Corporations 1 Through 10, and XYZ Partnerships 1through 10, Defendants.
Plaintiff: WeitzPascale, 221 Mineola Blvd, Mineola, NY 11501, By: Brian C Pascale, Esq. Defendant: Christopher K Hall, Law Office of Michael P. Chenel, 11 Computer Dr. W, Ste 104, Albany, NY 12205, By: Michael Paul Chenel, Esq. Defendant: Peter F. Fobare, E. Stewart Jones Hacker Murphy, LLP, 28 Second Street, Troy, NY 12180, By: James Craig Knox, Esq., Julie Ann Nociolo, Esq. Defendant: Marvin S. Dobert Jr., Greg J. Demarse, Apex Solar Power LLC, Demarse Electric Inc., Whiteman, Osterman & Hanna, LLP, 1 Commerce Plz, Albany, NY 12260, By: Robert Stevenson Rosborough, Esq., Vitaly Volpov, Esq., Heather Diane Diddel, Esq., Defendant: Adam L. Pardi, Brief Carmen & Klein LLP 805 Third Avenue, 12th Floor, New York, NY 10022, By: Richard E Carmen, Esq., Ira Kleiman, Esq., Matthew Jay Brief, Esq.
Plaintiff: WeitzPascale, 221 Mineola Blvd, Mineola, NY 11501, By: Brian C Pascale, Esq.
Defendant: Christopher K Hall, Law Office of Michael P. Chenel, 11 Computer Dr. W, Ste 104, Albany, NY 12205, By: Michael Paul Chenel, Esq.
Defendant: Peter F. Fobare, E. Stewart Jones Hacker Murphy, LLP, 28 Second Street, Troy, NY 12180, By: James Craig Knox, Esq., Julie Ann Nociolo, Esq.
Defendant: Marvin S. Dobert Jr., Greg J. Demarse, Apex Solar Power LLC, Demarse Electric Inc., Whiteman, Osterman & Hanna, LLP, 1 Commerce Plz, Albany, NY 12260, By: Robert Stevenson Rosborough, Esq., Vitaly Volpov, Esq., Heather Diane Diddel, Esq.,
Defendant: Adam L. Pardi, Brief Carmen & Klein LLP 805 Third Avenue, 12th Floor, New York, NY 10022, By: Richard E Carmen, Esq., Ira Kleiman, Esq., Matthew Jay Brief, Esq.
Robert R. Reed, J.
Motion sequence numbers 002 and 003 are consolidated for disposition. In motion sequence number 0002, defendants Apex Solar Power (Apex) Demarse Electric, Inc., Marvin S. Dobert, and Greg J. Demarse move, pursuant to CPLR 3211 (a) (7), to dismiss this action as to them. Plaintiff Jane Doe cross-moves to amend her complaint. In motion sequence number 003, defendant Adam L. Pardi moves to dismiss the second through the seventh, and the ninth causes of action as to him. The complaint alleges a claim of hostile work environment against Apex, Demarse Electric Inc., Marvin S. Dobert, Jr., Greg G. Demarse, Christopher K. Hall, and Peter F. Fobare, and the following claims against Pardi: sexual assault, assault; battery; violation of the right to privacy; intentional infliction of emotional distress; reckless infliction of emotional distress; negligent infliction of emotional distress; and prima facie tort.
The complaint alleges that: defendants Hall, Fobare, Dobert, and Demarse are owners, partners, shareholders, employees, and agents of both Apex and Demarse Electric, Inc.; plaintiff, who was hired on February 17, 2016, by Apex, as its director of human resources, traveled to New York that same day, after work, with Hall, Fobare, Dobert and Demarse, and went with them to a number of establishments, ending at one named Sapphire, at all of which the men plied plaintiff with alcohol; at Sapphire, they invited Pardi, who is not alleged to be an employee of Apex or Demarse Electric, Inc., to join them; all the men continued to ply plaintiff with alcohol; Pardi, Hall, and Fobare, all of whom knew that plaintiff was intoxicated, coerced her to go to Pardi's apartment, where Pardi had sexual relations with her, which activity he filmed, without her knowledge or consent, and the video of which he transmitted electronically to Hall and Fobare, who, in turn, transmitted it to a number of plaintiff's superiors, co-workers, and subordinates at Apex. Plaintiff learned about the existence of the recording on June 16, 2016. On July 7, 2016, Apex terminated plaintiff's employment.
On a motion to dismiss, pursuant to CPLR 3211 (a), the factual allegations of the complaint must be taken as true, and the court must "accord[ ] to plaintiff the benefit of every possible favorable inference, and determin[e] only whether the facts as alleged fit within any cognizable legal theory." Weil, Gotchal & Manges, LLP v. Fashion boutique of Short Hills, Inc. , 10 AD3d 267, 270 (1st Dept 2004) (internal quotation marks omitted); see also Kolchis v. Evolution Markets, Inc. , 128 AD3d 47, 57 (1st Dept 2015), affd 31 NY3d 100 (2018).
The first cause of action must be dismissed as against Demarse Electric, Inc., which is not alleged to have had an employment relationship with plaintiff, and, therefore, cannot be liable for a hostile work environment. The complaint must also be dismissed as against Dobert, and Demarse, who are alleged to have encouraged plaintiff to consume an excessive amount of alcohol, and to have persuaded her to go with Pardi to his apartment. Even assuming that Dobert and Demarse expected that Pardi would sexually assault plaintiff, their actions did not, of themselves, affect plaintiff's work environment. As noted above, Pardi is neither a principal, nor an employee, of Apex.
Hall and Fobare are alleged to have forwarded the video, that Pardi is alleged to have taken and sent to them, to a number of plaintiff's superiors and subordinates at Apex. That act, once plaintiff learned of it, indubitably created a hostile work environment for her. Defendants argue that this isolated event does not rise to the pervasiveness required for a claim under the New York State Human Rights Law. However, under the New York City Human Rights Law (Administrative Code of City of New York § 8-107 [1] [a] ), even an isolated event, such as the forwarding of the video, that demeans and humiliates a plaintiff as a woman, is actionable. Hernandez v. Kaisman , 103 AD3d 106, 115 (1st Dept 2012). Indeed, all that is necessary for a claim is that plaintiff allege that she was subjected to "differential treatment" because she is a woman. Gonzalex v. EVG, Inc. , 123 AD3d 486, 487 (1st Dept 2014). Hall and Fobare's argument that plaintiff does not allege that anyone at Apex mentioned the video to her is irrelevant. Plaintiff's knowledge that the demeaning video had been made, and distributed to multiple people at Apex, was more than enough to make her feel humiliated. "[Q]uestions of severity’ and ‘pervasiveness’ are applicable to considerations of the ‘scope of permissible damages, but not to the question of underlying liability.’ " Hernandez v. Kaisman ,103 AD3d at 113-114, quoting Williams v. New York City Hous. Auth. , 61 AD3d 62, 76 (1st Dept (2009). The allegations in the complaint more than meet the standard of differential treatment.
Hall and Fobare are alleged to be two of the owners of Apex. Accordingly, they may be presumed to have "exercised managerial responsibility" when forwarding the video, and Apex may be held liable for their action. Administrative Code of City of New York § 8-107 (13) (b) (I); Zakrzewska v. The New School , 14 NY3d 469, 480 (2010).
Plaintiff's proposed amended complaint merely adds a number of conclusory allegations to the initial complaint. See e.g. Weitz aff, exhibit A at ¶ ¶164, and 174. Accordingly, the cross-motion is denied.
With regard to the claims against Pardi, there is no independent tort for sexual assault in New York. Freihofer v. Hearst Pub. , 65 NY2d 135, 140 (1985). Nor is there a common-law right to privacy in New York, and plaintiff does not allege that Pardi acted in violation of Civil Rights Law §§ 50 and 51, which make actionable the use of one's name, portrait, or picture for advertising or trade purposes. Thomas v. Northeast Theatre Corp. , 31 AD3d 588, 589 (1st Dept 2006) citing Messenger v. Gruner & Jahr Print. & Publ. , 94 NY2d 436, 441 (2000). A claim of prima facie tort requires an allegation of special damages. Mathews v. Hadjedj , 148 AD3d 425, 426 (1st Dept 2017) ; Posner v. Lewis , 80 AD3d 396, 312 (1st Dept 2010). Neither the complaint nor the proposed amended complaint contains such an allegation. A claim of negligent infliction of emotional distress presupposes a duty of care running from the defendant to the plaintiff. Ornstein v. New York Health & Hosp. Corp. , 10 NY3d 1, 6 (2008). Pardi had no such duty to plaintiff. Reckless infliction of emotional distress is not a separate and distinct tort; it is encompassed in intentional infliction of emotional distress. James v. Flynn , 132 AD3d 1214, 1216 (3rd Dept 2015). Neither the complaint nor the proposed amended complaint alleges any fact to support the cause of action alleging assault.
The tort of intentional infliction of emotional distress has the following four elements: " ‘(i) extreme and outrageous conduct; (ii) intent to cause or disregard of a substantial probability of causing severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.’ " Andrews v. Bruk , 220 AD2d 376, 376 (1st Dept 1995) quoting Howell v. New York Post , 81 NY2d 115, 121 (1993). It is evident enough that the complaint alleges the first three of those. See Matter of Leff v. Our Lady of Mercy Academy , 150 AD3d 1239, 1240 (2d Dept 2017) (jury could find that distribution throughout high school of intimate photograph of unclothed portion of female student's body, with identification of her as subject of the photograph constituted intentional infliction of emotional distress). The fourth is alleged at paragraph 170 of the complaint. A claim may be made where, as here, the conduct alleged " ‘is so outrageous in character, and so extreme in degree, as to beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.’ " Id. , quoting Murphy v. American Home Products Corp. , 58 NY2d 293, 303 (1983).
The claim of intentional infliction of emotional distress, like the claim for battery, is subject to a one-year statute of limitations. CPLR 215 (3) ; Djeddah v. Williams , 103 AD3d 579, 579 (1st Dept 2013). However, insofar as is relevant here, CPLR 213-b provides a seven-year limitations period for a victim of a crime "to recover damages from a defendant convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom." This statute "was ‘intended to be expansive’ and to ‘give relief to more, rather than fewer, numbers of crime victims.’ " Elliott v. Grant , 150 AD3d 1080, 1081 (2d Dept 2017) quoting Elkin v. Cassarino , 248 AD2d 35, 39 (2d Dept. 1998). Pardi argues that plaintiff may not avail herself of the seven-year limitations period, because she fails to specify to what crime he pled guilty. Nonetheless, under the liberal pleading standards that are applicable to cases brought under the New York State and New York City Human Rights Laws, notice pleading, that is, a pleading that suffices to give the defendant "fair notice" of the nature of her claims and the bases for them, suffices. Vig v. New York Hairspray Co., L.P. , 67 AD3d 140, 145 (1st Dept 2009) ; see also Walzer v. Metropolitan Transp. Auth. , 117 AD3d 525, 525 (1st Dept 2014).
Accordingly, it is hereby
ORDERED that, in motion sequence number 002, the motion of defendants Demarse Electric, Inc., Marvin S. Dobert, and Greg J. Demarse to dismiss the action as to them is granted and the complaint is severed and dismissed as against said defendants, and the motion is otherwise denied; and it is further
ORDERED that the cross-motion of plaintiff Jane Doe is denied; and it is further
ORDERED that, in motion sequence number 003, the motion of defendant Adam L. Pardi is granted to the extent that the second, third, fifth, seventh, eighth, and ninth causes of action are dismissed, and the motion is otherwise denied; and it is further
ORDERED that any answer to the remaining allegations of the original complaint shall be e-filed within twenty (20) days hereof; and it is further
ORDERED that the attorneys for the parties remaining in this action shall appear for a preliminary conference at 60 Centre Street, Room 412, on August 8, 2019.