Opinion
2014-05-19
Solomon MOHAMMED, Plaintiff, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., The Food Emporium and Dan Wodzenski, Defendant.
Mark L. Lubelsky, Mark L. Lubelsky and Associates, New York, for Plaintiff. Douglas P. Catalano, Esq., Neil G. Sparber, Esq., Fulbright & Jaworski, L.L.P., New York, for Defendants.
Mark L. Lubelsky, Mark L. Lubelsky and Associates, New York, for Plaintiff. Douglas P. Catalano, Esq., Neil G. Sparber, Esq., Fulbright & Jaworski, L.L.P., New York, for Defendants.
LOUIS B. YORK, J.
Defendant Dan Wodzenski moves to dismiss this action on the ground that the Complaint fails to state a cause of action pursuant to CPLR 3211(a)(7).
Because both corporate co-defendants were discharged in bankruptcy, plaintiff has discontinued against them, leaving Wodzenski as the only remaining defendant.
Background
Plaintiff claims discrimination against him based on his Indian national origin, his Muslim religion, and his age based on the city and state's Human Rights Laws (New York City Admin. Code § 8–107, et seq. and New York Executive Law, §§ 291 and 296, et seq.) Plaintiff also sues for intentional emotional distress, which defendant Wodzenski also moves to dismiss. Plaintiff claims that after he informed Wodzenski, his supervisor, that plaintiff had cancer, plaintiff was terminated after 32 years of employment. Previously, plaintiff had been the subject of a number of dismissals and reinstatements. Wodzenski is charged by plaintiff with aiding and abetting the corporate defendants in their discriminatory acts.
Plaintiff's ninth cause of action states in its entirety that defendants “engaged in extreme and outrageous conduct, which resulted in plaintiff Solomon Mohammed suffering severe emotional distress. Plaintiff charges that defendants acted with specific intent and/or malice and/or reckless and/or callous disregard of plaintiff's civil rights and defendants' civil obligation.
Contentions
Defendant contends that the corporate defendants' discharges in bankruptcy and the subsequent Stipulation of Discontinuance of the action against them results in the failure of the plaintiff's claim of aiding and abetting a party or parties that can no longer be held liable means that there is no longer a party to aid and abet which requires dismissal of this claim.
Plaintiff, on the other hand, argues that the bankruptcy discharge was the result of a reorganization of the corporate defendants, resulting in their discharge of any obligation to the plaintiff. However, although their discharge insulates them from liability, there was no finding by the Bankruptcy Court on the merits of the plaintiff's claims against these defendants. That being so, plaintiff is free to litigate his claim of Wodzenski's aiding and abetting defendants. This is so, he argues even though the bankruptcy discharge relieves the corporate defendants of any liability without a decision on the merits.
Plaintiff also claims that Wodzenski's conduct was sufficiently outrageous and extreme to uphold plaintiff's claim of emotional distress. Defendant counters that the cases do not support such conduct to be extreme and outrageous enough to uphold such a cause of action.
Discussion
A) Claim of Aiding and in Abetting
Both Human Rights Laws which are remedial in nature should be given a liberal construction ( Williams v. New York City Housing Authority, 61 A.D.3d 62, 872 N.Y.S.2d 27 [1st Dept.2009];Nelson v. HSBC Bank USA, 87 A.D.3d 995, 929 N.Y.S.2d 259 [2d Dept.2011]. In evaluating the extent of discriminatory activities on a motion to dismiss, under the state and city Human Rights Laws, a liberal construction is to be applied ( Vig v. New York Hairspray Co., LP., 67 A.D.3d 140, 885 N.Y.S.2d 74 [1st Dept.2009] ). Accordingly, a motion to dismiss a cause of action for aiding and abetting a party in its discriminatory activities will survive a motion to dismiss so long as the primary claim of discrimination remains viable ( Murphy v. ERA United Realty, 251 A.D.2d 469, 674 N.Y.S.2d 415 [2d Dept.1998] ). In Falbaum v. Pomerantz, a case decided by the Second Circuit Court of Appeals, 19 Fed.Appx. 10, [2d Cir.2001] interpreting New York law, the aiding and abetting claim was dismissed because the Bankruptcy Court found that the primary defendant did not discriminate. However, in this case there was no finding by the Bankruptcy Court one way or the other.
In Loving v. Abbruzzese, 298 A.D.2d, 749, 750 N.Y.S.2d 326 [3d Dept.2002] although not a claim under the Human Rights Law, the Court held that rights in existence at the bankruptcy proceeding, but not addressed therein, remain actionable in state court. In the instant case, the merits of the aiding and abetting claim were similarly not addressed. Neither side, nor the Court, has succeeded in finding a bankruptcy discharge of a claim but not on the merits, to bar a subsequent action on the merits. The Loving decision lends credence to the argument that this claim survives the bankruptcy and should not be dismissed, particularly in accordance with the directive to give the Human Rights Law a liberal construction to effectuate its remedial objective. Accordingly, plaintiff's claim of aiding and abetting survives defendants' motion to dismiss.
Emotional Distress
Plaintiff's claim of defendant's outrageous conduct must be dismissed.
The Complaint alleges that defendant Wodzenski fired him and then reinstated him several times during the years of defendant's supervision. Plaintiff emphasized that after he informed Wodzenski of his cancer, plaintiff was terminated and then reinstated, but thereafter, transferred to another store. Then plaintiff was terminated because of his physical impairment. Plaintiff claims he was consistently passed over for promotions.
In order to establish a claim for intentional infliction of emotional distress, the following essential elements must be sufficiently pleaded:
a) extreme and outrageous conduct;
b) intent to cause or disregard the probability of severe emotional distress;
c) a causal connection between the defendants' conduct and the distress;
d) severe emotional distress.
Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] [publication of a photograph of plaintiff's battered and disfigured face does not survive a motion to dismiss] The Courts of Appeals has held to avoid a motion to dismiss, the conduct of the defendant under consideration must be “... so outrageous in character and so extreme in degree, as to go beyond all possible grounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” ( Murphy v. American Home Products, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] ).
As defendant points out on page 6 of his brief, courts routinely dismiss causes of action for intentional infliction of emotional distress where, as here, the cause of action is based on discriminatory conduct. See, Semper v. N.Y. Methodist Hospital, 786 F.Supp.2d, 566 [E.D.N.Y.2011]. See, also, Emmons v. City Univ. of N.Y., 715 F.Supp.2d 394 [E.D.N.Y.2010] ) (“Adverse employment actions, even those based on discrimination are not sufficient ...” to avoid a motion to dismiss. Where a person alleges discriminatory conduct in an employment situation, the courts are very reluctant to recognize a claim based on severe emotional distress ( McIntyre v. Manhattan Ford, 256 A.D.2d 269, 270, 682 N.Y.S.2d 167, 169 [1st Dept.1998] ).
These cases illustrate that where there is an alternative remedy and/or where the conduct does not rise to the level of extreme and/or outrageous conduct, a cause of action for intentional infliction of emotional distress will be dismissed ( Semper v. N.Y. Methodist Hospital, supra ] ). Because plaintiff has alternative remedies and based on an examination of the above-cited cases, this Court holds that the defendants' actions in this case do not rise to the level of conduct that is so outrageous as to exceed the bounds of decency in a civilized society.
The Court notes that there has been mention in the parties' submissions of plaintiff's reply. Taking into account that the motion was made by defendant Wodzenski, who under the CPLR appropriately submitted reply papers, plaintiff's “reply” is not being considered because there is no such thing as a reply in support of opposition to the motion. Also, the Court did not authorize such a submission.
Accordingly, it is
ORDERED that defendant's motion to dismiss the first through eighth causes of action for aiding and abetting is denied; and it is further
ORDERED that defendant's motion to dismiss the ninth cause of action for severe emotional distress is granted.