Opinion
15360 Index No. 158504/19 Case No. 2021–01012
02-24-2022
Christopher PAPPAS, Plaintiff–Appellant, v. MOODY'S INVESTOR SERVICE, Defendant–Respondent.
Kraus & Zuchlewski LLP, New York (Pearl Zuchlewski of counsel), for appellant. Morgan, Lewis & Bockius LLP, New York (Kenneth J. Turnbull of counsel), for respondent.
Kraus & Zuchlewski LLP, New York (Pearl Zuchlewski of counsel), for appellant.
Morgan, Lewis & Bockius LLP, New York (Kenneth J. Turnbull of counsel), for respondent.
Acosta, P.J., Kapnick, Friedman, Singh, Pitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered January 25, 2021, which granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion for leave to file a second amended complaint, unanimously affirmed, without costs.
The complaint fails to state causes of action for discrimination and retaliation under the State and City Human Rights Laws ( Executive Law § 296 and Administrative Code of City of N.Y. § 8–107). It fails to allege that plaintiff is a member of a protected class (see Matter of Local 621 v. New York City Dept. of Transp., 178 A.D.3d 78, 81, 111 N.Y.S.3d 588 [1st Dept. 2019], lv dismissed 35 N.Y.3d 1106, 132 N.Y.S.3d 720, 157 N.E.3d 674 [2020] ) or that he was treated differently or less well than his female coworkers (see e.g. Massaro v. Department of Educ. of the City of N.Y., 121 A.D.3d 569, 993 N.Y.S.2d 905 [1st Dept. 2014], lv denied 26 N.Y.3d 903, 2015 WL 5150744 [2015] ). Plaintiff's argument that defendant, his former employer, could institute a sham sexual harassment claim against him only because he is male is unavailing. In any event, he failed to establish that female coworkers who engaged in similar behavior were not investigated for sexual harassment. The complaint contains no allegations of comments or references to his gender to support an inference of discriminatory animus (see Whitfield–Ortiz v. Department of Educ. of City of N.Y., 116 A.D.3d 580, 581, 984 N.Y.S.2d 327 [1st Dept. 2014] ).
In support of the retaliation claim, the complaint fails to allege that plaintiff engaged in a protected activity and suffered an adverse employment action because of it (see Koester v. New York Blood Ctr., 55 A.D.3d 447, 448–449, 866 N.Y.S.2d 87 [1st Dept. 2008] ). Contrary to plaintiff's contentions, his participation in the sexual harassment investigation is not a protected activity, because he was the alleged harasser (cf. Sorrentino v. Bohbot Entertainment & Media, 265 A.D.2d 245, 697 N.Y.S.2d 263 [1st Dept. 1999] [actions in opposition to practices forbidden by the Human Rights Laws are actions protected against retaliation]).
The complaint fails to state a cause of action for tortious interference with a prospective business advantage, because it does not allege specific facts that, if proven, would demonstrate that defendant was motivated solely by a desire to harm plaintiff (see Jacobs v. Continuum Health Partners, 7 A.D.3d 312, 776 N.Y.S.2d 279 [1st Dept. 2004] ) and that it used wrongful means to do so (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 191–192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ). The motion court providently denied plaintiff leave to amend the complaint to assert additional facts in support of this claim, because "under no set of circumstances could plaintiff have made out a case for tortious interference with advantageous business relations" ( Eighth Ave. Garage Corp. v. H.K.L. Realty Corp., 60 A.D.3d 404, 405, 875 N.Y.S.2d 8 [1st Dept. 2009], lv dismissed 12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1003 [2009] ).