Opinion
151440/2018
09-27-2018
Warner WOLF, Plaintiff, v. Don IMUS et al., Defendants.
Douglas H. Wigdor, Esq., Kenneth D. Walsh, Esq., Wigdor LLP, 85 Fifth Avenue, 5th Floor, New York, New York 10003, (212) 257-6800, Attorneys for Plaintiff Martin S. Garbus, Esq., Brendan R. Marx, Esq., Offit Kurman, P.A., 112 West 34th Street, New York, New York 10120, (347)589-8505, Attorneys for Defendants
Douglas H. Wigdor, Esq., Kenneth D. Walsh, Esq., Wigdor LLP, 85 Fifth Avenue, 5th Floor, New York, New York 10003, (212) 257-6800, Attorneys for Plaintiff
Martin S. Garbus, Esq., Brendan R. Marx, Esq., Offit Kurman, P.A., 112 West 34th Street, New York, New York 10120, (347)589-8505, Attorneys for Defendants
James E. d'Auguste, J.
This Court hereby consolidates Motion Sequence Nos. 001, 002, and 003 for disposition.
In Motion Sequence No. 001, defendant Don Imus moves for an order, pursuant to CPLR 3211(a)(2), (7), and (8), dismissing plaintiff Warner Wolf's complaint as against him on the grounds that (a) this Court lacks subject matter jurisdiction with respect to claims alleged under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL") in the first and third causes of action; (b) the fifth cause of action for tortious interference with contractual relations fails to state a cause of action upon which relief can be granted; and (c) this Court lacks jurisdiction over Imus with respect to the first, third, and fifth causes of action. In Motion Sequence No. 002, Wolf moves for an order, pursuant to CPLR 3215, granting a default judgment in his favor on the issue of liability as against defendants Chad Lopez, Mike McVay, and Craig Schwalb (collectively, the "Cumulus defendants"), and to schedule the matter for an inquest on damages, the award of costs, disbursements, and attorneys' fees. Additionally, the Cumulus defendants cross-move for an order, pursuant to CPLR 2004 and 3012(d), extending, nunc pro tunc , their time to answer, move, or otherwise respond to Wolf's complaint. In Motion Sequence No. 003, the Cumulus defendants move for an order, pursuant to CPLR 3211, dismissing the complaint in its entirety with prejudice.
For the reasons stated herein, the motions by all defendants seeking dismissal of the complaint (Mot. Seq. Nos. 001 and 003) are granted and the action is dismissed with prejudice. Wolf's motion seeking a default judgment against the Cumulus defendants (Mot. Seq. No. 002) is denied, and the cross-motion by the Cumulus defendants (in Mot. Seq. No. 002) seeking additional time, nunc pro tunc , to answer, move, or respond to Wolf's complaint is granted to the extent of permitting Motion Sequence No. 003 to be considered timely and determined on the merits.
In this age discrimination case, Wolf, who is currently eighty (80) years old and a resident of Naples, Florida is a former sportscaster and former employee of defendants and non-party Cumulus Media, Inc. ("Cumulus"). In or about December 1996, Wolf began to appear on the show "Imus in the Morning" (or the "show") as a sports contributor for an approximately twenty (20) year period ending in 2016. Imus is a former radio broadcaster and former host of the radio show "Imus in the Morning," which aired on WABC Radio ("WABC") from New York, New York, and is alleged to have also been Wolf's employer pursuant to statute. Imus is a resident of Brenham, Texas and contends that from May 2015 through March 29, 2018, the date of his retirement, broadcasts for "Imus in the Morning" were conducted at a studio at his home in Texas. Defendant Lopez is a Vice President and Market Manager for Cumulus and General Manager for WABC and was also Wolf's employer. McVay is Senior Vice President of Content and Programming for Cumulus and was Wolf's employer. Schwalb is WABC's Program Director and was similarly Wolf's employer. Non-party Cumulus owns WABC and was a party to Wolf's employment agreement, as well as Wolf's employer.
Since Cumulus filed for Chapter 11 reorganization on November 29, 2017, it is not named as a party in the instant action pursuant to the automatic stay imposed by 11 U.S.C. 362.
Beginning in or about December 2015, Wolf began contributing to the show from his current place of residence in Naples, Florida, instead of from WABC's New York studios. When Wolf relocated to Florida, his employment agreement (the "Agreement") provided for an annual salary of $195,000. The Agreement also provided for twenty-six (26) weeks of severance pay in the event that Wolf was terminated without cause. In or about October 2016, defendant Schwalb began to renegotiate the Agreement. To continue on the show, Wolf agreed to a reduction in salary from $195,000 to $80,000 per year, which, pursuant to an October 17, 2016 e-mail from Schwalb, retained the twenty-six (26) week severance pay from the original Agreement. At no point in either Schwalb's October 17, 2016 or October 18, 2016 e-mails, which confirmed Wolf's salary, or Wolf's October 17, 2016 acceptance e-mail was there a reference to the location from which Wolf would provide his services to the show.
Before Wolf's new negotiated agreement went into effect, Wolf's employment was terminated and he was replaced by Sid Rosenberg, a sportscaster who is "decades younger" than Wolf, according to the complaint. NYSCEF Doc. No. 1, ¶ 28. On October 31, 2016, less than two (2) weeks after Wolf confirmed the terms of his new employment agreement, defendant Imus sent Wolf an e-mail stating that he "did not think [that Wolf] doing the sports from Florida was working." Id. , ¶ 29. Imus further wrote, "[y]ou asked me if I was ok with you doing sports from Florida. I said it was. We tried it. It sucks." Id. Imus concluded the e-mail stating the following: "If you're in the studio in New York ... it's terrific. Anything else is not." Id. Wolf was seventy-eight (78) years old when he was terminated. Wolf's last broadcast on the show was November 4, 2016.
Wolf claims that the reason for his termination, namely that he was located in Florida, is pretextual, as there was no requirement that he provide his services to the show from New York and he was never given such an opportunity before he was terminated. Instead, Wolf claims that he was discriminatorily terminated based upon his age. The support for this claim arise, inter alia, from comments made by Imus that "it was ‘time to put [Wolf] out to pasture’ and ‘shoot him with an elephant dart gun.’ " Id. , ¶ 36. Also, Wolf was replaced by a sportscaster who was decades younger than him. Additionally, Wolf claims that defendants' actions resulted in Cumulus breaching its obligations under the negotiated employment contract when it refused to pay Wolf the twenty-six (26) week severance.
Discussion
Due to the fact that Wolf is a Florida resident that worked in Florida, he lacks any viable claim under either the NYSHRL or the NYCHRL since the impact of any alleged discriminatory conduct would have been in Florida. Hoffman v. Parade Publs. , 15 NY3d 285, 291 (2010). The Court of Appeals, in Hoffman , expressly concluded that, except for non-residents working in New York, these two statutory schemes do not protect non-residents of the State. Id. at 290-91. As Wolf is neither a resident of, nor employed in, the City or State of New York, his claims under both the NYSHRL and the NYCHRL are dismissed.
Moreover, reaching the merits of Wolf's claims under the NYSHRL and the NYCHRL, Wolf has not alleged any potentially meritorious factual basis for any of his causes of action, and instead relies on a series of blanket conclusory assertions and assumptions. Indeed, the only specificity contained in complaint are stray comments made by Imus, a member of same protected class as Wolf. Serdans v. New York & Presbyterian Hosp. , 112 AD3d 449, 450 (1st Dep't 2013). For this reason, Wolf's claims under the NYSHRL and the NYCHRL must also be dismissed.
With respect to the tortious interference with contract claim contained in the fifth cause of action, this cause of action is further dismissed on the ground that the contact in question had expired. Willis Re Inc. v. Hudson , 29 AD3d 489, 490 (1st Dep't 2006). Finally, as relating to all claims, this Court finds that Wolf has failed to demonstrate New York jurisdiction with respect to the causes of action asserted in the complaint as against Imus, who resides in Texas and worked in Texas at the time that the alleged causes of action accrued. Accordingly, Imus' motion (Mot. Seq. No. 001) and the Cumulus defendants' motion (Mot. Seq. No. 003) are granted and the complaint is dismissed in its entirety.
Further, Motion Sequence No. 002 seeking a default judgment against the Cumulus defendants is denied and the Cumulus defendants' cross-motion is granted. This Court finds that the Cumulus defendants exhibited an intent to defend this litigation and Wolf has not suffered any prejudice from these defendants aside from their delay in responding to the complaint. See, e.g. , Pagan v. Four Thirty Realty LLC , 50 AD3d 265 (1st Dep't 2008). Further, the Cumulus defendants set forth a reasonable excuse for the delay—that while not named as a party, Cumulus' bankruptcy proceedings have significantly affected the timing of the proceedings of the instant action—and said defendants also have meritorious defenses to the instant action, including the grounds set forth to dismiss the complaint in Motion Sequence No. 003. See id. Given New York's strong public policy for resolving cases on their merits and, as set forth in this decision, and this Court's conclusion that Wolf's claims should be dismissed, this Court denies Wolf's motion (Mot. Seq. No. 002) for a default judgment. Accordingly, as stated supra , this Court grants the Cumulus defendants' cross-motion seeking additional time, nunc pro tunc , to answer, move, or respond to plaintiff's complaint is granted to the extent of permitting Motion Sequence No. 003 to be considered timely and determined on the merits.
Conclusion
Accordingly, the Clerk is directed to enter judgment dismissing this lawsuit without costs. This constitutes the decision and order of this Court.