Artis v. Random House, Inc.

• Decision Date: 20 May 2011
• Citation: 2011 N.Y. Slip Op. 21464,936 N.Y.S.2d 479,34 Misc.3d 858
• Parties: Shaneka ARTIS, Plaintiff v. RANDOM HOUSE, INC., and Swiss Post Solutions, Inc., Defendants.
• Court: New York Supreme Court

2011 N.Y. Slip Op. 21464
34 Misc.3d 858
936 N.Y.S.2d 479

Shaneka ARTIS, Plaintiff
v.
RANDOM HOUSE, INC., and Swiss Post Solutions, Inc., Defendants.

Supreme Court, New York County, New York.

May 20, 2011.

[936 N.Y.S.2d 482]

Ismail Sekendiz Esq., Akin & Smith, LLC, New York, for Plaintiff.

Celena Mayo Esq. and Ricki Roer Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, for Defendants.

LUCY BILLINGS, J.

[34 Misc.3d 861] Plaintiff, an African–American woman, performed data entry in the mailroom of defendant Random House, Inc., under the direct supervision of defendant Swiss Post Solutions, Inc. Plaintiff alleges that both defendants jointly employed her, whereas defendants claim only Swiss Post Solutions employed her. She alleges that on February 17, 2009, she was transferred from her position at Random House to another workplace also supervised by Swiss Post Solutions. The parties dispute which defendant was responsible for the transfer. Although plaintiff refers throughout her complaint to a “termination,” the complaint actually describes only her transfer to a different workplace managed by Swiss Post Solutions and then being denied a transfer from her new workplace to an alternative workplace. Upon the facts alleged, plaintiff claims a hostile work environment, retaliation, and aiding and abetting discrimination.

After defendants moved to dismiss the complaint, C.P.L.R. § 3211(a)(1) and (7), plaintiff amended her complaint. C.P.L.R. § 3025(a). Defendants now maintain their motion to dismiss against the amended complaint. After oral argument and for the reasons explained below, the court grants defendants' motion to the extent of dismissing plaintiff's second claim, for retaliation under state law, and her seventh claim, for interference with a protected right, against defendant Random House only. [34 Misc.3d 862] C.P.L.R. § 3211(a) (7); N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8–107(19). The court otherwise denies defendants' motion. C.P.L.R. § 3211(a)(1) and (7); N.Y. Exec. Law § 296(1)(a) and (e), (6), and (7); N.Y.C. Admin. Code §§ 8–107(1), (7), (13), and (19), 8–130.

II. PLAINTIFF'S CLAIMS MAY NOT BE DISMISSED BASED ON DEFENDANTS' DOCUMENTARY EVIDENCE.

Dismissal of the complaint's claims pursuant to C.P.L.R. § 3211(a)(1) requires documentary evidence in admissible form that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002); McCully v. Jersey Partners, Inc., 60 A.D.3d 562, 876 N.Y.S.2d 27 (1st Dep't 2009); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 815 N.Y.S.2d 547 (1st Dep't 2006); Richbell Info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 289, 765 N.Y.S.2d 575 (1st Dep't 2003). The documentary evidence must plainly and flatly contradict the claims in the complaint. KSW Mech. Servs., Inc. v. Willis of NY, Inc., 63 A.D.3d 411, 879 N.Y.S.2d 328 (1st Dep't 2009); Arfa v. Zamir, 55 A.D.3d 508, 509, 869 N.Y.S.2d 390 (1st Dep't 2008); Kinberg v. Kinberg, 50 A.D.3d 512, 513, 858 N.Y.S.2d 113 (1st Dep't 2008); Sprung v. Command Sec. Corp., 38 A.D.3d 478, 479, 833 N.Y.S.2d 60 (1st Dep't 2007). The court may dismiss claims based on such evidence only if plaintiff fails to rebut it. Hicksville Dry Cleaners, Inc. v. Stanley Fastening Sys., L.P., 37 A.D.3d 218, 830 N.Y.S.2d 530 (1st Dep't 2007).

Defendants' motion to dismiss based on documentary evidence fails because the evidence is not authenticated or in admissible form. Casey v. New York Elevator & Elec. Corp., 82 A.D.3d 639, 920 N.Y.S.2d 308 (1st Dep't 2011);

[936 N.Y.S.2d 483]

Acevedo v. Audubon Mgt., 280 A.D.2d 91, 95, 721 N.Y.S.2d 332 (1st Dep't 2001). Even if the evidence were admissible, it would not conclusively resolve all factual issues raised by plaintiff's claims. First, Swiss Post Solutions' unilateral stipulation that Swiss Post Solutions was plaintiff's sole employer does not bind plaintiff, because she in no way “manifested an adoption or belief in its truth.” Addo v. Melnick, 61 A.D.3d 453, 454, 877 N.Y.S.2d 261 (1st Dep't 2009) (quoting Fed.R.Evid. 801(d)(2)(B)). While plaintiff's unilateral confidentiality agreement does acknowledge that Swiss Post Solutions employed plaintiff, she does not unambiguously acknowledge that it solely employed her.

Defendants rely on the confidentiality agreement between both alleged employers in Adler v. 20/20 Companies, 82 A.D.3d 915, 918 N.Y.S.2d 585 (2d Dep't 2011), where the agreement specifically delineated the roles and work performed by each defendant, providing a basis to conclude that only one of the defendants actually functioned as the plaintiff's employer. The confidentiality agreement here, [34 Misc.3d 863] in contrast, binds neither defendant and indicates nothing regarding Random House's functions.

Defendants' statistics from the United States Equal Employment Opportunity Commission, by showing that defendants employed other African–American and female employees, may suggest that defendants did not discriminate or retaliate against plaintiff or create a hostile work environment, but the statistics do not conclusively establish that fact. Similarly, the newspaper articles defendants rely on may show that Random House is owned by a large foreign corporation rather than an individual named Mark as plaintiff alleges, but these articles do not conclusively establish that no individual named Mark owned Random House or directly supervised the mailroom supervisors under whom plaintiff worked.

III. APPLICATION OF C.P.L.R. § 3211(a)(7) TO PLAINTIFF'S CLAIMS

Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against the moving defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268 (2008); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 A.D.2d 128, 735 N.Y.S.2d 33 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609, 900 N.Y.S.2d 44 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 144–45, 885 N.Y.S.2d 74 (1st Dep't 2009). The applicable standard is thus whether reasonable inferences from the complaint sustain a claim, especially upon a pre answer motion to dismiss as here. Harris v. IG Greenpoint Corp., 72 A.D.3d at 609, 900 N.Y.S.2d 44; Pepler v. Coyne, 33 A.D.3d 434, 435, 822 N.Y.S.2d 516 (1st Dep't 2006). See Lappin v. Greenberg, 34 A.D.3d 277, 279, 825 N.Y.S.2d 18 (1st Dep't 2006). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations

[936 N.Y.S.2d 484]

completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Harris v. IG Greenpoint Corp., 72 A.D.3d at 609, 900 N.Y.S.2d 44; Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121, 741 N.Y.S.2d 9 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60 (1st Dep't 2001).

The court assesses employment discrimination claims under a particularly relaxed “notice pleading” standard. [34 Misc.3d 864] Vig v. New York Hairspray Co., L.P., 67 A.D.3d at 145, 885 N.Y.S.2d 74. Under notice pleading, plaintiff need not plead specific facts, but need only give defendant “fair notice” of the nature and grounds of her claims. Id. Although Vig v. New York Hairspray Co., L.P., 67 A.D.3d at 145, 885 N.Y.S.2d 74, cites a 2002 United States Supreme Court decision applying the Federal Rules of Civil Procedure, the First Department decided Vig September 15, 2009, four months after the Supreme Court's rearticulation of federal pleading standards in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), on which defendants rely. Vig therefore represents the First Department's determination to adhere to notice pleading standards under New York law regardless of Iqbal's implications for notice pleading under federal law.

A. Plaintiff Sufficiently Alleges That Both Defendants Were Her Employers.

Plaintiff's claims of a hostile workplace, retaliation, and vicarious liability for discrimination require her to allege that defendants were her employers. N.Y. Exec...