Fletcher v. Greiner

• Decision Date: 17 December 1980
• Citation: 435 N.Y.S.2d 1005,106 Misc.2d 564
• Parties: Virginia A. FLETCHER, Plaintiff, v. Dr. Sherwood W. GREINER, Defendant.
• Court: New York Supreme Court

Page 1005

435 N.Y.S.2d 1005

106 Misc.2d 564

Virginia A. FLETCHER, Plaintiff, v. Dr. Sherwood W. GREINER, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Dec. 17, 1980.

Walter J. Boyles, Floral Park, for plaintiff.

Domenick A. Pelle, Massapequa, for defendant.

HOWARD E. LEVITT, Justice.

This is an action alleging charges of sexual discrimination in employment in violation of section 296 of the Executive Law and the tort of abusive discharge.

In 1963, plaintiff, a married woman, became employed by defendant, a married man, as a medical technician, assistant and office manager. Plaintiff alleges that from July 18, 1963 to September, 1977 defendant used his "hegemonic position to importune plaintiff" into engaging in acts of sexual intercourse and deviate sexual behavior. Plaintiff asserts that compliance with defendant's requests were a condition of continuing employment and she feared that refusal of these advances would have an adverse effect.

Plaintiff, however, admits that hegemony notwithstanding, she eventually fell in love with defendant and he expressed love for her. She further alleges that they thereafter discussed a future life together and were contemplating matrimony. Indeed, she claims that at the insistence of defendant she divorced her husband in 1973 and waived alimony.

Plaintiff asserts that, four years later, in August, 1977 she refused to have any further sexual relations with defendant, whereupon defendant told her that he would not marry her and subsequently terminated her employment in September and salary payments in December.

In a prior action based on the same facts, plaintiff sought to recover from the same defendant damages for breach of an oral contract of lifetime employment and for fraud. The complaint was dismissed on December 3, 1979 (73 A.D.2d 591, 422 N.Y.S.2d 130).

The within matter came before this Court on a motion by plaintiff, inter alia, to strike several items from the demand for a bill of particulars and to strike defendant's affirmative defenses. Defendant cross-moves to dismiss each cause of action in the complaint pursuant to CPLR 3211(a)(7) and 3212, and to strike plaintiff's demand for examination before trial of defendant's wife, a non-party.

The defendant has withdrawn his fourth affirmative defense of lack of jurisdiction over his person. Therefore, plaintiff's motion to strike the defendant's affirmative defenses is moot as to this defense. The defenses of Statute of Frauds and Statute of Limitations are likewise stricken in that the defense of Statute of Frauds does not apply since there is no contractual obligation pleaded. The instant action was commenced in June, 1980 and the date of plaintiff's discharge was in September, 1977 or in December, 1977 (since plaintiff was not permitted to work in defendant's office since September, 1977 and her claim that she was paid until December, 1977 has not been denied). Determination as to which of these dates is to apply is unnecessary since they both fall within the applicable Statute of Limitations. As a result, the defense of Statute of Limitations is likewise stricken.

The defense of Res Judicata is also stricken. "The Court of Appeals (in Schuykill Fuel Corp. v. Nieberg Realty, Inc. (250 N.Y. 304, 306-307, 165 N.E. 456) and S. T. Grand, Inc. v. City of New York (32 N.Y.2d 304, 344 N.Y.S.2d 938, 298 N.E.2d 105)) expounded the policy of this State that, where an issue was litigated or might appropriately have been litigated in a prior action, the determination in the prior action bars relitigating the issue in a subsequent action." (Leonard Park Office Plaza v. P & P Sheet Metal Works, Inc., 46 A.D.2d 652, 359 N.Y.S.2d 691 and 51 A.D.2d 536, 377 N.Y.S.2d 639, which barred another action by the same parties on the doctrine of res judicata). The Court of Appeals in Matter of Reilly v. Reid (45 N.Y.2d 24, 28-29, 407 N.Y.S.2d 645, 379 N.E.2d 172) also held that "(i)n properly seeking to deny a litigant two 'days in court', courts must be careful not to deprive him of one (cf. Commissioners of State Ins. Fund v. Low, 3 N.Y.2d 590, 595, 170 N.Y.S.2d 795, 148 N.E.2d 136). Thus, claim preclusion is tempered by recognition that two or more different and distinct claims or causes of action may often arise out of a course of dealing between the same parties even though it is not, except in refined legal analysis, easy to say that a different gravamen is factually involved (see, e. g., Smith v. Kirkpatrick, 305 N.Y. 66, 111 N.E.2d 209). A party's choice to litigate two such claims or causes of action separately does not bar his assertion of the second claim or cause of action (see, Secor v. Sturgis, 16 N.Y. 548, 554)." The question for resolution here is whether or not a different gravamen was the basis of the two complaints and causes of action involved herein. In plaintiff's prior action she sought to recover damages for breach of an oral contract and for fraud. The grounds for dismissal were that the alleged oral contract of employment was barred by the Statute of Frauds (General Obligations Law § 5-701) and that the promissory statements of actions to be performed in the future do not provide a basis for an action in fraud (Adams v. Gillig, 199 N.Y. 314, 92 N.E. 670). (See, Fletcher v. Greiner, 73 A.D.2d 591, 422 N.Y.S.2d 130).

The instant complaint alleges sex discrimination and the tort of abusive discharge. The gravamen set forth in the separate complaints is different and the doctrine of Res Judicata is unavailable. Nor does collateral estoppel apply herein. "The doctrine of collateral estoppel operates where there is an identity of issues which were actually decided on the merits in a prior action and where the parties, or ones in privity with them, had a full and fair opportunity to contest the issues" (W. L. Development Corp. v. Thalgott, 54 A.D.2d 901, 387 N.Y.S.2d 902 citing Vincent v. Thompson, 50 A.D.2d 211, 377 N.Y.S.2d 118).

Defendant also seeks to dismiss each of the causes of action in the instant complaint pursuant to CPLR 3211(a)(7). A pleading, the sufficiency of which is being tested, is deemed to allege whatever can be implied from its statements by fair and reasonable intendment and the whole of it must be considered (Walkovszky v. Carlton, 18 N.Y.2d 414, 419, 276 N.Y.S.2d 585, 223 N.E.2d 6). All of the allegations for the purpose of the motion must be assumed to be true (Barr v. Wackman, 36 N.Y.2d 371, 375, 368 N.Y.S.2d 497, 329 N.E.2d 180; Tobin v. Grossman, 24 N.Y.2d 609, 612, 301 N.Y.S.2d 554, 249 N.E.2d 419). These principles are not antiquated for the Court of Appeals has recently reaffirmed them in Guggenheimer v. Ginzburg (43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17) by stating that "(i)nitially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail..." This is so because "(m)odern pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly pleaded one." (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). The instant complaint meets these tests. Plaintiff's allegations (which must be accepted as true for the purposes of this motion): (1) that defendant used his hegemonic position as her employer to influence her to acquiesce in and importuned her to engage in sexual intercourse with him; (2) that a condition of apprehension on her part was created to the effect that her employment would be terminated if she refused to engage in such sexual intercourse; and (3) that upon her refusal to continue sexual intercourse with defendant her employment was in fact terminated, constitute sexual discrimination. If true, they are violative of the public policy of this state and of the Executive Law of the State of New York (Section 296) which among other provisions prohibits discrimination because of sex. As a result, the cross-motion to dismiss the complaint for failure to state a cause of action is denied.

Defendant further seeks relief pursuant to CPLR 3212 and, on a motion for summary judgment, the Court's inquiry must be directed to a determination of whether the factual issues are genuine (Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184). "If the issue claimed to exist is not 'genuine, but feigned, and ... there is in truth nothing to be tried' summary judgment is properly granted." (Rubin v. Irving Trust Co., 305 N.Y. 288, 306, 113 N.E.2d 424 citing, Curry v. Mackenzie, 239 N.Y. 267, 270, 146 N.E. 375). For this purpose the Court is not limited to a consideration of the pleading itself. Indeed, it is incumbent on the Court to search the proof, as proffered by affidavits or otherwise, to ascertain whether it discloses a real issue rather than a formal, perfunctory or shadowy one (James J. Kelly v. Bank of Buffalo, 32 A.D.2d 875, 302 N.Y.S.2d 60).

The Court has reviewed the affidavits and memoranda of law submitted by the parties herein. These papers reveal that there was more involved in the parties' relationship than was alleged in the pleadings. Plaintiff admits, "I fell in love with him ... that prior to the discharge (the defendant) and I had deviate sexual intercourse over a period of approximately fourteen years ... we were lovers ... our relationship was in continuity. Defendant and I spoke of marriage. We planned our life together after matrimony ... the defendant has stolen my life." Clearly, the relationship between plaintiff and defendant, long before plaintiff's discharge, had undergone a metamorphosis from employer-employee to that of passionate lovers and the course of their lives thereafter bore the indelible imprint of that relationship.

The gravamen of plaintiff's complaint in the instant suit alleges two causes of action, one grounded on sex...