Higgins v. Gladstone Gallery LLC
| Citation | 2023 NY Slip Op 30436 (U) |
| Decision Date | 10 February 2023 |
| Docket Number | Index No. 150934/2022,MOTION SEQ. No. 001 |
| Parties | LAURA HIGGINS, Plaintiff, v. GLADSTONE GALLERY LLC, BARBARA GLADSTONE, and MAX FALKENSTEIN, individually, Defendants. |
| Court | United States State Supreme Court (New York) |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 19,20,21,22,23,24 were read on this motion to/for DISMISSAL.
Plaintiff Laura Higgins (plaintiff), commenced this action seeking damages stemming from her employment and termination of employment with defendant Gladstone Gallery, LLC (the Gallery). Defendants, the Gallery, Barbara Gladstone, the owner and president of the Gallery, and Max Falkenstein, the Gallery's senior partner, now move pursuant to CPLR 3211(a)(7) to dismiss the complaint. Plaintiff opposes the motion, and cross-moves to amend the complaint. For the following reasons, both motions are granted in-part.
According to the complaint, plaintiff commenced her employment with the Gallery September 2016 as the manager. (NYSCEF Doc. No 11 [Complaint], ⁋ 10). Plaintiff claims that at some point during her employment at the Gallery, plaintiff complained about irregularities in the payroll system, Stacey Tunis, the Gallery's financial director, admitted to plaintiff that the Gallery had committed some of the violations. Tunis and Gladstone ignored plaintiffs repeated complaints to address these problems.
Plaintiff also alleges that defendants created a hostile work environment by, inter alia, paying male employees more than female employees even when the males worked in lower-level positions. The complaint also alleges that defendants did not hire a Caucasian person for a job because, particularly in the aftermath of George Floyd's murder, they were eager to diversify the staff and hire a person of color. Defendants also ignored plaintiff when she informed them that a lesbian worker accused defendants of discrimination based on the worker's sexual orientation; they concluded that because the worker's supervisor was also a lesbian, there could be no discrimination.
Plaintiff alleges that after she made the above complaints and requests, "Gladstone began her retaliatory campaign to ruin Plaintiff (id., ⁋ 25). Specifically, "Gladstone harassed and bullied Plaintiff by creating a toxic environment riddled with argumentative comments toward Plaintiff (id., ⁋ 40). Around October 20, 2020, Gladstone allegedly threw a Gallery book at her head (id, ⁋ 75).
Around July 7, 2021, Falkenstein held a meeting with plaintiff, during which he stated that her interactions with Gladstone had become contentious and that their conflicts had put him in the middle of their disputes. When plaintiff attempted to explain that Gladstone's behavior was in retaliation against her for complaining about payroll violations and discrimination, Falkenstein accused her of "pulling the victim card" (id., ⁋ 26). The next day, plaintiff tendered her resignation to Falkenstein, but she was "brushed aside" (id., ⁋ 27). Following these events, around July 9, 2021, plaintiff told Falkenstein that she had been ambushed at the July 7 meeting. In response, he "repeated the patently false claim that Plaintiffs performance was sub-par" (id., ⁋ 28). Plaintiff then left her job; the complaint refers to her departure as a "constructive discharge" (id, ⁋ 29).
Shortly thereafter, plaintiff interviewed for a job at the George Condo Studio (the Studio). Around July 16, 2021, the Studio offered her the position. Plaintiff was to start work on August 2, 2021. However, the Studio rescinded the offer around July 28, 2021, the day after her "onboarding meeting" there (see id., ⁋⁋ 31-32). The complaint states, "[u]pon information and belief," that Gladstone defamed plaintiff to George Condo, the Studio's owner, and this was the reason the Studio withdrew the offer (id., ⁋ 33).
The complaint asserts seven causes of action. The first and second causes of action are for retaliation under the New York City Administrative Code (Admin. Code) § 8-107 (1) (e) and the New York Executive Law (Executive Law) §§ 290 et seq, respectively. The complaint bases these claims on plaintiffs complaints of discrimination around June 7, 2021, July 8, 2021, and on another date that is not specified but which was prior to July 9, 2021, when plaintiff left the Gallery. The complaint also refers to Gladstone's supposed comments to Condo as retaliatory. The complaint alleges monetary injury along with "severe, mental anguish and emotional distress, including but not limited to depression, humiliation, embarrassment, stress and anxiety, loss of self-esteem and self-confidence, and emotional pain and suffering for which she is entitled to an award of monetary damages" (NYSCEF Doc. No. 11, ⁋⁋ 46, 62). The complaint further states that plaintiff should be awarded attorney's fees as punitive damages because of the extreme nature of defendants' mistreatment of her. The seventh cause of action asserts that the allegedly retaliatory conduct also violated Labor Law § 215.
The third cause of action alleges that co-defendant Gladstone intentionally inflicted emotion distress upon plaintiff. It specifies that Gladstone "engaged in extreme and outrageous conduct that consisted of bullying, harassment, and culminated in a physical assault of and throwing a Gallery handbook at Plaintiff by Gladstone when Gladstone threw a Gallery handbook at her" (id., ⁋ 65). Gladstone allegedly threw the handbook at plaintiff around October 20, 2020. This is also the basis of the fifth cause of action, for assault. As an alternative to the third and fifth causes of action, the complaint contains a sixth cause of action against Gladstone for prima facie tort.
Finally, the fourth cause of action is against Gladstone is for defamation. The complaint asserts the claim on information and belief. Specifically, it refers to the contention that Gladstone defamed plaintiff to Condo, calling her a poor employee. The complaint alleges that Gladstone's defamatory statements resulted in Condo's withdrawal of the job offer.
On a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground that the action is barred by the statute of limitations, the defendant must establish that the time to sue expired (Benn v Benn, 82 A.D.3d 548, 548 [1st Dept 2011]). Under CPLR § 215 (3), assault and intentional infliction of emotional distress (IIED) claims must be asserted within one year of the alleged occurrence. As the complaint alleges that Gladstone assaulted plaintiff around October 20, 2020, and as plaintiff did not file the complaint until January 31, 2022, defendants argue that plaintiffs claims for assault and IIED must be dismissed.
Defendants point to Gallagher v Directors Guild of Am. (144 A.D.2d 261, 261-262 [1st Dept 1988]), which applies CPLR § 215 (3) to claims for IIED, in support of their position that plaintiffs third cause of action is untimely (see Winslow v New York-Presbyt./Weill-Cornell Med. Ctr., 203 A.D.3d 533, 533 [1st Dept 2022]). The pertinent part of the cause of action alleges that the infliction of distress "culminated" in October 20, 2020, when Gladstone purportedly threw the book at her.
In opposition and in support of her cross motion to amend, plaintiff argues that the claims are timely due to Executive Order 202.8 and its subsequent extensions. As is relevant here, the March 20, 2020, Order states:
"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action ... as prescribed by the procedural laws of the state ... is hereby tolled from the date of this executive order until April 19, 2020."
Subsequent orders extended the toll through November 3, 2020. Accordingly, plaintiff asserts that the limitations periods for her assault and intentional infliction of emotional distress claims were extended for 228 days beyond the expiration of the statute of limitations and, as such, are timely.
The Court rejects plaintiffs argument. "A toll suspends the running of the statute of limitations for a finite time period" (Murphy v Harris, 210 A.D.3d 410, 411 [1st Dept 2022]). Thus, as defendants argue in reply, the Executive Orders did not add 228 days to the statute of limitations periods for all claims that would have expired between March 20, 2020, and November 3, 2020. Instead, the Executive Orders tolled the limitations period from the date that the cause of action arose until November 3, 2020. Thus, in Murphy, the First Department determined that a wrongful death claim that had six months and ten days left in the statutory limitations period on March 20, 2020, still had six months and ten days left in the limitations period when the toll ended on November 3, 2020 (id. at 411-412). Notably, it did not add the entire tolled period to the claim.[1]
Here, the causes of action based on the alleged assault were tolled from October 20, 2020, the date of the incident, to November 3, 2020. Plaintiff had the full limitations period of one year from November 3, 2020, or until November 3, 2021, to file these claims. Plaintiff did not file the complaint until well over two months after the deadline. Accordingly, the third and fifth causes of action are untimely and must be dismissed.
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