Poolt v. Brooks

• Decision Date: 18 January 2013
• Docket Number: No. 110024/09.,110024/09.
• Citation: 967 N.Y.S.2d 869,2013 N.Y. Slip Op. 50116,38 Misc.3d 1216
• Parties: Jessica POOLT, Plaintiff, v. David H. BROOKS, Jeffrey Brooks, Bulletproof Enterprises Inc., Perfect World Partners, LLC, Perfect World Enterprises, L.L.C., Defendants.
• Court: New York Supreme Court

38 Misc.3d 1216
967 N.Y.S.2d 869
2013 N.Y. Slip Op. 50116

Jessica POOLT, Plaintiff,
v.
David H. BROOKS, Jeffrey Brooks, Bulletproof Enterprises Inc., Perfect World Partners, LLC, Perfect World Enterprises, L.L.C., Defendants.

No. 110024/09.

Supreme Court, New York County, New York.

Jan. 18, 2013.

Phillips & Phillips, Attorney for plaintiff.

Garvey Schubert Barer, Attorney for defendant.

ANIL C. SINGH, J.

Defendants move for summary judgment pursuant to CPLR 3212 dismissing (i) the first, second, third, fourth, fifth, sixth, seventh and ninth causes of action against Jeffrey Brooks (“Jeffrey”) ¹ and Bulletproof Enterprises, Inc. (“Bulletproof”), and (ii) all causes of action against Perfect World Partners, LLC and Perfect World Enterprises, L.L.C. (collectively, “Perfect World”).

Plaintiff cross-moves pursuant to CPLR 3212 for summary judgment on her complaint against Bulletproof and Jeffrey's brother, David H. Brooks (“David”).

Bulletproof is a large horse breeding and racing company owned by Jeffrey, who operated the business from apartment 19–A at 200 East 64th Street in Manhattan. David owned two businesses, a hedge fund and his own horse racing business (Perfect World), which he ran from apartment 19–C in the same building. In April 2009, Jeffrey hired plaintiff to work for Bulletproof as a bookkeeper. She worked there for two weeks, and then did not go back or even call to quit.

Instead, alleging that David was her boss and he sexually harassed her to such an extent she could not return to work even though she needed the money (complaint, ¶ 39), plaintiff brought the instant action for sexual harassment, constructive discharge and infliction of emotional distress against the two Brooks brothers and their respective companies.

Based on her two-week employment, plaintiff's nine-count complaint (defendants' exhibit C) seeks: (i) a judicial declaration that defendants violated Executive Law § 296 and Admin Code § 8–107 because they “harassed, discriminated against, constructively discharged, and retaliated against [p]laintiff of the basis of sex”; (ii) “past and future” lost wages and benefits and “back pay and front pay”; (iii) “compensatory damages for mental, emotional and physical injury, distress, pain and suffering and injury to reputation [a claim not otherwise alleged in the complaint]”; (iv) punitive damages; (v) three days of unpaid wages; and, (vi) “attorney's fees, costs, and [litigation] expenses.”

“It is declared policy of the State to afford every individual within this State an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity ... because of discrimination ... not only threatens the rights and proper privilege of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants' “ (City of Schenectady v. State Division of Human Rights, 37 N.Y.2d 421, 428 [1975], rearg den 38 N.Y.2d 856 [1976], citations omitted). The abuse of the anti-discrimination laws enacted in furtherance of this policy, by unscrupulous plaintiffs who take advantage of laws affording vital protection to society by filing frivolous—sometimes even mendacious—claims thereunder for personal financial gain, is just as much of a threat. At a discrimination trial, it is the job of the jury to decide whether a plaintiff's claim is meritorious or frivolous. When a party, usually the defendant, moves for summary judgment, it is asking the court to make that determination instead. Courts are not infallible. In undertaking such a task, a court should be mindful to prevent errors which could result in the dismissal of a worthy claim, even if it means risking an unworthy claim proceeding to trial. In other words, it must err on the side of the plaintiff. Toward this aim, many rules and standards have evolved for the court to follow.

Applicable Standards I. Summary Judgment

It is well established that on a motion for summary judgment the court is to decide only matters of law (see S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338 [1974] ), accepting “as true the evidence presented by the opposing party” (Hotopp Associates, Ltd. v. Victoria's Secret Stores, Inc., 256 A.D.2d 285, 683 N.Y.S.2d 41 [1st Dept 1998] ), drawing all reasonable inferences in favor of the non-moving party (see Garcia v. J.C. Duggan, Inc., 180 A.D.2d 579, 580, 580 N.Y.S.2d 294 [1st Dept 1992] ), and basing its decision “on the version of the facts most favorable to” that party (McLaughlin v. Thaima Realty Corp., 161 A.D.2d 383, 384, 555 N.Y.S.2d 125 [1st Dept 1990] ). It is the jury which shall decide questions of fact, and where “competing inferences may reasonably be drawn” they shall be drawn by the jury (Myers v. Fir Cab Corp., 64 N.Y.2d 806, 808 [1985] ).

Where there is conflicting testimony, a summary judgment motion must be denied since the court may not pass on issues of credibility (Communications & Entertainment Corp. v. Hibbard Brown & Company, Inc., 202 A.D.2d 191, 608 N.Y.S.2d 214 [1st Dept 1994] ). Since summary judgment “deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues” (Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974];Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978] ), and should not be granted where the issue is even arguable (see Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957], rearg den 3 N.Y.2d 941 [1957] ). “[F]actual disputes are not enough; they must relate to material issues” (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312 [2004], emphasis in original). The existence of a material issue must be established by “evidentiary proof in admissible form,” not “rank speculation” (Tungsupong v. Bronx–Lebanon Hospital Center, 213 A.D.2d 236, 237, 623 N.Y.S.2d 866 [1st Dept 1995] ). “[W]hen there is nothing more than a metaphysical doubt as to the material facts,' summary judgment is proper” (Pemrick v. Stracher, 67 F.Supp 2d 149, 160 [EDNY 1999] ).

“Summary judgment should be used sparingly' when, as is often the case in sexual harassment claims, state of mind or intent are at issue.... However, plaintiff may not avoid summary judgment by simply declaring that state of mind is at issue.... Summary judgment applies no less to [discrimination] cases than to commercial cases or other areas of litigation, ... and plaintiff must still offer concrete evidence from which a reasonable juror could return a verdict in her favor” (Distasio v. Perkin Elmer Corporation, 157 F.3d 55, 61–62 [2d Cir1998], citations omitted).

II. State Human Rights Law

“The standards relating to burden and order of proof in employment discrimination cases brought under the Human Rights Law are the same as those established by the United States Supreme Court ... for cases brought pursuant to Title VII of the Civil Rights Act of 1964” (Sogg v. American Airlines, Inc., 193 A.D.2d 153, 155–156, 603 N.Y.S.2d 21 [1st Dept 1993], app dism 83 N.Y.2d 846 [1994], lv den 83 N.Y.2d 754 [1994], rearg den 83 N.Y.2d 954 [1994] ). “Thus, because both the Human Rights Law and title VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful” (Forrest v. Jewish Guild for the Blind, supra, 3 N.Y.3d at 305, n. 3, 786 N.Y.S.2d 382, 819 N.E.2d 998, citations omitted).

The “level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low” (Hill v. Douglas Elliman–Gibbons & Ives, n.o.r., 1999 WL 34855568 [Sup Ct, N.Y. Co, EJ Goodman, J, 1999], affd 269 A.D.2d 117, 702 N.Y.S.2d 70 [1st Dept 2000], citing de la Cruz v. NYC Human Resources Administration, Dept. of Social Services, 82 F.3d 16, 20 [2d Cir1996], mot den 519 U.S. 805 [1996] ). “However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination' “ (Garside v. Hillside Family of Agencies, n.o.r., 2011 WL 32582, *10 [WDNY 2011] ).

III. New York City Human Rights Law

Defendants' burden with respect to plaintiff's claims under the City's Human Rights Law is more onerous. “The Administrative Code's legislative history clearly contemplates that the New York City Human Rights Law be liberally and independently construed with the aim of making it the most progressive in the nation” (Farrugia v. North Shore University Hospital, 13 Misc.3d 740, 745, 820 N.Y.S.2d 718 [Sup Ct, N.Y. Co, Acosta, J, 2006] ). In 2005, unsatisfied with how courts were applying the same principles to both the state and city laws, the City Council enacted the Local Civil Rights Restoration Act (“Local Law 85”), which calls for every provision of the City's Human Rights Law to be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v. City of New York, 16 N.Y.3d 472, 477–478 [2011] ). “As a result of this revision, the City [Human Rights Law] now explicitly requires an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language” (Williams v. NYC Housing Authority, 61 A.D.3d 62, 66, 872 N.Y.S.2d 27 [1st Dept 2009, Acosta, J], lv den 13 N.Y.3d 702 [2009] ). Judicial interpretation of similarly worded state or federal “provisions may be used as aids in interpretation only to the extent that the counterpart provisions are viewed as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise” ( id. at 66–67,872 N.Y.S.2d 27, citing section 1 of Local Law 85.

That...