Rubin v. Napoli Bern Ripka Shkolnik, LLP
| Decision Date | 10 April 2023 |
| Docket Number | Index Nos. 154060/2015,450243/2018,Motion Seq. Nos. 022,019,020,021 |
| Citation | 2023 NY Slip Op 31119 (U) |
| Parties | DENISE A. RUBIN, Plaintiff, v. NAPOLI BERN RIPKA SHKOLNIK, LLP, WORBY GRONER EDELMAN & NAPOLI BERN, LLP, NAPOLI BERN & ASSOCIATES, LLP and PAUL J. NAPOLI, Defendants. PAUL J. NAPOLI, Third-Party Plaintiff, v. MARC J. BERN and ALAN RIPKA, Third-Party Defendants PAUL J. NAPOLI, Plaintiff, v. DENISE A. RUBIN, Defendant |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 019) 530, 531,532, 533, 534, 535, 536, 537, 538, 539 540, 541,542, 543, 544, 545, 546, 547, 548, 549, 550, 551 552, 553, 554, 555, 556, 557, 558, 559, 560, 561,562, 563 564, 667, 671, 675, 725, 726, 727, 728, 729, 730, 731,732, 733, 734, 735, 736, 737, 738, 739, 740, 741,742, 743, 744, 745, 746, 747, 748, 757 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 020) 565, 566, 567, 568, 569, 570, 571,572, 573, 574, 575, 576, 577, 578, 579, 580, 581,582, 583, 584, 585, 586, 587, 588, 589, 590, 591,592, 593, 594, 595, 668, 672, 676, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 751, 753, 758, 759 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 021) 596, 597, 598, 599, 600, 601,602, 603, 604, 605, 606, 607, 608, 609, 610, 611,612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 656, 669, 673, 677, 718, 719, 720, 721, 722, 723, 724, 750, 761,773, 774, 775, 776, 777, 778, 779, 780, 781,782, 783, 784, 785, 786, 787, 788, 789, 790, 791,792, 793, 794, 795, 796, 797, 798,799,800,801,802 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 022) 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641,642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 663, 665, 670, 678, 679, 680, 681,682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693,694,695,696, 752,760, 768, 769 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 246, 247, 248, 249, 250, 251,252, 253, 254, 255, 256, 257, 258, 259, 260, 261,262, 263, 264, 265, 266, 267, 268, 269, 274, 276, 277, 283, 284, 285, 286 were read on this motion for SUMMARY JUDGMENT
The following e-filed documents, listed by NYSCEF document number (Motion 007) 210, 211,212, 213, 214, 215, 216, 217, 218, 219, 220, 221,222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241,242, 270, 273, 275 were read on this motion for _SUMMARY JUDGMENT
Plaintiff Denise A. Rubin (Rubin), an attorney formerly employed as general counsel and appellate counsel by defendants Napoli Bern Ripka Shkolnik, LLP and Worby Groner Edelman &Napoli Bern, LLP, alleges employment discrimination and breach of contract against her former employers and one of the firms' partners, defendant Paul J. Napoli (Napoli). Napoli, in turn, asserts claims for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487 against Rubin for events that occurred while Rubin represented Napoli personally.
In Action No. 1, Napoli Bern Ripka Shkolnik, LLP, Worby Groner Edelman &Napoli Bem, LLP, and Napoli Bern &Associates, LLP (collectively, the Law Firm defendants) move, pursuant to CPLR § 3212, for summary judgment dismissing the amended complaint in its entirety (motion sequence number 019).
Defendant/counterclaim plaintiff Napoli moves, pursuant to CPLR § 3212, for summary judgment dismissing the discrimination and retaliation claims as against him (motion sequence number 020). Napoli also moves for summary judgment on his claims alleging legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487 (motion sequence number 021).
Rubin moves, under CPLR § 3212, for summary judgment dismissing the Law Firm defendants' counterclaim for breach of her employment agreement. Rubin also moves for summary judgment dismissing Napoli's counterclaim for tortious interference with contract (motion sequence number 022).
In Action No. 2, defendant/counterclaim plaintiff Rubin moves for summary judgment dismissing the complaint (motion sequence number 006).
Napoli moves for summary judgment dismissing Rubin's counterclaims for violations of Judiciary Law § 487, abuse of process, and malicious prosecution (motion sequence number 007).
Motion sequence numbers 019, 020, 021, and 022 in Action No. 1, and motion sequence numbers 006 and 007 in Action No. 2, are consolidated for disposition.
The following facts are undisputed unless otherwise indicated. Rubin is an attorney admitted to practice in the State of New York since 1991 (NY St Cts Elec Filing [NYSCEF] Doc No. 563 ¶ I).[1] Rubin was hired as an associate attorney by the Law Finn defendants in January 2003 (id., ¶ 2). Rubin entered into an employment agreement with the Law Firm defendants in 2004, which was deemed retroactively effective to May 1, 2003 (id., ¶ 3). On March 19, 2007 the parties subsequently entered into a new employment agreement, which replaced the previous agreement (id., ¶ 4).
Napoli and Marc Bern were equal partners of the firm (id., ¶ 9; NYSCEF Doc No. 543, Bem tr at 43). Rubin alleges that Napoli was "primarily responsible for making employment, promotion and compensation decisions at the Napoli Firm" (NYSCEF Doc No. 532, verified amended complaint ¶ 4).
Rubin testified at her deposition that she was hired as an associate attorney, and handled appeals, research and substantive writing (NYSCEF Doc No. 536, Rubin tr at 13). Within the first couple of years, Rubin began reviewing other attorneys' research and writing (id.). In the summer of 2008, Rubin was promoted to general counsel (id. at 19). As general counsel, Rubin was responsible for responding to disciplinary grievance complaints against the firm and the individual attorneys working for the firm (id. at 20). Rubin testified that she was also responsible for assisting Napoli and Bern with professional liability insurance (id.). Rubin also oversaw the work of outside counsel (id.).
When asked about her trial experience, Rubin testified that her experience was "minimal," and "second-seated" a medical malpractice trial (id. at 69). Rubin testified that she was "[n]ot formally" a manager of employees, and that employees did not report to her on a day-to-day basis (id. at 83). Rubin testified that her starting salary was $ 110,000 (id. at 97). When she signed her employment agreement in 2008, her salary increased to $150,000 (id.). From 2007 through September 2013, Rubin received three salary increases, which resulted in annual salaries of $165,000, $185,000, and $200,000 (id. at 98-99). In September 2013, Rubin was given an additional 25% salary increase, which resulted in an annual salary of $250,000 (id.).
Rubin testified that she did not complain that she was being discriminated against based on her gender; "I don't believe that I phrased it in terms of, you are not making me a partner because I am a woman, but I did phrase it in terms of, he keeps hiring one man after another over my head, who are less experienced, who have less responsibility and calling them partner" (id. at 109-110).
Napoli testified that there were a "variety of reasons" why Rubin was not made a partner (NYSCEF Doc No. 540, Napoli tr at 116). He testified that Rubin was the only person that held the title of general counsel; "[s]he wasn't bringing in business like the other partners were bringing in business"; "[s]he didn't have the ability to try cases"; "we needed a unanimous vote of the different partners in order to have someone become a partner," and "[w]e didn't have a unanimous vote" (id. at 116-117). Bern testified that he never recommended that Rubin become a partner because of her "inability to come to work on time" (NYSCEF Doc No. 543, Bem tr at 108, 135-136). Even though she was not given the title of partner, she was "very well paid" (id. at 136).
On April 16, 2013, Rubin sent a memorandum to Napoli and Bem regarding her past and future compensation. In that memorandum, she stated:
(NYSCEF Doc No. 737 at 2). Rubin alleges that the Law Firm defendants failed to make the promised payments, other than several payments on relatively small cases (NYSCEF Doc No. 532, verified amended complaint ¶ 22).
According to Rubin, on September 4, 2014, Napoli sent her an email asking her about an email that Bem had sent about a certain section of the firm's handbook (NYSCEF Doc No. 536, Rubin tr at 136). She replied to Napoli that she did not know why or which section of the handbook (id. at 136-137). Rubin admitted that she was not being truthful (id. at 139). Rubin testified that Napoli teiminated her within "several hours" by email (id. at 141). She spoke with Bem, who told her, "Go back to your...
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