Thoreson v. Penthouse Intern., Ltd.

• Decision Date: 02 April 1992
• Citation: 179 A.D.2d 29,583 N.Y.S.2d 213
• Court: New York Supreme Court — Appellate Division
• Parties: , 59 Fair Empl.Prac.Cas. (BNA) 1092 Marjorie Lee THORESON a/k/a Anneka DiLorenzo, Plaintiff-Respondent, v. PENTHOUSE INTERNATIONAL, LTD. and Robert C. Guccione, Defendants-Appellants.

Page 213

583 N.Y.S.2d 213

179 A.D.2d 29, 59 Fair Empl.Prac.Cas. (BNA) 1092

Marjorie Lee THORESON a/k/a Anneka DiLorenzo, Plaintiff-Respondent, v. PENTHOUSE INTERNATIONAL, LTD. and Robert C. Guccione Defendants-Appellants.

Supreme Court, Appellate Division First Department.

April 2, 1992.

Bettina B. Plevan, New York City, of counsel (Myron D. Rumeld and Jeffrey H. Daichman, with her on the brief, Proskauer Rose Goetz & Mendelsohn and Greenspoon, Srager, Gaynin, Daichman & Marino, attorneys), for defendants-appellants,

Murray Schwartz, New York City, for plaintiff-respondent (Steven B. Blau, on the brief),

Dorchen A. Leidholdt and Wendy C. Lecker, New York City, of counsel, on behalf of Women's Bar Ass'n of the State of N.Y.; Nat. Organization for Women--New York City; Nat. Coalition Against Sexual Assault; Nat. Women's Party; New York State Coalition Against Domestic Violence; Women Against Pornography; Minnesota Coalition for Battered Women; Brooklyn Women's Anti-Rape Exchange; D.C. Feminists Against Pornography; Men Against Pornography of New York City, and Men's Anti-Rape Resource Center, as amici curiae,

Nadine Taub, Newark, N.J., of counsel (Rutgers Law School-Newark) on behalf of Women's Rights Litigation Clinic and Women's Legal Defense Fund, as amici curiae.

Catharine A. MacKinnon, Ann Arbor, Mich., as amicus curiae.

Before ROSENBERGER, J.P., and WALLACH, KASSAL and RUBIN, JJ.

RUBIN, Justice.

On appeal, defendants contend that the award of compensatory damages is not supported by the evidence and that punitive damages are unavailable and, in any event, excessive. The Trial Justice found that plaintiff was pressured into engaging in sexual activity with defendant Robert Guccione's business associates, specifically an 18-month liaison with a financial advisor and a single contact with an Italian furniture manufacturer. The court further concluded that plaintiff's compliance was an implicit condition of her employment which was terminated when she refused to participate in a promotional tour in Japan because she "was afraid what he was going to ask me to do on the tour" and "who he was going to ask me to sleep with next." The court commented, "plaintiff's testimony concerning these matters was contraverted [sic] only by defendant Guccione's blanket denial that the events took place. I do not believe him."

As this court noted in Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-545, 554 N.Y.S.2d 193, "On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (see also, Nightingale Rest. Corp. v. Shak Food Corp., 155 A.D.2d 297, 547 N.Y.S.2d 61, appeal denied, 76 N.Y.2d 702, 558 N.Y.S.2d 891, 557 N.E.2d 1187). We are not prepared to say that the totality of the circumstances, as perceived by the Trial Justice from the testimony, does not permit the conclusion that plaintiff was the victim of quid pro quo sexual harassment (see, Jones v. Flagship Intl., 793 F.2d 714, 719-720 [5th Cir.1986], cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 [1987]; Koster v. Chase Manhattan Bank, 687 F.Supp. 848, 861 [S.D.N.Y.1988]. While the dissenter's observation that plaintiff willingly embarked upon a career which exploited her sexuality is entirely accurate, it does not preclude the subsequent withdrawal of consent to exploitation, nor does it necessarily imply consent to sexual encounters of the type complained of. Even a wife, whose marital contract is deemed to imply consent to intimate physical contact, is free to withhold it (People v. Liberta, 64 N.Y.2d 152, 162-164, 485 N.Y.S.2d 207, 474 N.E.2d 567).

Similarly, it cannot be said that the amount of the compensatory damages awarded by the Trial Justice is without foundation. Plaintiff testified that her experiences resulted in sufficient anguish to cause her to seek counselling from a psychotherapist. The Court of Appeals has emphasized that "medical treatment is not a precondition to recovery. Mental injury may be proved by the complainant's own testimony, corroborated by reference to the circumstances of the alleged misconduct" (Matter of New York City Tr. Auth. v. State Div. of Human Rights, 78 N.Y.2d 207, 216, 573 N.Y.S.2d 49, 577 N.E.2d 40). As held in Batavia Lodge No. 196, Loyal Order of Moose v. New York State Div. of Human Rights, 35 N.Y.2d 143, 147, 359 N.Y.S.2d 25, 316 N.E.2d 318, "due to the strong anti-discrimination policy spelled out by the Legislature of this State, an aggrieved individual need not produce the quantum and quality of evidence to prove compensatory damages he would have had to produce under an analogous provision, and this is particularly so where, as here, the discriminatory act is intentionally committed" (see also, Cullen v. Nassau County Civ. Serv. Commn., 53 N.Y.2d 492, 497, 442 N.Y.S.2d 470, 425 N.E.2d 858). Nor can we conclude that the award is excessive as a matter of law (Matter of New York City Tr. Auth. v. State Div. of Human Rights, supra).

This case presents the issue of whether punitive damages are available in an action brought pursuant to the Executive Law § 297 (subd. 9). The question is essentially one of first impression. While our decision in Murphy v. American Home Prods., 136 A.D.2d 229, 527 N.Y.S.2d 1, has been cited as possibly endorsing such a position (Seitzman v. Hudson River Assoc., 143 Misc.2d 1068, 1072-1073, 542 N.Y.S.2d 104), the issue was never reached in that case. Likewise, certain Federal cases have suggested, with varying degrees of conviction, that under the New York Human Rights Law (Executive Law § 290 et seq.), as opposed to Title VII of the Civil Rights Act of 1964 (as amended, 42 U.S.C. § 2000e et seq.), a plaintiff "may be entitled to punitive damages" (Selbst v. Touche Ross & Co., 587 F.Supp. 1015, 1017 [S.D.N.Y.1984]; see also, Giuntoli v. Garvin Guybutler Corp., 726 F.Supp. 494 [S.D.N.Y.1989]; O'Brien v. King World Prods., 669 F.Supp. 639 [S.D.N.Y.1987]. Lippa v. General Motors Corp., 760 F.Supp. 1062, 1066 [W.D.N.Y.1990] went so far as to assert that the Executive Law affords "full compensatory and punitive relief, including damages for suffering and anguish". The cases cited as authority for this proposition, however, Batavia Lodge No. 196, Loyal Order of Moose v. New York State, supra, 35 N.Y.2d at 145-146, 359 N.Y.S.2d 25, 316 N.E.2d 318, and Board of Educ. of the Plainedge Union Free School Dist. v. McCall, 108 A.D.2d 855, 485 N.Y.S.2d 357, hold only that an award for mental anguish is a component of compensatory damages. By contrast, Conan v. Equitable Capital Mgt. Corp., 774 F.Supp. 209 [S.D.N.Y.1991], a diversity action for employment discrimination under the Executive Law, dismissed the plaintiff's claim for punitive damages, concluding that nothing in the legislative history of the enactment contemplates such an award (accord, Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, [2d Cir., 1992]. No State court opinion which directly addresses the issue has been brought to this court's attention, and none has been found. Micari v. Mann, 126 Misc.2d 422, 481 N.Y.S.2d 967, cited by the Trial Justice in support of the punitive damages award, is not a case which arises under the Executive Law, and the common-law predicate for a claim of sexual harassment which it espouses has been expressly rejected (Murphy v. American Home Prods., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86).

It is clear that, in a proceeding brought before the New York State Division of Human Rights, "the agency may award only compensatory--not exemplary--damages" (Matter of New York City Tr. Auth. v. State Div. of Human Rights, supra, 78 N.Y.2d at 216, 573 N.Y.S.2d 49, 577 N.E.2d 40). However, Executive Law § 297(9) provides: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate", except under certain circumstances not relevant to this matter. At issue is whether the Legislature, by employing this language, intended punitive damages to be awarded in an action brought before a court.

The liability created by the Executive Law is unknown at common law. As the Court of Appeals observed in Murphy v. American Home Prods., supra, 58 N.Y.2d at 307, 461 N.Y.S.2d 232, 448 N.E.2d 86: "In enacting subdivision 9 of section 297, the Legislature created a new cause of action not previously cognizable, but, in doing so, provided no specific period of limitations for such action. Consequently the institution of civil actions to recover damages for unlawful discriminatory practices under subdivision 9 is governed by the three-year period of limitations prescribed in CPLR 214 (subd 2) applicable to 'an action to recover upon a liability, penalty or forfeiture created or imposed by statute' " (emphasis in original).

Normally an enactment which creates an entirely new cause of action is subject to strict construction, and the courts will not extend the statute beyond its express provisions (McKinney's Statutes § 301[c]. However, the Human Rights Law declares that it "shall be construed liberally for the accomplishment of the purposes thereof" (Executive Law § 300). This statement negates the effect of the general rule of construction and renders this avenue of inquiry unavailing.

The controlling tenet of statutory construction is that an act shall be given the effect intended by the Legislature (McKinney's Statutes § 92[a]. In determining the scope intended to be accorded to the provision for maintenance of an action "for damages and such other remedies as may be appropriate", reference to extrinsic aids to interpretation is helpful (McKinney's Statutes § 120 et seq.). A report...