Thoreson v. Penthouse Intern., Ltd.

• Decision Date: 23 October 1990
• Citation: 563 N.Y.S.2d 968,149 Misc.2d 150
• Parties: , 59 Fair Empl.Prac.Cas. (BNA) 1085, 55 Empl. Prac. Dec. P 40,457 Marjorie Lee THORESON, a/k/a Anneka diLorenzo, Plaintiff, v. PENTHOUSE INTERNATIONAL, LTD. and Robert Guccione, Defendants.
• Court: New York Supreme Court

Page 968

563 N.Y.S.2d 968

149 Misc.2d 150, 59 Fair Empl.Prac.Cas. (BNA) 1085,

55 Empl. Prac. Dec. P 40,457

Marjorie Lee THORESON, a/k/a Anneka diLorenzo, Plaintiff, v. PENTHOUSE INTERNATIONAL, LTD. and Robert Guccione, Defendants.

Supreme Court, New York County Individual Assignment Part 6.

Oct. 23, 1990.

Murray Schwartz, New York City, for plaintiff.

Jeffrey H. Daichman, Greenspoon, Gaynin, Daichman & Marino, New York City, for defendants.

ELLIOTT WILK, Justice:

Plaintiff brought this action against defendants Penthouse International, Ltd. and Robert Guccione to recover damages for fraud, misrepresentation, unjust enrichment, quantum meruit, breach of contract, prima facie tort, intentional infliction of emotional harm and sexual harassment. Plaintiff also seeks an accounting.

Penthouse International, Ltd. is the publisher of Penthouse Magazine. Guccione is the founder, chairman and principal shareholder of Penthouse International, Ltd.

Plaintiff, Marjorie Thoreson, worked for Penthouse under the name Anneka diLorenzo from 1973 until 1980. She grew up in St. Paul, Minnesota. When she was twelve or thirteen, her parents were involved in a bitter divorce. When she was fifteen, plaintiff travelled to Los Angeles to seek her fortune. While in California, she had some minor brushes with the law. She found work as a cocktail waitress, a topless dancer, and a receptionist. She also studied acting and entered beauty contests. She did some work as a model and as an actress.

In 1973, she was impressed by a television interview of Guccione and sent some test photos to Penthouse. Guccione met with her in Los Angeles, after which he agreed to make her Penthouse Pet of the Month for September. Plaintiff was flown to New York and then to London, where she was photographed by Guccione. While in London, they became intimate. She was twenty years old.

Plaintiff told defendant that she aspired to a career as an actress. Defendant assured her that he would use his contacts to assist her. After about one week in London, they returned to New York. In June, 1973, plaintiff returned to Los Angeles. While in the taxi to the airport, plaintiff signed a management agreement with Penthouse.

It appears that the agreement was unique in the world of "Pets." The agreement generally provided that Penthouse would guide Thoreson in her career in the entertainment field. The contract noted plaintiff's inexperience and unfamiliarity with the entertainment area and her need for "supervised guidance and specialized training to develop her talents". Penthouse agreed to act as Thoreson's personal representative, general advisor and to use its best efforts to supervise, guide and direct her career. Penthouse was to assist plaintiff in the selection of suitable roles and projects in furtherance of her career in public entertainment. In exchange, plaintiff granted defendants exclusive control over her career and exclusive rights to commissions. In addition, plaintiff executed a power of attorney to allow Penthouse to handle her finances and to receive payments on her behalf.

Plaintiff was soon contacted by defendant with an offer to appear in Viva, a magazine published by Guccione. She appeared on the cover of the December issue.

Plaintiff also accepted an opportunity to do a fall, 1973 promotion tour for Penthouse and Viva. She returned to Los Angeles after the tour.

In 1974, she took acting classes, paid for by Penthouse, and made several promotional appearances for Penthouse. She also urged Guccione to hasten her acting career. Guccione agreed to make her Pet of the Year for 1975 and invited her to live with him in New York. In the spring of 1975, she moved into Guccione's house, where she was given a small room of her own. She did a Penthouse promotional tour after the 1975 Pet of the Year issue, which was followed by an international tour for the United States Department of Defense.

As Pet of the Year, plaintiff was to receive prizes valued at $50,000. She claims that the value of what she received was considerably less than that.

After the Defense Department tour, plaintiff returned to Guccione's New York house. In 1976, she began to hear about the movie Caligula, which was being produced by Penthouse. Plaintiff claims that defendant led her to believe that she might play Caligula's wife. To prepare herself for the role, at Guccione's urging, she had surgery to enlarge her breasts.

While plaintiff was recuperating from the surgery, defendant told her that Caligula's director had hired another actress to play Caligula's wife. He promised to find plaintiff another role in the film.

In the spring of 1976, plaintiff flew to Rome, where Caligula was being filmed. She made a minor appearance and returned to New York. The shooting of the movie was completed by Christmas, 1976. Guccione correctly predicted that the film, which had experienced a series of defections, would be a commercial and critical disaster. In an effort to rescue the commercial end, he incorporated two new scenes into the movie.

Guccione returned to the set in January, 1977, with plaintiff and other Penthouse Pets to shoot the scenes. One scene graphically captured plaintiff performing oral sex on a man. The second showed plaintiff and Penthouse Pet Lori Wagner having sex with each other. Plaintiff claims to have performed in the scenes reluctantly and only after having been persuaded that it would further her career.

Plaintiff returned to Rome in the spring of 1977 to do the movie Messalina, in which she had the starring role. She was recruited for the part by Frederico Rosselini, who met plaintiff on the set of Caligula. She did four weeks of promotional work for the film in Italy, after which she went to Florida.

Plaintiff returned to New York in 1978 and, following a lead that she received in Rome, spoke to Mr. Polenco of the William Morris Agency about working as her agent. She auditioned for the lead in Raging Bull but did not get the part. The agency never contacted her again.

In 1978, Guccione told plaintiff that he was upset because his London based financial advisor was not spending enough time in the United States. He told plaintiff to seduce the advisor and to encourage him to move to this country. Plaintiff refused. Defendant insisted that plaintiff do so because it was important to him and to the Penthouse empire. Plaintiff capitulated. Her sexual affair with the financial advisor, carried on during his periodic trips to New York, and guided by Guccione, lasted eighteen months.

In the summer of 1980, defendant encountered difficulty in raising money to open a gambling casino in Atlantic City. Defendant asked plaintiff to sleep with a furniture manufacturer from Milan, who, defendant believed, could assist him with this venture. Plaintiff refused. Defendant told her that she had to do it because she owed him. She did.

Caligula was released in 1980. Promotions were done by plaintiff and Guccione. Defendant told plaintiff that he wanted her to promote Caligula in Japan. Plaintiff refused because her experience on the United States promotional tour had been degrading and humiliating. Defendant refused to discuss plaintiff's reluctance to go. Plaintiff did not go, as a consequence of which she was fired. She never did another film.

With the exception of sexual harassment, I am not persuaded that plaintiff should prevail on any of her causes of action. I believe that defendant tried to promote plaintiff's career as a performer. It is not clear that defendant beckoned plaintiff down an unwanted path or that her acting talent was intentionally subordinated to any of her other attributes. In addition, plaintiff has failed to prove that she was wrongfully denied any of the prizes to which she was entitled by virtue of her selection as Pet of the Year.

I do, however, find in plaintiff's favor on her sexual harassment claim.

The New York State Human Rights Law provides that any person "aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages ..." Exec.Law § 297(9). See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). Actions of an employer which discriminate against an individual in the "terms, conditions or privileges of employment" because of that person's sex are encompassed within the ambit of actionable wrongs under this section. See Exec Law § 292(4) and 296(1)(a). This provision, like other civil rights statutes containing similar language, has been interpreted to prohibit acts of sexual harassment in the workplace. See the incisive analysis of Justice Kristin Booth Glen in Rudow v. Commission on Human Rights, 123 Misc.2d 709, 474 N.Y.S.2d 1005 (S.Ct., N.Y. Co., 1984), aff'd, 109 A.D.2d 1111, 487 N.Y.S.2d 453 (1st Dept., 1985), appeal denied, 66 N.Y.2d 605, 499 N.Y.S.2d 1025, 489 N.E.2d 1302 (1985); see e.g. Salvatore v. New York State Division of Human Rights, 118 A.D.2d 715, 500 N.Y.S.2d 47 (2nd Dept., 1986); Matter of State University of New York v. State Human Rights Appeal Board, 81 A.D.2d 688, 438 N.Y.S.2d 643 (3rd Dept., 1981), aff'd, 55 N.Y.2d 896, 449 N.Y.S.2d 29, 433 N.E.2d 1277 (1982). Plaintiff's cause of action based on her claim of sexual harassment is, therefore, cognizable under Executive Law § 297(9).

Under the Human Rights Law ("HRL"), an employer is prohibited from exploiting a dominant position of power in the workplace by imposing sexual demands upon an employee as an implicit condition of continued employment. Any attempt by an employer to use the terms, conditions or privileges of employment to coerce an employee, targeted on the basis of gender, to agree to participate in sexual activity is a form of sex discrimination outlawed by state law. Proof of such discriminatory conduct on the part of an employer suffices to trigger liability under the Executive Law. See Cullen v. Nassau County...