Whitehurst v. 230 Fifth, Inc.

• Decision Date: 21 February 2014
• Docket Number: No. 11 Civ. 767(KPF).,11 Civ. 767(KPF).
• Citation: 998 F.Supp.2d 233
• Parties: Christina WHITEHURST, et al., Plaintiffs, v. 230 FIFTH, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

998 F.Supp.2d 233

Christina WHITEHURST, et al., Plaintiffs,

v.230 FIFTH, INC., et al., Defendants.

No. 11 Civ. 767(KPF).

United States District Court, S.D. New York.

Feb. 21, 2014.

John J. Nonnenmacher, Bader, Yakaitis & Nonnenmacher, LLP, New York, NY, for Plaintiffs.

Carolyn Diane Richmond, Glenn Sklaire Grindlinger, Fox Rothschild, LLP, James M. Lemonedes, Ernest Edward Badway, Fox Rothschild, Attorneys at Law, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

This case involves allegations by 13 plaintiffs (“Plaintiffs”), all African–American persons,¹ that Defendant 230FA LLC, doing business as 230 Fifth Avenue, pled herein as 230 Fifth, Inc. (“230 Fifth”), accompanied by certain unidentified individual employees thereof (collectively “Defendants”), discriminated against them on the basis of their race in violation of federal, state, and city law, and further committed state-law breach of contract. Defendants have pled counterclaims against Plaintiffs, alleging tortious interference with prospective economic advantage and tortious interference with contract. Pending before the Court are competing motions for summary judgment. Defendants move for summary judgment as to all of Plaintiffs' claims for relief, including as to two particular plaintiffs on the grounds of judicial estoppel. Plaintiffs move for summary judgment as to all of Defendants' counterclaims. For the reasons set forth in the remainder of this Opinion, Defendants' motion is denied in part as to Plaintiffs' discrimination claims, granted in part as to Plaintiffs' breach of contract claims, denied as to the claims of Plaintiff Cletus Hyacinth, and granted as to the claims of Rainell Owens. Plaintiffs' cross-motion for summary judgment is denied in part as to Defendants' tortious interference with prospective economic advantage counterclaim and granted in part as to Defendants' tortious interference with contract counterclaim.

BACKGROUND²

A. The Events of October 10, 2009

This litigation arises from events taking place on October 10, 2009, when Plaintiff Rainell Owens held a birthday party at 230 Fifth. (Def. 56.1(a) ¶ 38; Pl. 56.1(b) ¶ 38). 230 Fifth is a rooftop lounge at the top of an office building in Manhattan. (Def. 56.1(a) ¶ 1; Pl. 56.1(b) ¶ 1).

The events leading up to October 10 are in dispute. Owens avers that she reached 230 Fifth on the telephone two weeks before the night in question and spoke to an employee of 230 Fifth, known only as “Ruby,” to make a reservation for her party. (Pl. 56.1(b) ¶ 53; Owens Dep. 61:20–23, 62:17–24). Owens maintains she made a reservation for 25 people. (Owens Dep. 68:15–18). During this conversation, as Owens recounts it, she confirmed that there would be no cover charge for a party for whom a reservation had been made ( id. at 66:7–12); that the party attendees would be able to pay cash at the bar ( id. at 71:2–5); and that her guests could bring cupcakes, though not a cake, into the venue for the event ( id. at 71:25–72:9).

Defendants, though not rebutting the specifics of Owens' account, provide undisputed evidence regarding 230 Fifth's general practice when making a reservation for a group.³ Individuals making such a reservation are directed to an event coordinator, who would recommend that the host either arrange an open bar or purchase bottle service with one bottle for every six invited guests. (Def. 56.1(a) ¶¶ 25–31). Bottle service charges run between $250 and $500 per bottle. ( Id. at ¶ 30). 230 Fifth's practice also requires the event coordinator to enter the details of the reservation into a computerized spreadsheet guest list, e-mail the host a confirmation, and provide the host with a credit card authorization form to fill out and return. ( Id. at ¶¶ 32–36). No record of Owens' reservation exists, and Owens never filled out a credit card authorization form; indeed, Owens claims that she was never told any of the information customary in 230 Fifth's reservation practice. (Owens Dep. 62:17–91:22).

The events of October 10 at 230 Fifth are, unsurprisingly, disputed, though the balance of Defendants' Statement of Undisputed Facts goes unrebutted by Plaintiffs.It is undisputed that certain Plaintiffs arrived at 230 Fifth before Owens and ordered drinks, mingling with the crowd. (Def. 56.1(a) ¶¶ 42–43; Pl. 56.1(b) ¶¶ 42–43). Owens arrived shortly before 8:00 p.m. and was admitted to 230 Fifth accompanied by a group of Plaintiffs. (Def. 56.1(a) ¶¶ 48–50; Pl. 56.1(b) ¶¶ 48–50). Owens approached the hostess and inquired about her reservation, to which the hostess responded that no such reservation was recorded. (Def. 56.1(a) ¶¶ 52–55; Pl. 56.1(b) ¶¶ 52–55).⁴ Owens claims that she then called the Ruby with whom she alleges she made her reservation. (Def. 56.1(a) ¶ 56); Pl. 56.1(b) ¶ 56). Defendants insist there was no employee of 230 Fifth named Ruby (Def. 56.1(a) ¶ 57), a fact Plaintiffs controvert by relying on Owens' testimony regarding her conversation with an individual identifying herself as Ruby, and the existence of a 230 Fifth employee named “Yuttie.” (Pl. 56.1(b) ¶ 57).⁵

After a delay of several minutes, Plaintiffs were then seated at a table in the front of the lounge area at 230 Fifth. (Def. 56.1(a) ¶¶ 59–61; Pl. 56.1(b) ¶¶ 59–61).⁶ Plaintiffs were then informed that they would have to purchase bottle service to remain in the area where they were seated. (Def. 56.1(a) ¶ 62; Pl. 56.1(b) ¶ 62).⁷ Owens purchased four bottles at $250 each, while several other Plaintiffs purchased drinks and food directly. (Def. 56.1(a) ¶¶ 64–65; Pl. 56.1(b) ¶¶ 64–65).

Defendants claim, and Plaintiffs contest, that some Plaintiffs were blocking or obstructing a passageway adjacent to their table. (Def. 56.1(a) ¶ 66; Pl. 56.1(b) ¶ 66). It is undisputed that 230 Fifth received complaints from patrons and employees regarding difficulty passing Plaintiffs' table. (Def. 56.1(a) ¶ 67; Pl. 56.1(b) ¶ 67).⁸ A staff member asked the group to sit down. (Def. 56.1(a) ¶ 68; Pl. 56.1(b) ¶ 68). One of Owens' guests was stopped at the door while bringing baked goods into 230 Fifth, but was eventually admitted. (Def. 56.1(a) ¶¶ 69–70; Pl. 56.1(b) ¶¶ 69–70). The presence of these baked goods proved highly controversial, as 230 Fifth grew concerned the baked goods would damage the couch on which certain Plaintiffs were seated. (Owens Dep. 164:22–171:18).

After receiving more complaints from other patrons regarding Plaintiffs, a 230 Fifth manager instructed Plaintiffs to leave the lounge, though the conduct and content of this interaction—and its legal significance—are hotly disputed between the parties. (Def. 56.1(a) ¶ 73; Pl. 56.1(b) ¶ 73). Shortly thereafter, the group left 230 Fifth; Owens was not charged for the bottle service she ordered. (Def. 56.1(a) ¶¶ 74–75; Pl. 56.1(b) ¶¶ 74–75).

Defendants contend that after Plaintiffs left the club, certain members of their party remained outside on the sidewalk. (Answer ¶ 185). It is undisputed that a line of people stood waiting to enter 230 Fifth. (Def. 56.1(b) ¶ 5).⁹ There, Defendants allege, a “minimum [of] three or five” members of Plaintiffs' party (Rozenberg Dep. 49:2–3) blocked the entrance to the lounge by standing in the small area in front of the door ( id. at 46:24–49:9) for more than five or ten minutes ( id. at 50:10–21). Another group of Plaintiffs, Defendants insists, told people in line not to enter 230 Fifth ( id. at 51:21–52:5, 70:8–13), singling out African–American individuals in the line and urging them not to give 230 Fifth their business ( id. at 52:6–12). Salmon Rozenberg, a 230 Fifth employee, testified that he saw “several groups” ( id. at 80:21) of people step out of line during this alleged incident, though he could not state “the exact number,” nor whether “any of those people” came back later ( id. at 80:23–81:4).

B. Procedural History

On January 13, 2011, Plaintiffs notified Defendants, in accordance with New York Civil Rights Law §§ 40–41, that they intended to file a complaint alleging discriminatory treatment; they included with that notice copies of a summons and a verified complaint. (Dkt. # 1 ¶¶ 1–2). Defendants timely removed the action to this Court on February 3, 2011. (Dkt. # 1). The Complaint alleged violations of federal civil rights law, specifically, 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988, and 2000a; as well as the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (“NYSHRL”); the New York Civil Rights Law, N.Y. Civ. Rights Law §§ 1 to 91 (“NYCRL”); the New York City Human Rights Law, N.Y. City Admin. Code §§ 8–101 to 8–131 (“NYCHRL”), and common-law breach of contract. (Dkt. # 1, Ex. A ¶¶ 72–115).

On March 11, 2011, Defendants moved to dismiss all claims in the Complaint except for Plaintiffs' breach of contract claim (Dkt. # 6–8), and simultaneously entered counterclaims against Plaintiffs for tortious interference with prospective economic advantage and tortious interference with contract (Dkt. # 10 ¶¶ 69–84). Plaintiffs did not timely respond to Defendants' counterclaims against them, and accordingly Defendants moved for default judgment as to their counterclaims on April 14, 2011. (Dkt. # 14–16). Plaintiffs opposed Defendants' motion to dismiss on April 18, 2011 (Dkt. # 18), and Defendants made a reply in further support of their motion to dismiss on April 25, 2011 (Dkt. # 9). Plaintiffs then opposed Defendants' motion for default judgment on April 27, 2011 (Dkt. # 20), and Defendants replied in further support of that motion on May 4, 2011 (Dkt. # 22). By Opinion and Order of July 26, 2011, 2011 WL 3163495, the Court granted in part and denied in part Defendants' motion to dismiss, dismissing Plaintiff's claims for relief pursuant to 42 U.S.C. §§ 1983, 1985, 1986, 1988, 2000a, and a duplicative claim under § 1981, but permitting Plaintiffs' claims under § 1981 and the NYSHRL, the NYCRL, and the NYCHRL. (Dkt. # 23). ¹⁰

On August 9, 2011, Defendants answered...