Opinion
6654 Index 153941/16
05-24-2018
Lawrence BOLIAK, et al., Plaintiffs–Appellants, v. Father Michael P. REILLY, et al., Defendants–Respondents. National Employment Lawyers Association of New York, Amicus Curiae.
Bergstein & Ullrich, LLP, New Paltz (Stephen Bergstein of counsel), for appellants. Law Office of Mark E. Goidell, Garden City (Mark E. Goidell of counsel), for Father Michael P. Reilly, respondent. Kelly Drye & Warren LLP, New York (David Zalman and John Callagy of counsel), for Robert Richard, Greg Manos, St. Joseph by the Sea High School, Cardinal Timothy Dolan and the Archdiocese of New York, respondents. Harrison, Harrison & Assoc., Ltd., New York (Julie Salwen of counsel), for amicus curiae.
Bergstein & Ullrich, LLP, New Paltz (Stephen Bergstein of counsel), for appellants.
Law Office of Mark E. Goidell, Garden City (Mark E. Goidell of counsel), for Father Michael P. Reilly, respondent.
Kelly Drye & Warren LLP, New York (David Zalman and John Callagy of counsel), for Robert Richard, Greg Manos, St. Joseph by the Sea High School, Cardinal Timothy Dolan and the Archdiocese of New York, respondents.
Harrison, Harrison & Assoc., Ltd., New York (Julie Salwen of counsel), for amicus curiae.
Friedman, J.P., Gische, Andrias, Kern, Oing, JJ.
Order, Supreme Court, New York County (Erika M. Edwards, J.), entered September 25, 2017, which, insofar as appealed from as limited by the briefs, denied plaintiffs' cross motion for leave to serve a second amended complaint, inter alia, adding Board of Trustees of defendant St. Joseph by the Sea High School and board chairman Dr. Theodore Strange as defendants, unanimously modified, on the law, to grant the motion except as to adding Dr. Strange as a defendant, and otherwise affirmed, without costs.
Plaintiffs were not required to submit an affidavit of merit or make any other evidentiary showing in support of their motion (see Berkeley Research Group, LLC v. FTI Consulting, Inc., 157 A.D.3d 486, 490, 69 N.Y.S.3d 26 [1st Dept. 2018] ; Hickey v. Steven E. Kaufman, P.C., 156 A.D.3d 436, 66 N.Y.S.3d 474 [1st Dept. 2017] ).
The allegations that plaintiffs were subjected by defendant Father Reilly to a barrage of vulgar, misogynous and ageist remarks and epithets, which defendants Robert Richard and Greg Manos echoed, condoned, and amplified, state causes of action under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107) for gender and age discrimination through a hostile work environment (see Hernandez v. Kaisman, 103 A.D.3d 106, 114–115, 957 N.Y.S.2d 53 [1st Dept. 2012], citing Williams v. New York City Hous. Auth., 61 A.D.3d 62, 80, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ). The allegations also state causes of action for retaliation (see Fletcher v. Dakota, Inc., 99 A.D.3d 43, 51–52, 948 N.Y.S.2d 263 [1st Dept. 2012] ).
With the exception of Dr. Strange, the defendants named in the proposed complaint are subject to potential liability for Reilly's alleged discriminatory conduct either vicariously or as aiders and abettors (see Administrative Code § 8–107[13][a]–[b]; Priore v. New York Yankees, 307 A.D.2d 67, 74, 761 N.Y.S.2d 608 [1st Dept. 2003], lv denied 1 N.Y.3d 504, 775 N.Y.S.2d 781, 807 N.E.2d 894 [2003] ; see also Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 367 [S.D. N.Y.2012] ). Dr. Strange is alleged to be the board's "current" chairman; since he is not alleged to have been a member of the board at any relevant time, the proposed complaint is palpably insufficient as to him.
The proposed complaint states a cause of action against Reilly and Manos for defamation of plaintiff Lawrence Boliak (see Davis v. Boeheim, 24 N.Y.3d 262, 272, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] ; O'Neill v. New York Univ., 97 A.D.3d 199, 212, 944 N.Y.S.2d 503 [1st Dept. 2012] ).