Opinion
Index No. 152385/2023 MOTION SEQ. No. 001
01-12-2024
KATHY BREIDING, Plaintiff, v. HIGH HOPES FILMS: LLC, DENNIS P1LIERE, Defendant.
Unpublished Opinion
MOTION DATE 05/08/2023
DECISION + ORDER ON MOTION
HON. MARY V. ROSADOPART JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3. 4. 5, 6, 7, B, 9, 10, 11. 12.. 13, 14, 15 were read on this motion to/for DISMISS,
Upon the foregoing documents. Defendants Dennis Piliere a/k/a Dennis Cabrini ("Piliere") and High Hopes Films, LLC's ("HHF”) (collectively, ''Defendants5') motion for an Order dismissing Plaintiff Kathy Breiding's ("Plaintiff") claims against them for failure to state a claim, is denied in its entirety. Plaintiffs cross-motion for an Order directing HHF to appear in this action by an attorney, is granted.
I. Background and Procedural History
Defendant Piliere is a part time film director, SAG signatory producer and actor (NYSCEF Doc. 3 at p. 1). Piliere created Defendant HHC "for the purposes of producing low budget independent films in which he and other ad hoc performers can demonstrate and advance their talents" (NYSCEF Doe. 3 at p. 8). Plaintiff alleges that she was occasionally employed by Piliere, through HHC, as an independent contractor to act in his films (NYSCEF Doc. 2 at ¶1).
On April 24, 2023 Plaintiff brought the instant action against Defendants alleging sexual harassment and gender discrimination, retaliation under the New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL"), Intentional Infliction of Emotional Distress, defamation, breach of contract and tortious interference with business relations (NYSCEF Doc, 2). Subsequently, on May 8, 2023 Defendants, pro se, brought the instant motion to dismiss Plaintiffs Complaint for failure to state a claim (NYSCLP Doc. 3).
While Defendants erroneously cite in Federal Rule of Civil Procedure 12(b)(6), the Court deems their motion as filed pursuant to CPLR 3211(a)(7).
II. Discussion
Pursuant to CPLR 3211(a)(7), "[a] party may move for judgment dismissing cine or more causes of action asserted against him on the ground that ...the pleading fails to state a cause of action...." In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, "the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co. 21 N.Y.3d 324, 334 [2013]). "[T]he sole criterion is whether the pleading states a cause of action, and therefore if from its four comers factual allegations are discerned which if taken together can manifest any cause of action, a motion for dismissal must fair (Kusher v King 126 A.D.2d 446, 467 [1st Dept 1987]).
a. Defendants' Motion to Dismiss Plaintiffs first Cause of Action for Sexual Harassment and Gender Discrimination is Denied
It is well established that to state a claim for sexual harassment, a "plaintiff must show that (1) [they] belong to a protected group, (2) [they were] subject to unwelcome sexual harassment and (3) the harassment complained of was based on [their] sex" (Farrugia v North Shore Univ. Hasp., supra, 13 Misc.3d at 745), As Plaintiffs Complaint alleges that "Defendants discriminated against Plaintiff on the basis of her sex and gender by targeting her female characteristics for sexual harassment, and on account of her status as a women altering the terms and conditions of her work, creating a hostile work environment, interfering with her ability to carry out her work duties, and ultimately terminating her employment," Plaintiff has made sufficient allegations to state a claim for sexual harassment and gender discrimination. Accordingly, Defendants' motion to dismiss Plaintiffs First Cause of Action is denied.
b. Defendants1 Motion to Dismiss Plaintiffs Second Cause of Action for Retaliation Under NYSHRL and NYCHRL is Denied
In order to state a claim for retaliation under the NYSHRL "a plaintiff must show that (1) [ they were] engaged in a protected activity, (2) [their] employer was aware that [they] participated in such activity, (3) [they] suffered an adverse employment action based upon [their] activity, and (4) there is a causal connection between the protected activity and the adverse action" (Herskowitz v State of New York, 2023 NY App. Div. Lexis 6990 [1st Dept 2023]).
Similarly, to make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity' and the alleged retaliatory conduct" (Brightman v Prison Health Serv. Inc., 108 A.D.3d 739, 740 [1st Dept 2013]),
Here, Plaintiff alleges in her Complaint that "Defendants retaliated against Plaintiff for complaining about discrimination, by redoubling their efforts to create a hostile work environment based upon sexual harassment, by attacking and undermining her professional reputation, and by terminating her employment." resulting in damages lo Plaintiff (NYSCEF Doc. 2 at ¶ 70. 81). Affording Plaintiff the benefit of every possible favorable inference, the Court finds that Plaintiff has successfully stated claims for retaliation under both the NYSHRL and the NYCHRL, Accordingly, Defendants' motion to dismiss Plaintiffs Second Cause of Action is denied,
c. Defendants' Motion to Dismiss Plaintiffs Third Cause of Action for Intentional Infliction of Emotional Distress is Denied
The First Department has held that "[t]o state a claim for intentional infliction of emotional distress a party must allege (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress'" (Drimer v Zionist Org of Am., 194 A.D.3d 641, 642 [1st Dept 2021]) citing (Scollar v City of New York, 160 A.D.3d 140, 145-146 [1st Dept 2018]). While the standard for outrageous conduct is "strict," "rigorous," and "difficult to satisfy," "that is not the case when there is a deliberate and malicious campaign of harassment or intimidation" (Scollar v City of New York, 160 A.D.3d 140, 146 [1st Dept 2018] internal quotations omitted]).
Here, Plaintiffs Complaint alleges that Defendants, knowing that Plaintiff was emotionally vulnerable and with the intention to cause her severe emotional distress, "purposely drew upon Defendant Piliere's status as a mental health professional to terrorize Plaintiff and worsen her mental health," resulting in, inter alia, extreme humiliation and mental anguish (NSYCEF Doe. 2 at ¶¶ 83, 86). Affording Plaintiff the benefit of every possible favorable inference, the Court finds that Plaintiff has successfully stated a claim for intentional infliction of emotional distress. Accordingly, Defendants' motion to dismiss Plaintiffs Third Cause of Action is denied.
d. Defendants' Motion to Dismiss Plaintiffs Fourth Cause of Action for Defamation is Denied
It is well established that "[t]o prove a claim for defamation, a plaintiff must show: (1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm" (Stepanov v Dow Jones & Co., Inc., 120 A.D.3d 28, 34 [1st Dept 2014]).
Here, Plaintiffs Complaint a lieges that Defendants "knowingly and maliciously and/or recklessly published false information about Plaintiff's acting and film producing skills to colleagues in the film industry, without privilege or authorization,'" intending lo injure Plaintiff. and that ''Defendant Piliere published false information imputing unchastity to Plaintiff (NYSCEF Doc. 2 at ¶¶ 88-89). As statements imputing unchastity lo a woman constitute defamation per se,in light of the foregoing, the Court finds that Plaintiff has successfully stated a claim for Defamation. Accordingly, Defendants' motion to dismiss Plaintiffs Fourth Cause of Action for failure to state a claim is denied.
e. Defendants' Motion to Dismiss Plaintiffs fifth Cause of Action for Breach of Contract is Denied
To state a claim for breach of contract, "a plaintiff must allege: (1) the parties entered into a valid agreement. (2) plaintiff performed, (3) defendant failed to perform, and (4) damages” (VisionChina Media Inc. v Shareholder Representative Servs., LLC, 109 A.D.3d 49, 58 [1st Dept 2013]).
Plaintiffs Complaint alleges that Plaintiff had enforceable verbal and written contracts with Defendants under which Plaintiff performed, that Defendants breached the contracts by terminating Plaintiffs services, and that Defendants breach caused Plaintiff to suffer monetary damages (NYSCEF Doc. 2 at ¶¶ 93-94). In light of the foregoing, the Court finds that Plaintiff has successfully stated a claim for breach of contract. Accordingly, Defendants' motion to dismiss Plaintiff's fifth Cause of Action for failure to state a claim is denied.
f. Defendants" Motion lo Dismiss Plaintiffs Sixth Cause of Action for Tortious Interference with Business Relations is Denied
The First Department has held that "[t]o prevail on a claim for tortious interference with business relations in New York, a party must prove (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party (Amaranth LLC v J. P. Morgan Chase & Co., 71 A.D.3d 40, 47 [1st Dept 2009]).
Plaintiffs Complaint alleges that she had business relations with colleagues in the Him industry which were destroyed as a result of Defendants1 interference (NYSCEF Doc. 2 at ¶ 97). Further Plaintiffs Complaint alleges that Defendants interfered with Plaintiffs business relations with the sole purpose of causing harm to Plaintiff (Id.). In light of the foregoing, the Court finds that Plaintiff has successfully stated a claim for Tortious Interference with Business Relations, Accordingly, Defendants' motion to dismiss Plaintiffs Sixth Cause of Action for failure to state a claim is denied.
g. Plaintiffs Cross-Motion for an Order directing HHF to Appear in this Action by an Attorney is Granted
CPLR 321(a) states that "a corporation or voluntary association shall appear by an attorney." Further, the First Department has held that, pursuant to CPLR 321(a), a corporate defendant may be properly held in default for failure to appear by an attorney (World on Columbus. Inc. v L.C.K Restaurant Group, Inc., [1st Dept 1999]),
As it is undisputed that Defendant HHF is an LLC that has not appeared by an attorney, this matter shall be slaved for 30 days to afford HHF a reasonable time to obtain and appear by counsel, Failure of HHF to appear by counsel within 30 days will risk HHF being found in default.
Accordingly, it is hereby,
ORDFRKD that Defendants Dennis Piliere a/k/a Dennis Cabrini and High Hopes films, LLC's motion to dismiss Plaintiff Kathy Breiding's Complaint for failure to slate a claim, is denied in its entirety; and it is further
ORDERED that within 30 days of entry, Defendant High Hopes Films, LLC shall appear by counsel in this action. Failure of HHF to appear by counsel within 30 days will risk HHF being found in default; and it is further
ORDERED that on or before March 5, 2024 all parties are directed to submit a proposed Preliminary Conference Order to the Court via e-mail to SFC-Part33-Clerk@nycourts.gov. If the parties arc unable to agree to a proposed Preliminary Con Terence Order, the parties arc directed to appear for an in-person preliminary conference with the Court in Room 442, 60 Centre Street, on March 6, 2024 at 9:30 a.m.; and it is further
ORDERED that within ten (10) days of entry, counsel for Plaintiff shall serve a copy of this Decision and Order, with notice of entry, on Defendants; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.