Opinion
159852/2018
09-09-2019
Dara LITWIN, Plaintiff, v. HAMMOND HANLON CAMP, LLC, Michael Hammond, Gregory Hammond, Michael Hammond, William Hanlon, Philip Camp, Barbara Shattuck, Thomas Barry, Victoria Poindexter, C. Richard Bayman, Defendants.
Eric Baum, Esq., Attorney for Plaintiff Rebecca Brazzano, Esq., Keith Spiller, Esq., Attorneys for Defendant Hammond Hanlon Camp, LLP Steven M. Hayes, Esq., Attorneys for Defendants Michael Hammond, Jr and Gregory Hammond
Eric Baum, Esq., Attorney for Plaintiff
Rebecca Brazzano, Esq., Keith Spiller, Esq., Attorneys for Defendant Hammond Hanlon Camp, LLP
Steven M. Hayes, Esq., Attorneys for Defendants Michael Hammond, Jr and Gregory Hammond
Francis A. Kahn III, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 36 were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 37 were read on this motion to/for DISMISS
Upon the foregoing documents, the Defendants Hammond Hanlon Camp, LLC, as well as Gregory Hammond and Michael Hammond, Jr. separately, move pursuant to CPLR 3211[a][7] to dismiss Plaintiff's first cause of action for failure to state a claim.
According to the complaint, Plaintiff was an employee of Defendant Hammond Hanlon Camp, LLC ("HHC") from October 2014 through April 2018. Defendant Gregory Hammond ("Gregory") is an officer of HHC and the brother of Defendant Michael Hammond, Jr. ("Michael") who was not employed by HHC. After the culmination of her employment at HHC, Plaintiff and Michael initiated a romantic relationship. During their association, Plaintiff forwarded intimate photographs of herself with fully bare breasts and partially exposed buttocks. It is alleged Plaintiff was identifiable solely from the photographs. Plaintiff claims she instructed Michael the pictures were for him alone.
After the relationship terminated, Plaintiff avers Michael sent the photographs to Gregory without her consent. Subsequently, Gregory allegedly widely distributed the photos to other HHC employees "via a known channel of HHC communications" described as "a long standing HHC group chat used to disseminate information related to HHC business and utilizing HHC resources". Plaintiff avers that in addition to Gregory, seven other employees of HHC participated in distribution of the photos and made comments about them.
As against Defendants Michael, Gregory and HHC, Plaintiff's first cause of action pleads a claim under New York City Administrative Code § 10-177[d], titled Unlawful Disclosure of an Intimate Image. This section was, effective March 1, 2019, re-codified as NYC Administrative Code § 10-180[b][1]. Also pled is a second cause of action for unpaid wages which in not a subject of these motions to dismiss.
Section renumbered (formerly § 10-177 ) L.L. 192/2018 § 2, eff. Mar. 1, 2019.
Administrative Code § 10-180[b][1] creates both criminal and civil remedies for a victim of what is colloquially referred to as "revenge porn". As is relevant here, it provides as follows:
It is unlawful for a covered recipient to disclose an intimate image, without the depicted individual's consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual, where such depicted individual is or would be identifiable to another individual either from the intimate image or from the circumstances under which such image is disclosed [emphasis added].
A "covered recipient" is defined as "an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image" (Administrative Code of City of NY 10-180[a] ). The parties do not dispute that the Plaintiff and images at issue fall within definition of "depicted individual" in AC § 10-180[a].
In support of its motion, HHC argues, among other things, it cannot be liable since it is not a "covered recipient" as defined by the code. In particular, HHC claims as a limited liability company it is not an "individual" and that it never received the intimate images "from" the Plaintiff. Similarly, Gregory premises his motion to dismiss on the assertion that he is not a "covered recipient" under the code. HHC also posits that any potential claim of respondeat superior for the actions of Gregory fails.
In construing a legislative edict, when presented with clear and uncontradictory language, the legislative intent is presumed to be expressed in those words and the court is compelled to apply the law in accordance with the letter of the statute (see A.J. Temple Marble & Tile v. Union Carbide Marble Care , 87 NY2d 574, 580 [1996] ; Triborough Bridge & Tunnel Authority v B. Crystal & Son , 2 AD2d 37, 39 [1st Dept 1956] ). Departure from the literal wording of a legislative enactment is permitted when adhering to the language would defeat the intent of the legislative body (see New York Post Corp. v Leibowitz, 2 NY2d 677, 685 [1957] ).
Plaintiff has not alleged in the complaint that either HHC or Gregory received "intimate images" of Plaintiff directly, but rather she claims these images were transmitted to Michael who forwarded them on. Section 10-180[a] of the Administrative Code of City of NY is silent as to whether a "covered person" must receive "intimate images" directly or indirectly from the "depicted individual". However, the legislative history of this law expressly indicates that the prohibition covers "intimate images" received "directly" from the depicted person and that "the prohibition does not cover an individual who received or accesses an intimate image indirectly" (see New York City Council, Committee on Public Safety, Report of the Governmental Affairs Division on Proposed Int. No. 1267-A, November 1, 2017 at 10 ["Committee Report"] ). In further explanation, the Committee Report notes as an example that "the prohibition would not cover an individual who was sent an intimate image from a friend who received that image from the depicted individual" (id. ). Plaintiff's argument that Gregory's forwarding of the images to other Defendants and his awareness of the source of the images transforms him into a "covered recipient" is contradicted by the legislative history. In the Committee Report it is noted that a prior version of the section which prohibited "any person" from distributing images was purposefully scrapped as "too broad" and could render any recipient of a "viral" image liable (id. at 19). Moreover, nothing in the language of AC § 10-180 or the legislative history indicates the existence of or an intent on the part of the New York City Counsel to create an exception to the limited scope of a "covered recipient" where an indirect recipient has knowledge of the source of the image.
As of the date of this decision, the court could find no reported civil case interpreting Administrative Code of City of NY § 10-180. There are, however, two criminal cases in which the legislative history of this section was explored (see People v. Mowring , Misc 3d, 2019 NY Slip Op. 29209 [Crim Ct Richmond Cty 2019] ; People v. Ahmed , Misc 3d, NY Slip Op. 29170 [Crim Ct Bronx Cty 2019]). In both cases, the requirement that an "intimate image" be received directly from the "depicted individual" was noted as a requirement to find an offender was a "covered individual" under AC § 10-180.
In the end, assuming the allegations in the complaint as against HHC and Gregory to be true, as is required on this motion, Plaintiff pleads extraordinarily reprehensible and callous conduct by Gregory through his alleged redistribution of these sensitive images. Further, and perhaps just as shameful, are the supposed actions of HHC through its employees in further facilitating the distribution of these images exacerbating devastating harm to not some stranger, but a former employee and co-worker. Nevertheless, as presently constructed, section 10-180[b][1] of the Administrative Code does not afford Plaintiff a remedy against these parties and "[f]or the correction of alleged deficiencies in the statutory scheme, Plaintiff's ‘appeal lies to the ballot and to the legislative processes of democratic government, not to the courts’ " ( Treyball v. Clark , 65 NY2d 589, 591 [1985], quoting Maresce v. Cuomo , 64 NY2d 242, 249 [1984] ).
Accordingly, since it is not alleged in the complaint that either HHC or Gregory received images directly from Plaintiff, neither are "covered individuals" and Plaintiff's first cause of action against these Defendants fails as a matter of law.
To the extent Plaintiff may be claiming HHC is vicariously liable under the doctrine of respondeat superior , in addition to not being expressly pled in the complaint, that claim fails as a matter of law. Since Gregory is not a "covered person" and, therefore, not civilly liable to Plaintiff under section 10-180 of the Administrative Code of City of NY, there is no conduct by Gregory for HHC to be vicariously responsible (see generally PJI 2:235 ).
The branch of the motion for the imposition of sanctions against Plaintiff under 22 NYCRR 130-1.1 is denied. Given the lack of judicial gloss on the Administrative Code section at issue, the court cannot reasonably find Plaintiff's complaint and allegations therein are "completely without merit in law and cannot be supported by a reasonable argument for an extension...of existing law" ( 22 NYCRR 130-1.1 [c][1] ).
Contrary to Michael's argument, Plaintiff's complaint states facts and allegations to support her claim that Michael acted with intent to cause substantial emotion harm to the Plaintiff for pleading purposes (see generally Chanko v. American Broadcasting Cos. Inc. , 27 NY3d 46 [2016] ). Not only must the facts and allegations contained in the complaint be presumed true (see 219 Broadway Corp. v. Alexander's, Inc. , 46 NY2d 506 [1979] ; Foley v. D'Agostino , 21 AD2d 60 [1st Dept 1964] ), but "whatever may be implied from its statements by reasonable intention" is required to be accepted ( Natixis Real Estate Capital Trust 2007-HE2 v. Natixis Real Estate Holdings, LLC , 149 AD3d 127 [1st Dept 2017] ). Indeed, all manner of ostensibly unsupported allegations have been assumed to be true when the Court of Appeals has evaluated challenged pleadings (see Howard v. Lecher, 42 NY2d 109 [1977] ; Becker v. Schwartz, 46 NY2d 401 [1978] ; see also Howard Stores Corp. v. Pope , 1 NY2d 110 [1956] ).
Michael's reference to a purported lack of "particularity" in Plaintiff's allegations of intent is of no moment. Neither section 10-180 of the Administrative Code of City of NY nor the Civil Practice Law and Rules require particularity in pleading to support this claim (see CPLR § 3015, 3016 ). Therefore, pleaded facts which simply give "notice" of the claims asserted are sufficient (see CPLR § 3013 ; Foley v. D'Agostino , 21 AD2d 60, 63 [1st Dept 1964] ).
In the context of civil claims, intent means an act is done with the purpose of accomplishing a result or with knowledge that to a "substantial certainty" such a result will ensue (see Acevedo v. Consolidated Edison Co., 189 AD2d 497, 501 [1st Dept 1993] ; McGroarty v. Great American Ins. Co., 43 AD2d 368 [2d Dept 1974] ). Here, given the sensitive nature of the images, that they were obtained by Michael while he was in a relationship with Plaintiff, that he is alleged to have distributed them after the relationship ended to his brother, Gregory, and that the images ultimately were seen by Plaintiff's former co-workers, malicious motive can, for pleading purposes, be found both circumstantially and by implication (cf. Pezhman v. City of New York , 29 AD3d 164, 168 [1st Dept 2006] ; Herlihy v. Metropolitan Museum of Art , 214 AD2d 250, 260-261 ; see also LaBarge v. Holmes , 30 AD3d 1087 [4th Dept 2006] ).
"Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [her] claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2d Dept 2006] ).
Plaintiff's cross-motion to amend is granted only to the extent that Plaintiff may amend her second cause of action alleging unpaid wages by adding the Defendant H2C Securities, Inc. and the requisite factual allegations to support that claim only (see generally CPLR § 3025[b] ).
Accordingly, based on the foregoing, it is
ORDERED that the branches of Defendants' motions pursuant to CPLR § 3211[a][7] are granted only to the extent that Plaintiff's first causes of action is dismissed as against Hammond Hanlon Camp, LLC, as well as Gregory Hammond and it is
ORDERED that the branch of Defendant Hammond Hanlon Camp, LLC's motion for the imposition of sanctions is denied and it is
ORDERED that the cross-motion is granted to only to the extent that Plaintiff may, within 30 days of e-filing of this decision, file and serve an amended complaint adding H2C Securities, Inc. as a defendant in the second cause of action for unpaid wages and it is
ORDERED that Defendants shall, to the extent they have not already done so, serve answers within the time accorded in CPLR 3211[f] and the parties are directed to appear for a preliminary conference on October 1, 2019 at 9:30 a.m. , at 111 Center Street, IAS Part 14, courtroom 1045.