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Lively v. Wafra Inv. Advisory Grp.

Supreme Court of New York, First Department
Dec 6, 2022
211 A.D.3d 432 (N.Y. App. Div. 2022)

Opinion

16808 Index No. 154121/21 Case No. 2022–02141

12-06-2022

Francis P. LIVELY, Plaintiff–Appellant, v. WAFRA INVESTMENT ADVISORY GROUP, INC., et al., Defendants–Respondents.

Brewer, Attorneys & Counselors, New York (Christopher T. Zona of counsel), for appellant. Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York (Brette Tannenbaum of counsel), for respondents.


Brewer, Attorneys & Counselors, New York (Christopher T. Zona of counsel), for appellant.

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York (Brette Tannenbaum of counsel), for respondents.

Renwick, J.P., Manzanet–Daniels, Gesmer, Kennedy, Shulman, JJ.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about January 21, 2022, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff was employed by defendant Wafra Investment Advisory Group Inc. for 21 years. At the time his employment was terminated, he was Wafra's senior managing director of real estate, a role he assumed in 2017. Wafra's CEO at the time was defendant Fawaz Al–Mubaraki. Plaintiff was terminated by Wafra in May 2018, ostensibly due to complaints of sexual harassment made against him by one of his subordinates. After filing suit in federal court based on federal claims of discrimination under the Age Discrimination in Employment Act (ADEA), plaintiff commenced this action in Supreme Court.

As an initial matter, we note that the Second Circuit's decision in Lively v. WAFRA Inv. Advisory Group, Inc. , 6 F.4th 293 (2d Cir.2021) affirming the dismissal of plaintiff's federal complaint does not preclude, based on principles of collateral estoppel, plaintiff's New York State Human Rights Law (State HRL) and City Human Rights Law (City HRL) discrimination and retaliation claims. Neither New York statute has been interpreted to require that the complaint allege "but-for" causation at the pleading stage, which was the finding that served as the primary basis for the Second Circuit's decision (see Petit v. Department of Educ. of the City of N.Y., 177 A.D.3d 402, 403, 113 N.Y.S.3d 30 [1st Dept. 2019] ; cf. Wiltz v. City of New York, 191 A.D.3d 452, 141 N.Y.S.3d 49 [1st Dept. 2021], appeal dismissed 37 N.Y.3d 1038, 154 N.Y.S.3d 46, 175 N.E.3d 928 [2021] [finding HRL claims barred by collateral estoppel because the claims raised the same issues decided in the prior federal action]). In any event, even under the lenient notice pleading standard afforded to employment discrimination claims under state law, the complaint fails to sufficiently allege age discrimination under State HRL ( Executive Law § 296 ) or City HRL (Administrative Code of City of N.Y. §§ 8–101, 8–107) (see e.g. Harrington v. City of New York, 157 A.D.3d 582, 584, 70 N.Y.S.3d 177 [1st Dept. 2018] ). The complaint alleges that defendant Al–Mubaraki made negative comments about plaintiff's age on a few occasions in the summer of 2017 and November 2017, but it fails to plead a causal connection between these remarks and his termination several months later (see Brown v. City of New York, 188 A.D.3d 518, 519, 135 N.Y.S.3d 103 [1st Dept. 2020] ). Moreover, during that time, plaintiff was allegedly promoted to a senior managing director position and was commended for his exceptional work by Al–Mubaraki during his 2017 and 2018 annual formal evaluations. Plaintiff also alleges that another Wafra employee had complained that he had sent the employee "written messages of a personal romantic nature," and that he was terminated shortly after being notified of this complaint.

In addition, plaintiff failed to allege facts showing that the named comparators were terminated under similar circumstances or that younger employees were treated more favorably (see Thomas v. Mintz, 182 A.D.3d 490, 490, 122 N.Y.S.3d 21 [1st Dept. 2020] ; Pappas v. Moody's Inv. Serv., 202 A.D.3d 630, 630, 159 N.Y.S.3d 848 [1st Dept. 2022] ). Indeed, plaintiff does not allege that any of the terminated "older" employees were replaced by younger workers. In light of the inadequate and inconsistent allegations in the complaint, and the lapse in time between Al–Mubaraki's comment and plaintiff's termination, the assertion that his termination was based on age discrimination is conclusory, and the claims under the State and City HRLs were properly dismissed (see Brown, 188 A.D.3d 518, 135 N.Y.S.3d 103 ; Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013] ).

As for plaintiff's retaliation claims, he fails to allege a causal connection between his complaint about Al–Mubaraki's age-related comments in November 2017 and his termination nearly six months later, in May 2018, absent other facts (see e.g. Bantamoi v. St. Barnabas Hosp., 146 A.D.3d 420, 420, 44 N.Y.S.3d 398 [1st Dept. 2017] ; Matter of Parris v. New York City Dept. of Educ., 111 A.D.3d 528, 529, 975 N.Y.S.2d 42 [1st Dept. 2013], lv denied 23 N.Y.3d 903, 2014 WL 1887333 [2014] ).

Plaintiff's tortious interference with prospective business relations claim fails because the complaint lacks any nonconclusory allegations that his termination was made with malicious intent to interfere with his prospective business and contractual relations (see e.g. Pappas, 202 A.D.3d at 631, 159 N.Y.S.3d 848 ; Devash LLC v. German Am. Capital Corp., 104 A.D.3d 71, 79, 959 N.Y.S.2d 10 [1st Dept. 2013], lv denied 21 N.Y.3d 863, 2013 WL 4561705 [2013] ). Moreover, he has not alleged that defendants engaged in wrongful conduct directed at the prospective third parties (see Devash, 104 A.D.3d at 79, 959 N.Y.S.2d 10 ). His defamation claim also fails because the complaint does not plead with any particularity what false statements defendants had made about him and to whom (see Flowers v. Stillrock Mgt., Inc., 179 A.D.2d 361, 362, 578 N.Y.S.2d 546 [1st Dept. 1992] ). In any event, to the extent defendants’ statements are based on the Equal Employment Opportunity Commission complaint filed by the employee who complained of plaintiff's behavior, the statements are protected under Civil Rights Law § 74 (see e.g. Lacher v. Engel, 33 A.D.3d 10, 817 N.Y.S.2d 37 [1st Dept. 2006] ; see also Bernstein v. Seeman, 593 F.Supp.2d 630, 636 [S.D. N.Y.2009] ).

Plaintiff's negligence claim was properly dismissed, as an injured employee's exclusive remedy for injury caused by gross negligence or reckless conduct is provided by the Workers’ Compensation Law (see Martinez v. Canteen Vending Servs. Roux Fine Dining Chartwheel, 18 A.D.3d 274, 795 N.Y.S.2d 16 [1st Dept. 2005] ).

Plaintiff has failed to state a cause of action for unjust enrichment or quantum meruit because the complaint lacks facts showing that defendants were enriched at his expense (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009] ).


Summaries of

Lively v. Wafra Inv. Advisory Grp.

Supreme Court of New York, First Department
Dec 6, 2022
211 A.D.3d 432 (N.Y. App. Div. 2022)
Case details for

Lively v. Wafra Inv. Advisory Grp.

Case Details

Full title:Francis P. Lively, Plaintiff-Appellant, v. Wafra Investment Advisory…

Court:Supreme Court of New York, First Department

Date published: Dec 6, 2022

Citations

211 A.D.3d 432 (N.Y. App. Div. 2022)
180 N.Y.S.3d 92
2022 N.Y. Slip Op. 6887

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