This test requires that a nonresident plaintiff must "plead and prove that the alleged discriminatory conduct had an impact in [New York]." Hoffman , 15 N.Y.3d at 289–91, 907 N.Y.S.2d 145, 933 N.E.2d 744 ; see also,Pakniat v. Moor , 192 A.D.3d 596, 145 N.Y.S.3d 30, 31 (2021) ("To avail herself of these statutes, plaintiff must still satisfy the jurisdictional requirement that the impact of the discrimination was felt in New York City and State.").
(emphasis added)).See alsoPakniat v. Moor , 192 A.D.3d 596, 145 N.Y.S.3d 30, 30–31 (1st Dep't 2021) (like Hoffman , emphasizing that NYSHRL is "intended to protect the residents of this State or nonresidents who work in this State," but also concluding that the plaintiff could not make out her NYCHRL or NYSHRL claims "because plaintiff was living and working in Montreal, Canada at the time of the alleged discriminatory conduct and she failed to allege that the conduct had any impact in either New York State or New York City" (emphasis added)). Other decisions by New York courts are equally ambiguous on this issue.
See, e. g., Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 182-83 (2d Cir. 2016) (dismissing a NYCHRL claim where the patients with whom the plaintiff communicated were based in New York City, but the plaintiff worked in, was supervised, and was terminated in Yonkers); Fried v. LVI Servs., Inc., 500 Fed.Appx. 39, 42 (2d Cir. 2012) (affirming dismissal of a NYCHRL claim where the plaintiff lived and worked in Connecticut but attended meetings and communicated frequently with colleagues in New York City); Pakniat v. Moor, 192 A.D.3d 596, 596-97 (2021) (dismissing the NYSHRL and NYCHRL claims where the plaintiff lived and worked in Montreal throughout her entire employment).
To state a claim under NYCHRL, a non-resident plaintiff, like Frisch, must allege that the “discriminatory conduct had an impact in New York.” Hoffman v. Parade Publ'ns, 15 N.Y.3d 285, 289-91 (2010); see also Pakniat v. Moor, 145 N.Y.S.3d 30, 31 (2021) (“To avail herself of [the NYCHRL], plaintiff must still satisfy the jurisdictional requirement that the impact of the discrimination was felt in New York City.”)
This requirement applies even to employees working remotely, out-of-state for a New York employer; the fact that an allegedly unlawful decision terminating a plaintiff's employment occurred in New York is insufficient to plead impact in New York. See Pakniat v. Moor, 145 N.Y.S.3d 30, 31 (N.Y.App.Div. 2021).
In Pakniat v. Moor, the Appellate Division, First Department considered the NYCHRL and NYSHRL impact requirement in light of Covid-19. See Pakniat v. Moor, 145 N.Y.S.3d 30, 31 (N.Y.App.Div. 2021). Pakniat, a Montreal resident, sued her employer under the NYSHRL and the NYCHRL for sexual harassment and retaliation.
Defendants' alleged conduct occurred while plaintiff was "physically situated outside of New York" (Benham v eCommission Solutions, LLC, 118 A.D.3d 605, 606 [1st Dept 2014]), and did not have "any impact on the terms, conditions or extent of her employment... within the boundaries of New York" (Hardwick v Auriemma, 116 A.D.3d 465, 467 [1st Dept 2014], lv denied 23 N.Y.3d 908 [2014]; see Wolf v Imus, 170 A.D.3d 563, 564 [1st Dept 2019], lv denied 34 N.Y.3d 907 [2019]; Shah v Wilco Sys., Inc., 27 A.D.3d 169, 176 [1st Dept 2005], lv dismissed in part, denied in part 7 N.Y.3d 859 [2006]; see also Vangas v Montefiore Med. Ctr., 823 F.3d 174, 182-183 [2d Cir 2016] [impact on third parties is irrelevant]). "The fact that the alleged discriminatory acts... occurred in New York is insufficient to plead impact in New York" (Pakniat v Moor, 192 A.D.3d 596, 597 [1st Dept 2021]). The one-year statute of limitations bars plaintiff's claim for intentional infliction of emotional distress; she commenced this action approximately 16 months after "the date of the commission of the last wrongful act" (Palmeri v Willkie Farr & Gallagher LLP, 156 A.D.3d 564, 568 [1st Dept 2017]; see Dana v Oak Park Marina, Inc., 230 A.D.2d 204, 210-211 [4th Dept 1997] [limitations period tolled for "continued series of extreme and outrageous acts each of which would be independently actionable"]; see CPLR 215[3]).
Defendants’ alleged conduct occurred while plaintiff was "physically situated outside of New York" ( Benham v. eCommission Solutions, LLC, 118 A.D.3d 605, 606, 989 N.Y.S.2d 20 [1st Dept. 2014] ), and did not have "any impact on the terms, conditions or extent of her employment ... within the boundaries of New York" ( Hardwick v. Auriemma, 116 A.D.3d 465, 467, 983 N.Y.S.2d 509 [1st Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936031 [2014] ; seeWolf v. Imus, 170 A.D.3d 563, 564, 96 N.Y.S.3d 54 [1st Dept. 2019], lv denied 34 N.Y.3d 907, 2019 WL 6910072 [2019] ; Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 176, 806 N.Y.S.2d 553 [1st Dept. 2005], lv dismissed in part, denied in part 7 N.Y.3d 859, 824 N.Y.S.2d 597, 857 N.E.2d 1129 [2006] ; see alsoVangas v. Montefiore Med. Ctr., 823 F.3d 174, 182–183 [2d Cir. 2016] [impact on third parties is irrelevant]). "The fact that the alleged discriminatory acts ... occurred in New York is insufficient to plead impact in New York" ( Pakniat v. Moor, 192 A.D.3d 596, 597, 145 N.Y.S.3d 30 [1st Dept. 2021] ). The one-year statute of limitations bars plaintiff's claim for intentional infliction of emotional distress; she commenced this action approximately 16 months after "the date of the commission of the last wrongful act" ( Palmeri v. Willkie Farr & Gallagher LLP, 156 A.D.3d 564, 568, 69 N.Y.S.3d 267 [1st Dept. 2017] ; seeDana v. Oak Park Marina, Inc., 230 A.D.2d 204, 210–211, 660 N.Y.S.2d 906 [4th Dept. 1997] [limitations period tolled for "continued series of extreme and outrageous acts each of which would be independently actionable"]; see CPLR 215[3] ).
The First Department has likewise recognized the societal impact of discrimination, remarking that "State and City Human Rights Laws are meant to deter discriminatory behavior by New York employers, as well as to compensate the employees impacted by that behavior" (Pakniat v Moor, 192 A.D.3d 596, 597 [1st Dept 2021]). The Pakniat Court recognized the need for a more flexible "impact" test given the expanded "diaspora of remote workers, many of them laboring in other states for New York firms" (Id.).
The First Department has likewise recognized the societal impact of discrimination, remarking that "State and City Human Rights Laws are meant to deter discriminatory behavior by New York employers, as well as to compensate the employees impacted by that behavior" (Pakniat v Moor, 192 A.D.3d 596, 597 [1st Dept 2021]). The Pakniat Court recognized the need for a more flexible "impact" test given the expanded "diaspora of remote workers, many of them laboring in other states for New York firms" (Id.).