SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
KALISHA CRAWFORD Plaintiff, - v -
DAVID RATNER, Defendant.
INDEX NO. 952052/2023
MOTION DATE 12/13/2023
MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14 were read on this motion to/for DISMISS
This action arises out of a series of alleged sexual assaults, sexual harassment and retaliatory conduct between 2010 and 2011 by the defendant. Plaintiff Kalisha Crawford (“plaintiff”) alleges that during the course of her employment at the law firm of Morelli Ratner P.C., she was sexually assaulted by the defendant David Ratner (“defendant”), a named partner of the firm. On June 6, 2023, plaintiff filed a Summons and Complaint, asserting claims under New York’s Adult Survivors Act, the NYC Gender Motivated Violence Act, the New York State Human Rights Law and New York City Human Rights Law. Defendant now moves to dismiss.
Background
In 2009, plaintiff, an attorney, started as an associate at Morelli Ratner P.C., a New York City based personal injury law firm. In her complaint, plaintiff alleges that shortly after she began working at the firm, she learned of the defendant’s “abusive and predatory reputation” with the firm’s female employees. Plaintiff claims that she personally witnessed defendant regularly make inappropriate comments about the bodies of female employees and once
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overheard the defendant while he was allegedly on a phone call with a former female employee, threatening to “ruin her” if she proceeded with sexual harassment allegations against him.
Plaintiff alleges that on December 16, 2010, while leaving the firm’s holiday party, the defendant forcibly kissed her. Plaintiff further alleges that later that night while in her apartment, defendant grabbed her, kissed her, and put her hand on his genitals and inside of his pants.
Plaintiff alleges she and the defendant then had a “brief physical struggle” before defendant left plaintiffs apartment. Plaintiff alleges that in the days that followed she suffered panic attacks, back pain, and stress induced gastrointestinal issues as a result of the assault.
Plaintiff claims that later on March 30, 2011, while on a business trip to Massachusetts, while plaintiff and defendant were in defendant’s car, the defendant “grabbed Crawford’s hand and slid his other hand all the way up her thigh, telling her that they should have an affair.”
Plaintiff contends that when she declined, defendant threatened her career. Plaintiff alleges that as a result of her denial of defendant’s sexual advances, plaintiff was fired under the pretext that her work was inadequate.
As these acts allegedly occurred in 2010 and 2011, they would generally be barred by New York’s statute of limitations. However, in May 2022, the New York State Legislature passed the Adult Survivors Act (ASA), which retroactively extended the statute of limitations for alleged victims of sexual assaults to file previously time barred civil suits, so long as the suit was filed before November 24, 2023.
Standard of Review
When considering a motion to dismiss based upon CPLR § 3211(a)(7), the court must accept the alleged facts as true, accord the plaintiff the benefit of every possible favorable inference, and determine whether the facts alleged fit into any cognizable legal theory. Leon v.
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Martinez, 84 NY2d 83 [1994]. On a motion to dismiss the court “merely examines the adequacy of the pleadings”, the court “accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim.” Davis v Boeheim, 24 NY3d 262, 268 Discussion
I. Forum non conveniens
Defendant first moves to dismiss plaintiff’s action in its entirety on the principle of forum non conveniens. CPLR 327(a) provides in part, “when the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.”
Codified in CPLR 327, the doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum.” National Bank & Trust Co. v. Banco de Vizcaya, S. A., 72 N.Y.2d 1005 [1988]. The doctrine is flexible, requiring the balancing of many factors in light of the facts and circumstances of the particular case. Id.
The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474 [1984]. Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. Id.
Defendant argues the matter should not be adjudicated in New York as both plaintiff and defendant currently reside in California, and plaintiff’s treating physicians are in California.
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Plaintiff opposes, arguing that despite her residence in California, the matter should be litigated in New York where the alleged conduct took place. Plaintiff asserts that not only would she prefer to litigate the case in New York, but New York is a more convenient forum as many of the potential witnesses to the action are in New York, the events took place in New York, one of the locations a site that still stands.
Here the Court finds that dismissal based on forum non conviens is unwarranted. At the time the claims allegedly arose, both plaintiff and defendant were New York residents. The alleged conduct occurred in New York, plaintiff saw medical providers around the time of the alleged conduct in New York, and plaintiff has chosen New York as the forum for which to litigate her case. Here the only connection to California is that both of the current parties reside there. Although there is a possibility the parties would need to come from California to New York for the purposes of litigation, though due to the current digital age, this might only be for trial, this reason alone does not warrant dismissal.
Moreover, New York Courts have a strong interest in litigating claims brought under the ASA. The New York State Legislature specifically enacted the ASA to remedy the harm of New York’s previous statute of limitations and provide alleged victims of sexual assault the opportunity to have their day in Court As such, Defendant’s motion to dismiss pursuant to CPLR 327 is denied.
II. New York City Gender Motivated Violence Act (GMVA)
Defendant asserts plaintiff’s first cause of action under the New York City
Gender Motivated Violence Act (GMVA) must be dismissed with regards to the incidents that allegedly occurred in Massachusetts, on the grounds that the GMVA only applies to acts that occurred within the City of New York. The Court agrees. New York Courts have repeatedly held
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III. New York State Human Rights Law (NYSHRL)
Next, defendant asserts plaintiff’s second and third causes of action under the New York State Human Rights Law (NYSHRL) require dismissal on the basis that the defendant was not plaintiff’s employer. In opposition, plaintiff argues the defendant was plaintiff’s employer within the meaning of the NYSHRL, as evidenced by his role as the managing and named partner of the firm, his power to hire and fire employees and his alleged role in orchestrating plaintiff’s termination.
NYSHRL Section 1(a) provides,
1. It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
The NYSHL does not define the term “employer.” Thus, in Doe v. Bloomberg the Court of Appeals clarified who plaintiffs could hold liable as their employers under the NYSHRL finding,
“the language in the City HRL, like that found in the State HRL, is itself circumscribed and requires no external limiting principle exempting employees from individual suit as employers. Instead, where a plaintiff's employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL. Rather, those individuals may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct. This rule aligns with the structure of the City HRL and comports with the Court's interpretation of similar language in Patrowich. It is also
Page 5 of 10 that claims arising from the New York City Administrative Code are only viable for conduct that occurred within New York City. See Wilkinson v Community Preserv. Corp., 74 A.D.3d 405 [2010];
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consistent with the principles of vicarious and limited liability governing certain business structures.” Doe v. Bloomberg L.P., 36 N.Y.3d 450 [2021]
Pursuant to the Court of Appeals analysis, “employer” under Section 1(a) of the NYSHRL does not include individuals where an employee is employed by a corporate entity. Id. Although an individual may have an ownership stake in the company and actively participate in the hiring of firing of employes, these circumstances do not make them an “employer” for the purposes of the NYSHRL. In fact, the Court of Appeals specifically rejected an analysis of the role of an individual in determining whether they qualify as an employer, “According to the dissent an individual qualifies as an employer under the City HRL when shown to have either (1) an ownership interest in the organization or (2) the power to do more than carry out personnel decisions made by others. This is a misreading of Patrowich…The dissent below, the dissent here, and a number of other courts misinterpret Patrowich as making the "ownership/personnel decisions" test relevant to defining "employer" in each of the state and federal statutes at issue, including the State HRL.” Id. at 458.
Therefore, the Court finds that regardless of the defendant’s status at the firm or involvement with hiring and firing, he is still not an employer within the meaning of the NYSHRL. Here, plaintiff’s employer under the NYSHRL would be the law firm which legally hired her, Morelli Ratner P.C. As such, plaintiff’s third cause of action is dismissed.
IV. New York City Human Rights Law (NYCHRL)
Finally, defendant argues plaintiffs’ fourth and fifth causes of action under the New York City Human Rights Law (NYCHRL) must be dismissed because the Adult Survivors Act (ASA) does not revive nor preempt the City Administrative Code. Defendant argues the ASA only applies to acts specifically listed in Section 130 of the Penal Law. In response, plaintiff argues
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the ASA revives every civil claim which arises from conduct criminalized in Section 130 of the Penal Law, rather than just the civil tort counterparts of Section 130 conduct.
In relevant part the ASA provides,
“§ 214-j. Certain sexual offense actions. Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older, or incest as defined in section 255.26 or 255.27 of the penal law committed against such person who was eighteen years of age or older, which is barred as of the effective date of this section because the 5 applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section. In any such claim or action, dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section.” CPLR § 214-j (emphasis added)
Defendant contends that as the ASA is a revival statute, it is “an extreme example of legislative power and therefore it must also be narrowly construed.” S.H. v. Diocese of Brooklyn,
205 A.D.3d 180, 188 [2nd Dept. 2022]. However, even when narrowly construing a statute, the Court must still apply the plain language of the text where it is unambiguous. It is well established "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Town of Aurora v Village of E. Aurora, 32 N.Y.3d 366. Therefore, if the plain text explicitly broadens the statues applicability, then the Court shall read it as such.
Here, the ASA explicitly provides that is applies to “every single civil cause of action.”
While defendant asserts this only applies to tort actions arising out of acts specifically listed in
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Penal Law Section 130, this is contravened by the plain language of the statute as well as legislative intent. In addition to the language “every single civil cause of action” clause, the statute further provides “acts or omissions” arising out of Section 130. Therefore, as there are no “omissions” explicitly criminalized in Section 130 of the penal law, it cannot possibly be the case that only the acts in 130 are subject to revival under the ASA.
Additionally, defendant argues plaintiff’s claim under the NYCHRL must be dismissed on the basis that a state statute such as the ASA, cannot preempt a specific time bar in a City Administrative Code, such as the three-year time limitation in New York City Human Rights Law. Defendant asserts “when a statute itself contains a time period for commencement of an action, that is usually a condition precedent to assertion of the right.” Defendant contends thus contends plaintiffs claims under the NYCHRL thus remain time barred, regardless of the ASA.
The Court finds defendant’s argument unavailing. As copied above, the ASA reads, “Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim… is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section.” Again, the language “notwithstanding any provision of law” explicitly casts a wide net.
Moreover, the court agrees with plaintiff that it is not a matter of preemption, but revival. The issue here is not whether a state law can preempt a specific statute of limitations but rather, whether this one-year revival statute can also revive city law claims as well as state law claims. This is consistent with the Legislature’s intent. A primary command to the judiciary in the
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interpretation of statutes is to ascertain and effectuate the purpose of the Legislature. Rankin ex rel. Board of Educ. v. Shanker, 23 N.Y.2d 111. In finding such purpose, one should look to the entire statute, its legislative history and the statutes of which it is made a part. Id. In this respect, legislative history and the events associated with and occasioning the passage of the particular statute are valuable guiding lights. Fumarelli v. Marsam Dev., Inc. 92 N.Y.2d 298 [1988]. Here, the Legislature’s intent is clear, “This legislation, the Adult Survivors Act, would create a oneyear window for the revival of otherwise time-barred civil claims arising out of sexual offenses committed against people who were 18 or older at the time of the conduct. Those who have had justice denied them as a result of New York's formerly insufficient statutes of limitations should be given the opportunity to seek civil redress against their abuser or their abuser's enablers in a court of law.” (2021 N.Y.S.B. 66 (NS), New York Committee Report, December 31, 2020)
Furthermore, this is consistent with New York Courts’ application of a similar revival statute, the Child Victims Act (CVA). Like the ASA, the CVA created a one-year window for the revival of otherwise time barred civil claims stemming from child sexual abuse, has been interpreted by New York Courts to revive City claims as well as state claims. See Doe v. Gonzalez, 2023 U.S. Dist. LEXIS 136141 [2023]; Doe v. N.Y.C. Dep't of Educ., 2023 U.S. Dist. LEXIS 46513 [2023].
Therefore, the Court finds that absent any indication the legislature intended to only revive state law claims, the ASA also revives City claims. Thus, solely by applying the plain meaning of the text, it is clear the statute applies to all City and State laws for which plaintiff can assert a civil claim deriving out of conduct in Section 130 of the Penal Law.
Accordingly, it is hereby,
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ORDERED that defendant’s motion to dismiss is granted in part as to defendant’s first cause of action as it pertains to the alleged Massachusetts conduct and plaintiff’s second and third causes of action are dismissed in their entirety; and it is further
ADJUDGED that the motion is otherwise denied
12/20/2023 DATE
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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