H. M. Perez, Plaintiff, v. LLC (2025)

I. Recitation of the papers considered in the review of this Motion as required by CPLR 2219(a)

Upon reviewing Defendant's Motion to dismiss Plaintiff's Formal Complaint ("Motion #1"), Plaintiff's opposition ("Opposition") and Defendant's reply ("Reply"), Motion #1 is decided as follows.

II. Background

On October 2, 2023, Plaintiff commenced the instant action against Defendant by filing a summons and complaint ("Complaint") seeking money damages in the amount of $25,000 with interest, for defamation, workplace harassment and discrimination. Plaintiff was a former employee of Defendant, a Manhattan restaurant doing business as "Little Prince" ("Restaurant"). Plaintiff thereafter served Defendant with a copy of the pleadings on October 4, 2023, and filed the Affidavit of Service with the Clerk of the Court on October 6, 2023. On November 1, 2023, Defendant interposed an answer. As per decision and order of a prior court of March 7, 2024, Plaintiff filed a "formal complaint" on April 18, 2024 ("Formal Complaint"). On July 23, 2024, Defendant filed a Motion to dismiss pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7). Plaintiff opposed and Defendant replied. Motion #1 was subsequently assigned to this Court for a determination.

III. Discussion

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87, 638 N.E.2.d 511, 614 N.Y.S.2d 972 [1994]). The court is to "accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory" (see Leon, 84 NY2d 83, 87, 638 N.E.2.d 511, 614 N.Y.S.2d 972 [1994]; see also Amaro v Gani Realty Corp., 60 AD3d 491, 492-493, 876 N.Y.S.2d 1 [1st Dept 2009]).

A motion to dismiss pursuant to CPLR 3211(a)(1) permits a party to move for dismissal on the grounds that "a defense is founded upon documentary evidence" (CPLR 3211[a][1]). Such motion may be granted only "where the documentary evidence utterly refutes Plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (see Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 774 N.E.2d 1190, 746 N.Y.S.2d 858 [2002]; McCully v Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept 2009]; Art and Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

In assessing a motion under CPLR 3211(a)(7), "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' " (see Leon, 84 NY2d 83, 87, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994] citing Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635-636, 357 N.E.2d 970, 389 N.Y.S.2d 314 [1976]) and quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275, 372 N.E.2d 17, 401 N.Y.S.2d 182 [1977]). Plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that state a claim on its face (see Rovello, 40 NY2d 633, 635, 357 N.E.2d 970, 389 N.Y.S.2d 314 [1976]). As Defendant moved to dismiss pursuant to CPLR 3211, the Court is limited to an examination of Plaintiff's pleadings to determine whether they state a cause of action (see Miglino v Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351, 985 N.E.2d 128, 961 N.Y.S.2d 364 [2013]).

1. Defamation

"To 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" (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34, 987 NYS2d 37 [1st Dept 2014] [Internal citation omitted]). The challenged statement must " 'expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' " (see Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379, 366 N.E.2d 1299, 397 N.Y.S.2d 943 [1977] [Internal quotation omitted]).

Here, Plaintiff alleged three instances of defamation, occurring on March 23, 2023, "August 10" and "September 28".  ¹ First, Plaintiff asserted that on March 23, 2023, "Vice-Chef Adriana" accused him of stealing food products, for which the said vice-chef claimed the Restaurant had video evidence depicting same (Motion #1). Second, Plaintiff asserted that on "August 10", "Chef David" accused Plaintiff of stealing food products, for which the said chef claimed the Restaurant had video evidence depicting same (id.). Third, Plaintiff alleged that on "September 28", Plaintiff was accused of causing damage to the "property" and alleged that "they" had a video depicting same (id.). Plaintiff also alleged that he was "taken out of the restaurant in an inhuman [ ] manner, where [he] felt that [his] image, reputation and physical integrity were exposed in front of [his] colleagues" (id.).

In the foregoing three instances of alleged defamation, Plaintiff failed to assert that the statements were published to any third parties and to plead any damages as a result of the alleged defamation, and as such failed to state a cause of action. While Plaintiff is not required at this stage to ultimately establish his allegations, it is nevertheless required that he adequately alleged defamation on its face. Accordingly, the branch of Defendant's Motion to dismiss the cause of action alleging defamation is granted.

2. Discrimination

To state a cause of action alleging discrimination under Executive Law § 296 (New York State Human Rights Law, hereafter "NYSHRL"), a plaintiff must demonstrate that (1) he is a member of a protected class; (2) that he was qualified to hold the position; (3) that he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination (see Ferrante v. Am. Lung Assoc., 90 NY2d 623, 629, 687 N.E.2d 1308, 665 N.Y.S.2d 25 [1997]). Administrative Code § 8-107 (New York City Human Rights Law, hereafter "NYCHRL") also sets forth a similar and yet more liberal standard than the NYSHRL, as the plaintiff need only allege that he was subject to an unfavorable change or treated differently or worse than any of the other employees on the basis of a protected characteristic (see Harrington v City of New York, 157 AD3d 582, 584, 70 N.Y.S.3d 177 [1st Dept 2018]).

Plaintiff alleged that he "felt" discriminated against by "General Chef David and his staff" due to Plaintiff's age and nationality of origin. Plaintiff also claimed that his hours were cut, his duties increased, which obligated him to finish them outside his regular hours, and that he did not receive payment for the extra hours worked.

Here, the Court finds that even when the Court accepts the facts as alleged in the Complaint as true, accords Plaintiff the benefit of every possible inference and determines only whether the facts as alleged fit within any cognizable legal theory, the Complaint nevertheless failed to allege circumstances on its face giving rise to an inference of discrimination based on Plaintiff's age and nationality of origin. Plaintiff failed to state that any of the alleged foregoing treatment occurred due to his age and nationality, that he was treated differently than any of the other employees employed by the Restaurant or that the alleged foregoing treatment gave rise to an inference of discrimination. Plaintiff failed to plead the elements of discrimination on its face, and accordingly, the branch of Defendant's Motion to dismiss the cause of action alleging discrimination is granted.

3. Workplace harassment

For the matter at hand, it appears that Plaintiff claimed a cause of action for "workplace harassment" based on the fact that he was required to work even after his regular hours, for which he was not paid for.

To the extent Plaintiff sought to recover based on allegations of harassment, New York does not recognize a common-law cause of action for harassment (see Edelstein v Farber, 27 AD3d 202, 202, 811 N.Y.S.2d 358 [1st Dept 2006] citing Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240, 797 N.Y.S.2d 73 [2005]).

The Court notes that harassment in this context is a form of employment discrimination, that typically involves unwelcome conduct based on protected characteristics as specified in the NYSHRL and NYCHRL. Plaintiff has already stated a cause of action for discrimination. As such, Defendant's Motion to dismiss the cause of action alleging workplace harassment is granted.

IV. Order

Accordingly, it is hereby:

ORDERED that Defendant's Motion to dismiss Plaintiff's Formal Complaint is GRANTED in its entirety, without prejudice.

This constitutes the DECISION and ORDER of the Court.

Dated: April 21, 2025

County of New York

Hon. Wendy Changyong Li

Judge of the Civil Court

FOOTNOTES

1.   Plaintiff failed to provide the year for "August 10" and "September 28".

Wendy Changyong Li, J.