DE VITO v. YEH (2024)

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered on or about October 6, 2023, which granted defendant's motion to dismiss the complaint, imposed $750 sanctions on plaintiff's counsel, and ordered plaintiff to reimburse defendant's reasonable attorney's fees and costs, unanimously modified, on the facts and in the exercise of discretion, to vacate the imposition of sanctions against plaintiff and her counsel, and otherwise affirmed, without costs.

Plaintiff fails to state a cause of action either for disadvantageous action under the New York State Human Rights Law or for retaliation under the New York City Human Rights Law. The allegations that defendant, plaintiff's supervisor, ignored plaintiff several times while she was working at a Dolce & Gabbana location in front of unnamed “decision makers” do not constitute disadvantageous or retaliatory conduct for the purposes of the State or City Human Rights Laws (see Kwong v. City of New York, 204 A.D.3d 442, 443, 167 N.Y.S.3d 9 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1174, 174 N.Y.S.3d 697, 195 N.E.3d 532 [2022]).  Moreover, plaintiff fails to state a cause of action for tortious interference with prospective economic advantage because defendant's alleged conduct of ignoring plaintiff did not “amount[ ] to a crime or independent tort” (Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47, 888 N.Y.S.2d 489 [1st Dept. 2009], lv dismissed in part, denied in part 14 N.Y.3d 736, 898 N.Y.S.2d 74, 925 N.E.2d 73 [2010]).

Plaintiff also does not state a cause of action for intentional infliction of emotional distress, as defendant's alleged conduct was not “so extreme in degree[ ] as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] [internal quotation marks omitted]).

However, Supreme Court improvidently exercised its discretion in imposing sanctions on plaintiff and her counsel, as the action “did not constitute the type of frivolous, groundless litigation envisioned by 22 NYCRR 130–1.1[c][1]” (LaRussa v. LaRussa, 232 A.D.2d 297, 298, 648 N.Y.S.2d 567 [1st Dept. 1996]).  Furthermore, plaintiff's conduct was not rendered frivolous merely because the weight of authority appeared to favor defendant or because plaintiff's novel claims were unlikely to succeed (id.).  Nor is it apparent from this record that the lawsuit was undertaken primarily to harass or maliciously injure defendant (22 NYCRR 130–1.1[c][2]).