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ROBINS v. MARA

February 7, 1996

FRED ROBINS, Plaintiff,
v.
MAX MARA, U.S.A., INC., MAX MARA FASHION GROUP, SpA, JOSEPH PICONE, JULIA KAFERSTEIN, ORSETTA MANTOVANI, LUIGI MARAMOTI, and FERNANDO FORNACIARI, Defendants.



The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 This opinion addresses Defendants' motion to dismiss Plaintiff's state law claims which are before the Court as a result of diversity of citizenship between the parties. Plaintiff's federal question claims were dismissed pursuant to this Court's Amended Opinion and Order of January 16, 1996. The Court assumes familiarity with that Opinion, which sets forth the facts of this case.

 I. Standard

 In considering a motion to dismiss, the Court must presume all factual allegations in the complaint to be true. Cohen v. Koenig, 25 F.2d 1168, 1172 (2d Cir. 1994). Moreover, the Court must draw all reasonable inferences in favor of the non-moving party. Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Only if "it appears beyond doubt that the plaintiff[] can prove no set of facts in support of [his] claim which would entitle [him] to relief" should a court grant a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. State Law Claims

 A. New York Human Rights Law and New Jersey Law Against Discrimination

 Robins brings claims against Defendants under both the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (McKinney 1993) ("NYHRL"), and the New Jersey Law Against Discrimination, N.J. Rev. Stat. §§ 10:5-1 et seq. (West 1996) ("NJLAD"). Both laws prohibit, among other things, employers from discharging and discriminating against employees on the basis of certain factors including age, national origin, and disability. However, the statutes differ in the remedies available to successful litigants. Under the NJLAD, a successful plaintiff may recover punitive damages and attorneys' fees from a defendant found to have violated the law. N.J. Rev. Stat. § 10:5-27.1 (attorneys' fees); Levinson v. Prentice-Hall, Inc., 868 F.2d 558, 560 (3d Cir. 1989) (punitive damages). However, neither attorneys' fees nor punitive damages are available under the NYHRL. Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 499, 591 N.Y.S.2d 978, 606 N.E.2d 1369 (1992); Kump v. XYVision, Inc., 733 F. Supp. 554, 562 (E.D.N.Y. 1990). Therefore the laws are in conflict.

 When a federal court sitting in diversity faces conflicting laws, it may apply only one of the laws, and must choose between them according to the choice of law principles of the state in which it sits. Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 871 (2d Cir. 1994) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941)); Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 105 (2d Cir. 1991). Thus New York's choice of law jurisprudence governs the determination of whether to apply the NJLAD or the NYHRL. New York has different choice of law tests for tort and contract claims. For tort claims, New York focuses on which jurisdiction has the greater interest in a dispute. Travelers Indem. Co. v. Levy, 195 A.D.2d 35, 38, 606 N.Y.S.2d 167 (1st Dep't 1993). For contract claims, New York uses the "grouping of contacts" test. Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 226, 597 N.Y.S.2d 904, 613 N.E.2d 936 (1993). This difference is based on the "distinction between cases of conduct regulation and cases of loss allocation." Travelers, 195 A.D.2d at 38-39. Cases of conduct regulation are decided according to the state interest test, while cases involving loss allocation are "measured according to the grouping of contacts test." 195 A.D.2d at 39.

 While it is clear that an employment discrimination claim is not a tort, Cervenka v. New York City Transit Auth., 628 N.Y.S.2d 405, 405 (2d Dep't 1995), the claim is still a case of conduct regulation. Therefore the state interest test applies. Under that test, controlling effect is given "to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); see also Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 196, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985) (quoting Babcock). Thus, the issue to be decided is whether New York or New Jersey has the greater concern with Robins' claim of employment discrimination.

 Robins was employed by Max Mara USA, which has its principal place of business in New York. Am. Cplt. PP 5, 14. Robins further alleges that the discriminatory acts and practices against him occurred in New York. Affidavit of Fred Robins ("Robins Aff.") P 7, Am. Cplt. P 12. "[A] substantial part of the unlawful actions, events or omissions giving rise to the claims . . . occurred within . . . New York." Am. Cplt. P 13. As the claim's only apparent connection with New Jersey is that Robins is a New Jersey resident, Am. Cplt. P 3, New York is more "'intimately concerned with the outcome of the . . . litigation.'" Babcock, 12 N.Y.2d at 481-82 (quoting Auten v. Auten, 308 N.Y. 155, 161, 124 N.E.2d 99 (1954)). Consequently, Robins' NYHRL claim survives but his NJLAD claim must be dismissed.

 B. New York City Human Rights Law

 Robins also sues under the New York City Human Rights Law ("NYCHRL"), codified in Title VIII of the New York City Charter and Administrative Code ("Code"). Among other things, that law prohibits employers from discharging and discriminating against employees on the basis of certain factors including age, national origin, and disability. Code § 8-107. The law provides a cause of action in court for aggrieved employees, but requires employees, before suing, to "serve a copy of the complaint upon the city commission on human rights and the corporation counsel." Id. § 8-502(c). Defendants do not dispute that Robins served a copy of his original complaint on both entities before suing. See Robins Aff. PP 8, 9; Robins Aff. Ex. B. However, it is not clear whether Robins ever served those entities with a copy of his amended complaint. Defendants maintain that the law requires Robins to do so, and seek dismissal of Robins' NYCHRL claim on the ground that Robins did not comply with that requirement.

 The law is ambiguous on this point, as it includes no mention of amended complaints: "Prior to commencing a civil action pursuant to subdivision a of this section, the plaintiff shall serve a copy of the complaint upon" the required agencies. Code § 8-502(c). However, case law provides some insight into the interpretation of this provision. One recent decision emphasized that the policy behind § 8-502(c) appears to be to provide notice, "as the Code does not mandate that the City Commission investigate or attempt to mediate a dispute after being served with a complaint to be filed in a civil action and before permitting the complainant to proceed on that complaint in civil court." McIlwain v. Korbean Int'l Investment Corp., 896 F. Supp. 1373, 1384 (S.D.N.Y. 1995). In McIlwain, the defendants moved to dismiss the plaintiff's NYCHRL claim on the ground that she had not served the Corporation Counsel and City Commission on Human Rights with her complaint. Id. at 1383-84. Upon plaintiff's submission of an affidavit stating that she had since served the agencies with the complaint, the court found that § 8-502(c) was satisfied--that is, the agencies had received sufficient notice--even though service of the complaint was made after plaintiff commenced her lawsuit. Id. at 1384.

 Arguably, then, Robins has fulfilled the purpose of the statute. His service of the original complaint provided notice to the Corporation Counsel and City Commission on Human Rights that he would be suing the Defendants for employment discrimination. *fn1" Moreover, in another case addressing this provision, the plaintiff's failure to allege that she had served her amended complaint on the specified agencies did not require dismissal of an NYCHRL claim where the plaintiff's counsel certified in a letter to the court that the service had been made. See Dirschel v. Speck, 94 Civ. 0502, 1994 U.S. Dist. LEXIS 9257, 1994 WL 330262, at *5 (S.D.N.Y. July 8, 1994). *fn2"

 Several cases support the dismissal of an NYCHRL claim because the plaintiff did not serve (or did not prove he served) the agencies with the original complaint before commencing a lawsuit. See, e.g., Walsh v. Lincoln Sav. Bank, FSB, 93 Civ. 1101, 1995 U.S. Dist. LEXIS 1829, *2-*3, 1995 WL 66639, at *2 n.1 (S.D.N.Y. Feb. 17, 1995); Paladines v. Poulos, 93 Civ. 9031, 1994 U.S. Dist. LEXIS 10170, 1994 WL 389022, at *3 (S.D.N.Y. July 22, 1994); Lightfoot v. Union Carbide Corp., 92 Civ. 6411, 1994 WL 184670, at *5 (S.D.N.Y. May 12, 1994). However, in this case Robins did serve the agencies before commencing suit. There appears to be no case supporting the dismissal of an NYCHRL claim where the plaintiff had served the agencies with the original complaint but not an amended complaint. Consequently, in accordance with the reasoning of McIlwain and Dirschel, I decline to dismiss Robins' claim provided that he serves his Amended Complaint on both entities and notifies the Court of such service within 10 days of the date of this Opinion.

 C. Breach of Contract

 
1. Existence of Oral Contract Before ...

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