Patrowich, however, offers little support for defendants'
argument because it neither considered nor cited the
subdivision six aider and abetter language. aider and abettor
Several courts have concluded that the aider and abettor
language cannot be utilized to expose co-workers to liability
because to do so would unduly broaden the scope of the HRL.
Falbaum v. Pomerantz, 891 F. Supp. 986, 991-92 (S.D.N Y
1995); Trovato v. Air Express Int'l, 238 A.D.2d 333, 655
N YS.2d 656, 657 (2d Dep't 1997); Foley v. Mobil Chem. Co.,
170 Misc.2d 1, 647 N.Y.S.2d 374, 380-81 (Sup.Ct. 1996).
Defendants cite each case in support of their argument. The
Second Circuit, however, has expressly held that the aider and
abettor provision supplies a basis for liability for individual
co-workers. Tomka, 66 F.3d at 1317. Prior to Tomka, several
district courts had reached the same conclusion. See, e.g.,
Poulsen v. City of North Tonawanda, N.Y., 811 F. Supp. 884, 900
(W.D.N.Y. 1993) (citing cases). Numerous other federal courts
have since found Tomka controlling and have permitted the
aider and abettor theory to proceed. See, e.g., Oliver v.
General Nutrition Ctr., No. 97-Civ.-6800, 1999 WL 435208, at
*3 n. 6 (S.D.N.Y. June 25, 1999) (citing cases); Kojak v.
Jenkins, No. 98-CV-4412, 1999 WL 244098, at *6-7 (S.D.N Y
Apr. 26, 1999); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp.2d 477,
487 (S.D.N.Y. 1999). Nor, as defendants concede, is the
issue resolved in the New York state courts. While the Second
Department has rejected the aider and abettor theory, the First
Department has embraced it and permitted such claims. See
Steadman v. Sinclair, 223 A.D.2d 392, 636 N.Y.S.2d 325, 326
(1st Dep't 1996); Peck v. Sony Music Corp., 221 A.D.2d 157,
632 N.Y.S.2d 963 (1st Dep't 1995).
Defendants suggest that Tomka has been called into "grave
doubt" by the Trovato and Foley decisions which they
contend are the "most authoritative" because they are state
court interpretations of state law. Defs. Reply Mem. of Law, p.
10. Defendants' argument is not persuasive. First, the most
important precedential authority presented is that from the
Second Circuit as this Court is bound by its decisions of law.
Kojak, 1999 WL 244098. at *7 ("this Court is bound by the
Second Circuit's holding in Tomka"). More important is the
fact that the state courts themselves are divided and thus,
while Tomka may be subject to criticism, there is no basis on
which to find that it was improperly decided. Indeed, the vast
majority of federal courts to have considered the question have
followed Tomka. See Oliver, 1999 WL 435208, at *3 n. 6
Accordingly, Tomka and the vast majority of federal
authorities following it govern here and defendants motion for
summary judgment with respect to the individual defendants is
WHEREFORE, for the reasons stated above, it is hereby
1. Petrosky's second amended complaint (Docket No. 60) is
STRICKEN from the record;
2. Defendants' motion for summary judgment is:
A. GRANTED as to Petrosky's first cause of action (sex
discrimination in violation of Title VII) in its entirety;
B. GRANTED as to Petrosky's claim of sex discrimination in
her fourth cause of action (section 1983) and her fifth cause
of action (sex discrimination in violation of
the HRL) as to events alleged to have occurred prior to June 6,
C. GRANTED as to Petrosky's fourth cause of action (section
1983) against defendant Hass; and
D. DENIED in all other respects; and
IT IS FURTHER ORDERED that the Clerk of the Court serve a
copy of this order, by regular mail, upon all parties to this
IT IS SO ORDERED.