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Hoffman v. Parade Publications

May 7, 2009

HOWARD HOFFMAN, PLAINTIFF-APPELLANT,
v.
PARADE PUBLICATIONS, ET AL., DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Saxe, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Richard T. Andrias, J.P., David B. Saxe, Rolando T. Acosta, Dianne T. Renwick, JJ.

115851/07

This appeal raises the issue of New York courts' subject matter jurisdiction over claims of discrimination under the New York State Human Rights Law (NYSHRL) (Executive Law § 290 et seq.) and the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-101 et seq.) arising from the termination of plaintiff's employment where the decision to terminate was made in this state, and the call to the employee was made from this state, but the employee worked out of an office located in another state, resided in another state, and received the call communicating his termination while in another state.

According to the complaint, plaintiff was employed by defendants from 1992 until his termination on January 1, 2008, at which time he was 62 years old. From the beginning of the employment, except for the period of July 2001 to September 2002, when he worked in New York, plaintiff was almost exclusively based in defendants' Atlanta, Georgia office. In September, 2002, plaintiff was promoted to managing director for the newspaper relations group, a position he held until his termination. His responsibilities consisted of developing newspaper accounts for defendants' Parade Magazine in 12 states located in the South and West.

Plaintiff describes his responsibilities as that of a "traveling salesmen" who had "frequent in-person meetings in New York City." While defendants maintain that he operated from the Atlanta office, plaintiff characterizes the Atlanta office as a "mail-drop office" and denies that he could be characterized as an Atlanta employee. It appears from the allegations that plaintiff reported to, and occasionally traveled to meet with, Parade's management in New York.

On October 2, 2007, while in Atlanta, plaintiff received a telephone call from Randy Siegel, president and publisher of Parade in New York, informing him that defendants had decided to close the Atlanta office and terminate both plaintiff's and his assistant's employment. On October 12, 2007, plaintiff went to New York to meet with Siegel to discuss the termination and to suggest an alternative to discharge. On October 16, 2007, Siegel telephoned plaintiff, then in West Virginia on business, and told him that his alternative plan had been rejected and that the Atlanta office would be closed on January 1, 2008, at which time plaintiff's employment would end.

Plaintiff commenced this age discrimination action under the NYSHRL and the NYCHRL, alleging that he was the oldest employee in the newspaper relations group and the only one who was terminated, that the economic rationale given for his termination was pretextual, and that he had indisputably been an exemplary employee. Plaintiff also alleges that his former responsibilities were transferred to an employee in defendants' New York office who, at the age of 56, was "considerably younger" than plaintiff.

Defendants moved to dismiss the complaint under CPLR 3211(a)(2) for lack of subject matter jurisdiction and under CPLR 3211(a)(7) for failure to state a cause of action. The motion court agreed that it lacked subject matter jurisdiction over plaintiff's claims under the NYCHRL and NYSHRL, holding as a matter of law that the impact of defendants' alleged misconduct was not felt inside either New York City or New York State, as required by Shah v Wilco Sys., Inc. (27 AD3d 169 [2005], lv dismissed in part, denied in part 7 NY3d 859 [2006]).

We conclude that the complaint should not have been dismissed on a CPLR 3211 motion. The so-called "impact" rule as expressed in Shah should not be applied so broadly as to preclude a discrimination action where the allegations support the assertion that the act of discrimination, the discriminatory decision, was made in this state.

The New York State and New York City Human Rights Laws were enacted to combat discrimination within this state and city respectively (see Executive Law § 296[1][a] [NYSHRL]; Administrative Code of City of NY § 8-107[1][a] [NYCHRL]). The issue of subject matter jurisdiction arises where the alleged discrimination occurs in more than one state.

The assertion of this Court in Shah, that the NYCHRL is "limited to acts occurring within the boundaries of New York" (27 AD3d at 175), remains true in its essence, but does not resolve the question of subject matter jurisdiction in the case of acts occurring in this as well as other jurisdictions. To add a complication to the issue, I note that the NYSHRL by its terms may be applied to acts committed outside New York State if committed against a New York State resident (see Executive Law § 298-a[1]) - although this provision is inapplicable in this instance, since plaintiff is a non-resident.

The issue here is how we define the concept of "acts occurring within [] New York." Under what, if any, circumstances may a non-resident be ...


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