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Schmitt v. Artforum International Magazine, Inc.

Supreme Court of New York, First Department

December 26, 2019

Amanda Schmitt, Plaintiff-Appellant,
Artforum International Magazine, Inc., et al., Defendants-Respondents.

          Clarick Gueron Reisbaum, New York (Emily Reisbaum of counsel), for appellant.

          Proskauer Rose LLP, New York (Bettina B. Plevan of counsel), for Artforum International Magazine, Inc., respondent.

          Littler Mendelson P.C., New York (Margaret L. Watson of counsel), for Knight Landesman, respondent.

          Sweeny, J.P., Tom, Mazzarelli, Oing, Singh, JJ.

         Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered January 2, 2019, dismissing the complaint, pursuant to an order same court and Justice, entered December 24, 2018, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(7), modified, on the law, the judgment against defendant Artforum International Magazine, Inc. vacated, Artforum's motion to dismiss the claims alleging retaliation by Artforum against plaintiff in violation of the New York City Human Rights Law (Administrative Code of the City of NY § 8-107[7]) and promissory estoppel denied, and the judgment is otherwise affirmed, without costs.

         Plaintiff is a New York City curator and art fair director who began her career in 2009 at the age of 21 years, as a recent arrival from Wisconsin, with her employment at defendant Artforum. Artforum publishes a periodical that has significant influence in the art world arising in part from its role as a major advertising vehicle for participants in the art trade but also because of the various events that it sponsors, which serve as a forum for the leading participants in the art trade. The complaint as well as record materials indicate that defendant Knight Landesman is very influential and highly connected in the industry, and was one of Artforum's four co-publishers. In this capacity at Artforum, he exercised supervisory authority over plaintiff and others.

         Plaintiff's complaint alleges an extended period of sexual harassment of plaintiff by defendant Landesman about which defendant Artforum became informed and allegedly acted adversely to her in the closely-knit commercial art world with consequences including reputational harm. Shortly after plaintiff's employment with Artforum commenced, Landesman, who was then in his late 50s, subjected her to uncomfortable sexual advances. This continued while she was employed by Artforum and, despite her pleas that Landesman end that conduct, continued for several years after she left Artforum until she filed this action. Plaintiff explained that this was her first office job, and that she did not know how to respond to Landesman's sexual advances or how to fight back. Since Landesman was her supervisor and she was aware of his power in the art world, she was afraid to confront him or to risk her position at Artforum. Hence, she concluded that she was forced to put up with the harassment. Plaintiff claims that it became apparent to her that Landesman's proclivities were known at Artforum since, when the subject arose, people often rolled their eyes and said, "[W]ell, that's just how Knight is."

         Plaintiff left Artforum in August 2012 but, she alleges, Landesman's unwanted attentions and communications to her did not end. Rather, they expanded in person and by emails that are included in the record. The nature of the harassment and Landesman's ongoing sexual overtures are amply supported by the record for purposes of CPLR 3211. Plaintiff alleged that given her youth and lack of work experience, although she was disgusted, ashamed and confused, Landesman's goodwill was still critical to her professional advancement, which required her to endure his harassment. Landesman's connection with defendant Artforum was also an important factor in plaintiff's reticence in seeking legal relief. The complaint and supporting materials in the record establish, again for purposes of a CPLR 3211(a)(7) dismissal motion, the need for plaintiff to maintain good relations with Artforum, both as Landesman's publishing vehicle and because of its own seminal importance with respect to advancing or ruining careers such as plaintiff's.

         Artforum's influence was underscored for plaintiff when in December 2012 she was invited by Artforum to what the complaint characterizes as a prestigious dinner of insiders at an event in Miami where she participated as an exhibitor. At the time plaintiff no longer worked for Artforum. Landesman took the opportunity to email plaintiff again from an Artforum account with the subject line "Teacher*Student," where he gushed, "Good to have you at our dinner in the Miami moonlight," fantasized about a kiss, and urged her to "[g]ive yourself to me! ALL of you=to all of me, Our own deeply secret, deeply special, no boundaries, in friendship." This email was of a kind with a history of prior emails, the explicit details of which are not necessary to reiterate in this decision.

         Plaintiff alleges that she thereafter tried to keep her distance from Landesman. Nevertheless, she felt that it was professionally necessary to attend an Artforum dinner, which was attended by artists, dealers and curators, at its, and Landesman's, invitation in March 2013. He perpetuated his sexual harassment, now in front of clients and potential employers, and afterward emailed her again from an Artforum account where he professed his enjoyment at being her "teacher," but chided her with a "B- on your delivery to me." Plaintiff alleges that while she was seeking new employment during 2013, Landesman, knowing that his goodwill and status at Artforum were critical, took advantage of the opportunity by sending numerous increasingly sexually explicit harassing emails and texts included in the record, which she tried to ignore.

         As a consequence of the emotional distress this was causing her, plaintiff claims she had to start seeing a therapist in October 2014. Nevertheless, because of the nature of the industry, she could not avoid running into Landesman at events over the next two years. On those occasions he took advantage of the opportunity to whisper suggestions about masturbation and spanking while publicly touching her hands, waist, buttocks and hips without her consent.

         In April 2016 and thereafter, he texted her more explicit materials linked to explicit videos and web articles, and chided her when she failed to respond. When plaintiff saw Landesman in Artforum's premises in May 2016, she implored him to stop the harassment, which was harming her emotionally and professionally. In response he rubbed her calf with his shoeless foot and suggested that she request permission from her partner for Landesman to continue his conduct towards her. After she left, Landesman emailed her a similar request, eliciting her response that he had to stop the harassment that he had been perpetrating since 2012. In an ambiguous response, Landesman emailed back that they should meet so that they could "get on the same page" and resume their prior "friendliness."

         Instead, plaintiff met with Charles Guarino and Danielle McConnell, who published Artforum Magazine along with Landesman, to communicate the harassment and show them some of Landesman's emails. The publishers subsequently advised plaintiff by email that she could contact a lawyer and seek out other targets of Landesman's harassment. Plaintiff responded that she was not seeking monetary relief but only wanted to end the harassment without damage to her career. In response, Guarino promised in writing that Artforum was "taking action to insure that whatever may have transpired never happens again."

         Plaintiff alleges that any action taken was minimal and ineffective insofar as Landesman's harassment continued. However, she alleges, it became clear to her that Artforum did take action - but against her, by excluding her from the influential dinners and events which were professionally important in the New York art world to which she had regularly been invited in the past. In the meantime, plaintiff alleges, in reliance on Guarino's and McConnell's promise that Artforum would take steps to ensure that Landesman's sexual harassment ...

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