Rubin v Napoli

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Rubin v Napoli 2016 NY Slip Op 30324(U) February 25, 2016 Supreme Court, New York County Docket Number: 160474/15 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] "-r .:~I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ' ,[ ; ---------------------------------------------------------------------X . DENISE A. RUBIN, ,,I Index No. 160474115 I Plaintiff, -against- tl '.! DECISION/ORDER PAUL J. NAPOLI, ,- Defendant. ---------------------------------------------------------------------X HON. CYNTHIA KERN, J.S.C. ·: :1 ' 1' Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ~~~~~~~~~~~~~~~~~~~~ Ii if ,} Papers tNumbered ; Notice of Motion and Affidavits Annexed ................................... . Affidavits in Opposition ........................................................ . Replying Affidavits ..................................................................... . Exhibits ..................................................................................... . 1 ·~ ,, 2 " 3 4 1i " ,, " l Plaintiff Denise A. Rubin commenced the instant action alleging ~mployrrient __ , 11 '.! :1 discrimination against defendant Paul J. Napoli, one of the managing part~ers of the law firm at which plaintiff was employed. Defendant Napoli now moves for an Ord~r (1) p~rsuant to !! ' " CPLR § 321 l(a)(5) dismissing the complaint based on the doctrine of re;'l/udicatk and/or ' ! ! ! Ii collateral estoppel; (2) pursuant to CPLR § 3211 (a)(.7) dismissing the con?plaint \pr failure to ~ .. state a claim ~ n' pursu~n~ to New York Partnership Law ("Partnership Law")i§ 26(b)j or, in the ' :I : f alternative, (3) consolidating this action with a related action pending bef6re this court against :r ,, I; :,/ ;~ ' 'r 1' several ofNapoli's law firms. Defendant's motion is resolved as set forth below.I i The relevant facts according to the complaint and the procedural . ~lstory ~ of this case are q . :~ t as follows. Between 2003 and 2014, plaintiff was, at various times, employed by several of : 1f I• i 1 Napoli's law firms. Defendant Napoli was a senior partner at each of the: law finps and i [* 2] 'I ·~ •\ consistently exercised primary operational and administrative control over each of the law firms . 1 r ' bearing his name. Plaintiff alleges that during her tenure at the law firms, Napoli discriminated l against her by deciding to pay her far less than male attorneys with less ~lperien~e and a Ii I~ responsibility and by deciding to hire male attorneys with less experiencJ and wifh far less I; responsibility as partners while plaintiff remained an associate attorney. '.)Plaintiff further alleges I• .I i/ '.I that despite Napoli's promising on multiple occasions that plaintiff would receiv¢ bonuses, the ·~ r: f 1i bonuses were rarely paid while commensurate bonuses were paid to malci attorneys. Plaintiff ~ It was terminated from Napoli's law firms in September 2014. •' ~ i Plaintiff then commenced an action against Napoli and Napoli's law firms alleging . :i :1 ' ·t employment discrimination and breach of contract (the "First Action"). ,Napoli fhen moved to :[ ~· dismiss the complaint as against him individually pursuant to i! ij_ Partnershi~:Law § ~6. ~ ' j 1l Specifically, Partnership Law § 26 imposes joint and several liability upon all individual partners ~ I~ . I ·r .. 1; in a partnership for all obligations chargeable to the partnership under Pahnershi~ Law § 24 and § 25, which are referable to wrongful acts committed by one or more paribers of the partnership it l1 ' acting in the ordinary course of partnership business. Partnership Law §126(b ), , 1~ ' ~owever, ,, :; immunizes from individual liability, whether arising in tort, contract or otherwise'; any partner in -0 ! Ii ,j a partnership registered as a limited liability partnership who did not commit the underlying t wrongful act. Thus, in a ~ecision dated September 2, 2015, this court !~ gr~nted NJpoli's motion j( Ii i and dismissed the complaint in the First Action as against him individually on the ground that ,, 1i ,) "the Firms are all limited liability partnerships and plaintiff fails to allegehhat Napoli personally ! ;~ i"l committed a discriminatory act against her to hold him personally liable."~ Specifically, this 'I ' court explained that "[a]lthough plaintiff makes broad conclusory allegati~:ms regarding Napoli, ,, 2 :l [* 3] such that he made continued assurances regarding her compensation and:advancement in the Firm, she fails to specifically allege that Napoli personally committed a discriminatory or wrongful act against plaintiff." r : Thereafter, plaintiff commenced the instant action under a separate indexunumber against . : ., Napoli in his individual capacity asserting one cause of action for employment discrimination. Defendant Napoli now moves to dismiss the action in its entirety or, in the alternative, for an Order consolidating the instant action with the First Action. The court first turns to defendant's motion to dismiss the complaint on the basis of res judicata. The doctrine of resjudicata. or claim preclusion. "provides th~t as to the pmiies in a r litigation and those in privity with them. a judgme1)t on the merits by a c~urt of cbmpetent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action." Singleton 1\:Jgt. v. Compere. 243 A.D.2d 213, 2 i 5 (I st Dept 1998 ). This doctrine is applied "when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first. .. Id Further. even if ce1iain claims were not litigated in the prior action. claims brought : ·'l later will be barred by resjudicata if they ··could have been asserted in th~ :i first action and [plaintiff] had a full and fair opportunity to litigate those claims in that action:· Santiago v. New fork Board ofHeafth. 8 A.D.3d 179, 181 (I st Dept 2004 ). The Court of Appeals has held that a prior dismissal of a complaint is not a bar, based on res judicata, to a later action when the motion in the first action was directed at the pleading, attacking the sufficiency of the complaint as stating a cause of action. Se,e 175 E. 74th Corp. v . .~ ,,~ 'I Hartford Acc. & lndem. Co., 51 N. Y.2d 585 (1980). Specifically, the Court of Appeals 3 [* 4] explained that "[a] dismissal on such motion has preclusive effect only a~ to a ne;v complaint for '' ' the same cause of action which fails to correct the defect or supply the omission ~1 exist in the earlier complaint." Id. at 591. See also Van Minos v. :~ Merk~ey, ~ '! I ~etermined to ,i l! 48 i}.D.2d 281, 284 1,~ . I i :1 '. 'Ii Dept 1975)("when a complaint is dismissed for legal insufficiency of other d~fect in [the] ., I . " 1 pleading, it does not act as a bar to [the] commencement of a new action for the same relief (41h unless the dismissal was expressly made on the merits or the new complaint failsho correct the t ' defects or omiss.ions fatal to the prior one.") In the instant action, defendant's motion to dismiss the complaint'.ion the b,asis of res . ~ j judicata must be denied as this court finds that the complaint in this action sufficiently corrects 'I ;' '! the defects and omissions which were fatal to the complaint in the First Action. :'.This court '~ '.i ~, I!, dismissed the complaint in the First Action because it found that the complaint merely made ! broad conclusory allegations regarding Napoli, such that he made continJed assutances 1. i! ~l regarding plaintiff's compensation and advancement, but that the 11 compla~nt •~ failed to specifically I~ :t i ,r :~ ,, 11 allege that Napoli personally committed a discriminatory or wrongful act[against ,plaintiff, as required by Partnership Law § 26. However, the court finds that the co~plaint ip the instant ' ,, action corrects said deficiencies. Specifically, the complaint alleges that;Napoli ,himself decided : i ,., i\ to pay plaintiff far less in base salary and bonuses than less qualified mal~ attorneys and that although Napoli represented to plaintiff that he wanted to promote her to partner)Napoli did not <I .~ ' '; promote plaintiff to partner but instead made the decision himself to prmrjote andfor hire as ! ., :I 11 partners several male atfomeys who were less experienced, less skilled arld who exercised less ' I' ~~ responsibility than plaintiff. Additionally, the complaint alleges that Na#oli him~elf threatened ·\. ! . ! and harassed plaintiff, eventually terminating her employment in an e-m~il statin~ "I think it is 4 [* 5] l ' i ,, best that you look for another job." Finally, the complaint alleges that '~{'Japoli,j .. personally discriminated against Plaintiff in the terms, conditions and privileges of ~mployrhent on account ' ~ I~ ,, I! 'I ,j of her sex." Based on said allegations, the court finds that the complaint in the instant action I 'i ;~ sufficiently corrects the defects and omissions which were fatal to 1t plaint~ff s complaint in the First Action and thus, the instant action is not barred by res judicata. \ .I • ' The court next turns to defendant's motion to dismiss the complaint on th'.e ground that it ~; i! fails to state a claim. On a motion addressed to the sufficiency of the cdbplaind the facts r l ;! . ' 1 1 1• pleaded are assumed to be true and accorded every favorable inference. iMorone,; v. Marone, 50 J " N.Y.2d 481 (1980). Moreover, "a complaint should not be dismissed od a plead'ing motion so ,. '. II -~ I! long as, when plaintiffs allegations are given the benefit of every possibie inferehce, a cause of ; '~ ·i !i ~ I~ action exists." Rosen v. Raum, l 64 A.D .2d 809 (pt Dept. 1990). "Wh~fe a plea,ding is attacked for alleged inadequacy in its statements, [the] inquiry should be limited tb 'whetHer it states in J : :1 i some recognizable form any cause of action known to our law."' Foley':'· D'Agdpino, 21 ,, A.D.2d 60, 64-65 (1st Dept 1977) (quoting Dulberg V. Mock, 1 N.Y.2d 54, 56 (1956)). • Ii ·! " However, "conclusory allegations - claims consisting of bare legal concl¥sions ~ith no factual ~ specificity - are insufficient to survive a motion to dismiss." Godfrey v.~Spano, N.Y.3d 358, ~: i! 373 (2009). p In the instant action, this court finds that defendant's motion to dikmiss th¢ complaint on I\ '' . :! •I the ground that it fails to state a claim must be denied. Specifically, defJndant a~serts that the ' '. j ~ action against him is barred by Partnership Law § 26(b), which immunizJs from i'ndividual ; liability, whether arising :1 i~ tort, contract or otherwise, any partner in a p~rtnershib registered as a -..t i[ 1l : limited.liability partnership who did not commit the underlying wrongfui'.iact. However, as this ~ " 5 i~ [* 6] court has already explained, the complaint in the instant action sufficiently alleges that Napoli himself committed the wrongful discriminatory acts alleged by plaintiff.: Thus, the complaint may not be dismissed on that ground. Finally, defendant's motion for an Order consolidating this action with the First Action is granted without opposition. Accordingly, it is hereby ORDERED that defendant's motion to dismiss the action is deniJd in its entirety; and it is further ORDERED that defendant's motion to consolidate this action with the First Action is I granted; and it is further 11 . I'I ORDERED that the above-captioned action is consolidated in this court '-Yith Rubin v. ,1 !: Napoli Bern Ripka Shkolnic, LLP, et al., Index No. 154060/2015, under Index N~. 154060/2015, and the consolidated action shall bear the following caption: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ---------------------------------------------------------------------)( DENISE A. RUBIN, ,, IndexNo. 154060/2015 Plaintiff, -against- NAPOLI BERN RIPKA SHKOLNIC, LLP, WORBY GRONER EDELMAN & NAPOI BERN, LLP, NAPOLI BERN & ASSOCIATES LLP and PAUL J. NAPOLI, Defendants. ---------------------------------------------------------------------)( And it is further 6 [* 7] ORDERED that the pleadings in the actions hereby consolidated" shall stand as the pleadings in the consolidated action; and it is further ORDERED that movant is directed to serve a copy of this order with notice of entry on } I!" the County Clerk (Room 141 B), who shall consolidate the papers in the; actions hereby consolidated and shall mark his records to reflect the consolidation; and ;it is further <.i ORDERED that movant is directed to serve a copy of this order ~ith notice of entry on the Clerk in the General Clerk's Office (Room 119), who is hereby directed to mark the court's records to reflect the consolidation. This constitutes the decision and order of the court. ) ,, Dated: )..1 l c;::-~__._,~---- S- \ \{ Enter:----'--'<' , J.S.C. CYNTHIA s~ K_i:~ ':! t ,, .. i 7

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