Petty v Law Office of Robert P. Santoriella, P.C.

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Petty v Law Office of Robert P. Santoriella, P.C. 2020 NY Slip Op 33908(U) November 25, 2020 Supreme Court, New York County Docket Number: 155468/2015 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 SLPREME COl:RT OF THE STATE Of '<EW YORK NEW YORK COUNTY: PART 26 ---------------------------------------------------.. ·----------------X SARA PETTY, DECISION AND ORDER AFTER TRIAL Plaintiff, -against- Index No.: 155468/2015 THE LAW OfflCE OF ROBERT P SANTORIELLA, P.C, and ROBERT S,'\NTORJELl,A. individually, Defendants. ----------------------------------------------------------------------)( Mary V. Ro>ado, J.: By Order dated July 22, 2020, the Hon. 1\nthony Cannataro directed counsel to appear on .August 5, 2020 for a court scheduledjudk:1al tncdiation via Sb_ype or the n1a.tter \\OUld be sent to inquest (~'YSCEF Doc. ;-,Jo. 50} ~fen<lants failed to appear on _!\ugust S. 2020 and on Septcntbcr 25, 202:0, an inquest was conducted before this Court and in support of her clai1n for darnages against defendants, Plainttff presented evidence and testified as to the following facts. BA(~'K(i ROf_Ji'•/J) Ouriug 2014, Plaintiff co1nmenced a !av;sult against her ex-boyfriend tOr, inter alia, sexual assault/rape {"civil litigation'') (Complaint 4 8; f\'\'SCEF Dex:, \o, I}, Plaintiffs ex.boyfriend asserted varioas counterclaims against her. including fraud and negligence for pregnancy. {Id.) Plaintiff's exboyfriend also filed a separate la\vsuit {\vhich is ongoing) against his foriner girlfriend alleging defamation of his character by libel and slander ('"defatnation litigation''). (ld.) In J:>ecember 2014, !n the defarnation litigation, the former girlfriend served Plaintiff with a subpoena duces tccum and ad testifca11d11m. {Id. at 1 9) TI1c fonner girlfriend asserted that PlaintitT \Yas a relevant \Vitness with respect to her existing sexual assaulurape claims agaio:.t the e-x-boyfr[cnd, {Id.) Plaintiff sought an attorney co represent her as a non-party witness in the defamation litigation. (Ill. at~ l O} On December 17, 2014, Plaintiff subntitted a referral request t<J Legal Shield for an attorney to represent her in the upcorning deposition and to file a 1notion to quash and/or limit a subpoena duces tccum. 1 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 (id, at 1] 8) rhat same day. Plaintiff received an e1nai! fro1n Legal Shield referring her to Defendant The La\\' Office of Robert P. Santoriella, P.C .. {""-rhe Law-Finn"). (id. at.- l: 1) On f)eceniber I 7, 2014, Plaintiff contacted The La\'J Firn1 to 5chedule an initial con')ulta1ion at the Manhattan office on the follov,dng !¥1onday, December 22. 2014. (!ti. at~ 12) Plaintiff v;.as unable fQ n1akc her appointment and called l'he [.,;1w Finn to reschedule, bur the «>.:eptionist i11fonned her thal the next available appointment was in January 2015. (Id. at 1: 13) lherefore. plaintiff requested that Defendant Robert Santoriella ('"Santoriella'') contact her via phone to discuss the representation_ (fd_J Santoriella contacted Plafnitff over the phone later that afternoon. and Plaintiff discussed \\ith him the defan)ation litigation; her related civil litigation and her concerns with appearing at the deposition. (id. al~ 14) Santoriella informed h..:r that he would charge her apprt!:xirnate!y S2,000 for his legal services. (Id) Plaintiff and Santtrriella cvmmunicatcd about the defacnatiol'l htigation via texl niessagc over lhe course of the tOllo\ving \.\:eek. (Id. at ~ 15) At Santoriel!a's request, Plaintiff sent Santoriella recordings, pictures and other documents and intOnnation related to her ex.boyfriend and the defan1ation litigation, because he chtirncd it \vas needed IC• evaluate properly her .;!aims, (Id.) Plaintiff lnforrned Santoriella of her reluctance to send hin1 the documents and infonnation because (if her ongoing trust issues with men a~ a result of tbe rape and the photograpbs triggered her Post Traumatcc Stress Disorder (Pl'SD). (J,l at 1i 16) Ho\vever, Santoriella conth1uously asked her to send sexually explicit photographs and videos of her and her ex-boyfriend. (Id. at ~I 18) He asked her detailed questions of the sexual encounti:rs depleted in the phot..1graphs alld vidCDs, which Plaintiff found to be "'inappropriate and huniiliating." (id. at ' 19) Santoriella also allegedly texted Plaintiff photographs of his girlfriend .. wearing lingerie and a strap on dildo" and invited her to join hirn and his girlfriend for drinks at his home, (Jd. at«;~ 20-2 l) Plaintiff, in response, asked Santoriella if he had sho\vn his girlfriend the sexually explicit photographs that Plaintiff sent to hiln, and Santoriella "confirmed that he had sho,vn his girl friend the conftdentia! photographs." 2 2 of 7 [*FILED: 3] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 (Id. at' 21) Plaintiff. helieving that Santoriella violated her privacy by u-.1ng her photographs fi)r his own sexual gratification, lm1nediately ignored Santoriella's subsequent text messages and calls beginning January 4, 2o;s, and sought tle>V legal representation. (Id. at.- 22) DISCUSS{(),V Plaintiff commenced this la\vsuil asserting three causes of action against defendants: ( i) discrimination in a public accom111odatio11 pursuant to Nev.: York State Executive Law ~ 296 (2) (a): (2} discrim[nation in a public accon1modation pursuant to Ne\v York (:it)' 1\dmin1strative Code§ 8-107 {4} (a); and (3} intentional Infliction of e1notional distress. New Yo~..S.~te l::x~utive La\V Under this statute, "'it shall be an unla\vful discrin1inatory practice for any perwn, being the O\\'ner, Jessee. proprietor. manage(. superintendent, agent or en1p!oyee of any place of public accommodation, resort or amusement. because of the, . :.:ex.,_ of any person, directly or indirectly. lo refuse, \.Vithhold fro1n or deny to SllCh person any of the accom1nodatlons, advantages, facilities or privileges thereof ... or that the patronage or custom then:at of any person or purporting to be of any particular ... sex ... is unwelcome, objectionable or not acceptablt:, desired or solicited"' (~ev. l:'ork State Exec Law§ 296 [2] [a]). Plaintitf alleges that Defendants violated this statute becat1'ie l)efcndants discriminated against her in a public accommodatlou based on her gender by rationalizing that the legal representation of her was dependent on her :,ubmission to Santoriella's sexual advances. A public accommodation is au establishment that deals with the goods or services of any kind. such as dental offices because they provide servit:es to the-public even if they n1ay be conducted on private pren1ises and by appointn1ent, as such places are generally open to the public (('ahill v Rosa, 89 NY2-d 14, 2 l [1996]). The definition of"place·· has been interpreted broadly and has been construed as a term of convenience and not a limitation. which '·need not be a lli.,ed location. it is the place where [defendants] Jo what they do," bt1! was still interpreted to he a lo..:ation where the defendants met and activities occurred ( {/.,)' J'ouY;r ,\quadrons '\'.'irate Hurnan Right.\ _4ppetrJ Bd., 59 NY2d 401, 4 l 1 [1983 J), 3 3 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 This definition has been expanded even tl1rther to include establish1nents lhat provide goods and services to individuals without access to any particular place, similar to hon1e delivery services or services performed in the customer's hon1c, and even includes websites (Andrelf'.\ 1· Blick Art A1aterials, LL<·, 268 F Supp 3d 381, 400 [ED '.'JY 2017])_ Given such a broad Interpretation, it seems that a la\V tlr1n can generally be considered a place of public accommodation. !·lowever. here, Plaintiff fniled to allege that Defendants withheld tfoin or denied her ''"any of the accornmodations, advantages, fi:1cilities or privileges" that th<: law firm provides. and also failed to show that her patronage was '·unv-.•elco1ne, objectionable or not acceptable, desired or solicited."" Therefore, Plaintiff failed to establish this cause of action and it is dismissed. New York Citv Administrative Cpde Linder this statute, [I}t shall be an unlawful discri111inatory practice for any penon who is. the owner, franchisor, franchisee, lessor. lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accom1nodation because of any person's: . gender ... directly l)r indirectly to refuse, withhold from or deny to such person the full and equal enjoyment, on equal tern1s and conditions, of any of the ace-01n1nodations, advantages. services. fa..;Hities or privileges of the place or provider of public accommodation; or directly or indirectly to inake any declaration, publish, circulate, issue, display, post or mail an.; v.ritten or printed communi<:ation. noric.: or advertisement to the effect that full and equal enjoyn1ent, on equal term:, and conditions, of any of the accommodations, advantages, fac1Hties and privileges of any su;..:h place or provider of public accommodation shall be tcfused, withheld from or denied to any person on account of ... gender ... \)f th('. patronage or c-uston1 of any person is Hll\~'elcome, objectionable, not acceptable, undesired or unsolicited becau:i.e of such person's- , . , gender., .. New York City Admin. Code§ 8wl07 !4] [a]. Even though this slatute uses <;in1i!ar language to the Nevi' York State Executive [,a\\·, the Nev,. York City Adtninistrativc Code rnust be given '·an independent liberal construction analysis in all circurnstances. even \\<'here state and federal c!vtl rights la\v have con1parable language" (Willuuus v NJt_: flow;, ;Juth., 61 AD3d 62, 66 [1st I)ept 2009]}. Since the legislative h!s-tory of the Adininistrative Code considered the New York City flurnan Rights l,aw to be liberally and independently construed, case la\v that discussed the State Human Rights la\v ·"should 1nere!_y serve as a base for the Ne-..v York City J1u1nan 4 4 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 Rights Law, not its ceiling'' (.lurdan v Bales .4dv. Jloldin5:.s, Inc.. l 1 ?<.1isc }d 764, 77 l ~Sup Cl. New York 2:006]) The federal and state civil rights l:rws create a floor "bclo\\' which the City's Hu1nan Rights la\\· cannot faH" (Blick Art Materials. Inc., 268 F Supp 3d at 400. quoting LDe_fjler v ,\'t(tfen ls!an,f [/niv. ffoilp., 582 F3d 268, 278 [2d Cir 2009]). A \Vebsite was considered to be a provider of a public accommodation, because ·'it undoubtedly ·provides' to the public ··accDtnmodations, advantages, services. facilities or privileges" (Blirk Art Jla!eriais. fnc., 268 F Supp 3d at 400). lf .a la\v firn1 may generally be considered a pub Ile accommodat1on under the broader Ne\V York Slate Executive l,av., then it seetns logical that a law firm may also be considered to he a public acc\lmn1odation under the New York City Administrative Code, Herc, PlaintifT has not es1ahltshcd th ls cause of action as she failed lo allege that Defendants \',·ithheld frorn or denied her the "'full and equal enjoyment" of '':)n) of the accom1noda1if~ns, advantages, services, facilities or privileges of the place or provider of public accoinmodation·'; or that Defendants rr.ade any "declaration, published, t:irculated, is.sued, displayed. posted or maih;:d any wriuen or printed con1n1unication, notice ofadvertisetnent" of ''any of the accotnn1odati•.1ns, advantages, services, facilities or privileges of the place or provider of public accommQdation"; or that her "patruuagc or custorn'' was "unwelcome, objectionable. not acceptable. undesired or unsolicited'' because of her gender. Therefore, this cause of action is dismissed" ln1~.t!!!QI!!i!l Int1is:tion of Emotional Distress In order to prevail on a cause of action for inten11ona! infliction of en1otiona! distress, Plaintiff 1nust sho>v that {)efendants, "by extre1ne and outrageous conduct intentionally or recklessly caused severe en1otional dislro;;ss to lplaintift]" {floive!l v :Ve"tv York Post (-:o., Inc .. 8 l "'J't'2d 115. 12 l [ !993] [internal citations omitted]). Claims of en1otional distress require allegations nf conduct "so (~utrageous and extreme as to exceed all bounds of decency" (/rAollerson 11 ('ily 1if}\1~'H' r·ork. 8 Af)3d 70. 7 t (I '1 Dept 2004): .1·ee afso .'Jheifit l:. 1· l'ovich. 11 .l\l)~d 120, 130~13 I [Jn Dept 2004]) ·rhere can be recovery on a claim of emotional distress ··only \1thcre severe n1ental pain or anguish is inflicted through a deliberate and malicious campaign of harass1ncnt or intimidation" ((Jwen v Levi'nfritf. l 74 Al)2d 47;, 472 [ts! Dep! 5 5 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 1991 J [internal citations 01nittcd]}. Here, Piainciff s interactions \Vith Santoriella were exclusively through text inessaging a1id phone caUs over the cours.e of eighteen {18) days. Although Plaintitr rnay have found Santoriella 's conduct humiliating and offensive, Plaintiff failed to allege and establish a deliberate and n1alicious ca1npaign of harassment or intimidation, as is required. For these reasons, this cause ofa!;:tion is disrnissed. Darnugcs ,\!though Defendants have conceded liability by dt.•fau!tlng, the coun cannot blindly av:ard damages (se.; (.'hase li1unhattun Bank v Evergreen .'>;tee! Corf>., 91 i\D2d 539 l lst Dept 1982)). '"Where there has been a default in appearing or ans\vering, or summary judg1nenl has been granted on the issue of liability and an inquest directed, it is still necessary to present proof of dan1ages" Paulson v Kotsililnhas, 124 AD2d 513, 514 ( l st Dept 1972}. Plaintiff seeks (:) punitive dan1ages; (2) con1penhll.tOf} damages; (3) !ost \vagcs; and (4) atton1eys' tee~. Plaintiffs claim for punitive damages is dismissed as New York does not recognize a separate cause of action for punitive dan1ages (see (;o/dstein v. if'inard, 173 AD2d 20 I [Isl Dept 1991 ]). l\1oreover. the facts alleged do not establish willful, gross or \\'arlton fraud nr other morally <:ulpable or reprehensible conduct such as to \Varrant the imposiiion of punitive d;;unages {vet:' ('ohen v. :\Ia::oh. 12 AD3d 296, 297 [I st Dept 2004J: see t1/so ,\!e~v .Fork [lniv_ v. (:onl. ins Con111an.v, 87 NY2d 308, 315-316 [punitive damages available only in limited circumstances where it is necessary to deter gross, morally reprehensible or wantt)nly dishonest conduct or egregious conduct directed at the publit: generally]). Plaintiffs claim for unnpensatory damages is dismissed sin.:c, as detailed abnv..:, the pleadings fail to contain any legally cognizable <:-auses of action for the imposition of ao a\•iard of damages. Plaintiff's clai1n lbr lost wages is dis1nisscd since, as detailed abo\re, there is no cause of actiDn upon \\•hich an award of damages may be based. Generally, attorneys' fees and disbursements arc ··incidents of litigations" and a prevailing p.arty may not colk:ct such fees from the ··loser unless an aw-ard is authorized b)- agreentent bet\vecn the parties or by statute or court rule" (,4_0, 5;hif' A1aintenance f:orp. \' L.:::ak, 69 NY2d I, 5 [1986]) Here, there is 6 6 of 7 [*FILED: 7] NEW YORK COUNTY CLERK 11/27/2020 04:04 PM NYSCEF DOC. NO. 52 INDEX NO. 155468/2015 RECEIVED NYSCEF: 11/27/2020 no 1nention as to an agreeinent bet'W·een the parties, and Plaintiff does not cite to aoy statute or court rule tha! may allow attorneys' fees to be collected. CONCLUSION lt is hereby ORDERED that PlaintitT shall serve a copy of this De~ision and Order with Notice of Entt)' upon a!I parties entitled to notice_ This constitutes the Decision and ()rder of this C'.ourt.>.. 1112512020 CHECK ONE; \/ {(,, ....... --- Maf'Ytl. Rosado, J.S,C- DATE CASE OiSPOSED GAANTEO 0 DENIED APPLICATION: SETTLE ORDER CHECK If APPROPRIATE: INCLUDES TRANSFER!REASSIGl>I 7 7 of 7 ~ NON·flNAL DISPOSITION GRANTtiO IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D OTHER c REFERENCE

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