CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action
CPLR R. 3211(a)(7) pleading fails to state a cause of action
Hoffman v Parade Publs., 2009 NY Slip Op 03678 (App. Div., 1st, 2009)
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 [*3]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 entitled to the coverage of the NYSHRL?
"When a non-resident seeks to invoke the coverage of the New York City and State human rights laws, he or she must show that the alleged discrimination occurred within New York City and New York State respectively" (Rylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni, 549 F Supp 2d 549, 551 [SD NY 2008]). Application of logic and common sense alone would dictate that if an employer located in New York made discriminatory hiring or firing decisions, those decisions would be properly viewed as discriminatory acts occurring within the boundaries of New York. In fact, early case law from this Court supports that view.
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After consideration of the Shah decision and the federal case law it cites in support, we decline to apply that portion of the Shah decision as the settled law of this State. Initially, we observe that the quoted language is not necessary to the holding, and therefore constitutes obiter dictum. As the Shah Court acknowledged, the plaintiff in that case, like the plaintiff in Iwankow, did not even "allege that the decision to terminate her was made in New York City" (id. at 175, citing Iwankow v Mobil Corp., supra).
The Shah Court's grant of summary judgment dismissing the discrimination claim for lack of subject matter jurisdiction relied on the facts pointing exclusively to New Jersey events. Shah resided in New Jersey, and was working for a client located in New Jersey, was informed of her termination at that New Jersey office, and the reasons she was given for her termination -— insubordination, poor or inappropriate attitude, and inability to work in a team environment -— concerned her conduct at that New Jersey office. Indeed, the Court asserted that it could be "fairly inferred" from Shah's own account that the explanation for her termination was based upon her conduct at the New Jersey site; in fact, the majority explicitly rejected the dissenting Justice's suggestion that there were allegations from which it could be inferred that the termination decision was made in New York City (27 AD3d at 176).
Accordingly, we do not take issue with the result in Shah, insofar as it says it is based on facts exclusively pointing not only to an impact in New Jersey but also to a termination decision made in New Jersey, and the absence of an allegation that a discriminatory employment decision was made in New York. However, we view that portion of the ShahRylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni (549 F Supp 2d 549, [*5]551-552 [SD NY 2008]), in which the court pointed out that the aspect of Shah precluding subject matter jurisdiction unless the impact was within this jurisdiction was dictum, and that prior New York case law had turned on whether it was alleged that a discriminatory act occurred in New York. decision that asserts that "the locus of the decision to terminate her is of no moment," as overbroad and unnecessary, lacking sufficient support in prior case law. We adopt and employ the reasoning of the District Court in
Examination of the Southern District Court case relied upon in Shah, as well as other federal cases employing a similar "impact" rule, fails to disclose any convincing reason to support adoption of a rule that a New York court does not have subject matter jurisdiction where a discriminatory decision was made here, but the impact may be said to have been felt elsewhere. Indeed, the reasoning of those federal cases has been convincingly challenged elsewhere.
While the Shah decision provided no direct citation for its assertions that "the locus of the decision to terminate [the plaintiff] is of no moment" and that "[w]hat is important is where the impact is felt," that aspect of its discussion ended with a citation to Wahlstrom v Metro-North Commuter RR Co. (89 F Supp 2d 506 [SD NY 2000]).
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Finally, we observe that it would be contrary to the purpose of both statutes to leave it to the courts of other jurisdictions to appropriately respond to acts of discrimination that occurred here.
Since for purposes of this motion pursuant to CPLR 3211 we must accept as true the allegations that the decision to terminate plaintiff's employment was made in New York City and that the economic reasons given by the employer for the decision to terminate him were a pretext for discrimination on the basis of his age (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]), we cannot reject as a matter of law at this juncture plaintiff's claim that a New York City and State employer made a discriminatory decision here. If that assertion is ultimately established, it will be enough to demonstrate that the New York court has subject matter jurisdiction over his claims.
Accordingly, the appeal from the order of the Supreme Court, New York County (Martin Shulman, J.), entered July 7, 2008, which granted defendants' motion to dismiss the complaint, is deemed to be an appeal from the judgment, same court and Justice, entered July 24, 2008 (CPLR 5501[c]), dismissing the complaint, and, the appeal so considered, the judgment should be reversed, on the law, without costs, and the complaint reinstated.
Appeal from order, Supreme Court, New York County (Martin Shulman, J.), entered July 7, 2008, deemed to be an appeal from the judgment, same court and Justice, entered July 24, 2008, and so considered, said judgment reversed, on the law, without costs, and the complaint reinstated
The bold is mine.
