FILED: NEW YORK COUNTY CLERK 09/02/ :25 PM INDEX NO /2016 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/02/2016

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1 FILED: NEW YORK COUNTY CLERK 09/02/ :25 PM INDEX NO /2016 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LAWRENCE BOLIAK, MAUREEN SMITH AND THOMAS RODES, Plaintiffs, Index No.: /2016 v. FATHER MICHAEL P. REILLY, ROBERT RICHARD, GREG MANOS, ST. JOSEPH BY THE SEA HIGH SCHOOL, CARDINAL TIMOTHY DOLAN and the ARCHDIOCESE OF NEW YORK, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS CARDINAL TIMOTHY DOLAN, THE ARCHDIOCESE OF NEW YORK, ST. JOSEPH BY THE SEA HIGH SCHOOL, ROBERT RICHARD AND GREG MANOS S MOTION TO DISMISS THE AMENDED COMPLAINT 1 of 19

2 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 BACKGROUND... 3 A. The Parties... 3 B. The First Through Third Causes Of Action Purport To Assert Claims For Gender Discrimination, Age Discrimination, and Retaliation Against the Individual Defendants... 3 C. The Complaint Purports To Hold The Archdiocese And Cardinal Dolan Liable For the Alleged Conduct of the Individual Defendants, But Pleads No Facts To Support Such Liability... 5 D. Plaintiffs Purport to Assert A Claim For Defamation In Connection With An Incident In Which Boliak Admits That He Grabbed The Pants Of A Young Man... 5 ARGUMENT... 7 I. THE COURT SHOULD DISMISS THE DEFAMATION CLAIM BECAUSE THE STATEMENTS AT ISSUE CONSTITUTE NON- ACTIONABLE OPINION... 7 II. III. THE FOURTH CAUSE OF ACTION AGAINST CARDINAL DOLAN SHOULD BE DISMISSED THE FIFTH CAUSE OF ACTION AGAINST CARDINAL DOLAN AND THE ARCHDIOCESE FOR AIDING AND ABETTING SHOULD BE DISMISSED BECAUSE THERE ARE NO ALLEGATIONS THAT THEY ACTUALLY PARTICIPATED IN THE ALLEGED DISCRIMINATORY CONDUCT CONCLUSION i 2 of 19

3 TABLE OF AUTHORITIES Page(s) Cases 117 East 24th Street Associates v. Karr, 95 A.D.2d 735(1st Dep t 1983)...7, 10 Berardi v. Berardi, 108 A.D.3d 406 (1st Dep t 2013)...7, 10 D Agostino v. Gould, 158 A.D.2d 577 (2d Dep t 1990)...9 Dillon v. City of New York, 261 A.D.2d 34 (1st Dep t 1999)...8 Feingold v. New York, 366 F. 3d. 138 (2d Cir. 2004)...11, 14 Fowler v. Am. Lawyer Media, Inc., 306 A.D.2d 113 (1st Dep t 2003)...7, 10 Frechtman v. Gutterman, 115 A.D.3d 102 (1st Dep t 2014)...9 Int l Pub. Concepts, LLC v. Locatelli, No /2013, 46 Misc. 3d 1213(A) (N.Y. Sup. Ct. Jan. 15, 2015)...9 Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376 (S.D.N.Y. 1999)...14 Liu v. New York City Police Dep t, 216 A.D.2d 67 (1st Dep t 1995)...7, 10 Makinen v. City of New York, No. 11-cv-07535, 2016 U.S. Dist. LEXIS (S.D.N.Y. Feb. 29, 2016)...12, 14 Mann v. Abel, 10 N.Y.3d 271 (2008)...9 Mitra v. State Bank of India, No. 03 Civ. 6331, 2005 U.S. Dist. LEXIS (S.D.N.Y. Sept. 6, 2005)...11, 12 Morgan v. NYS AG Office, No. 11 Civ. 9389, 2013 U.S. Dist. LEXIS (S.D.N.Y. Feb. 08, 2013)...14 ii 3 of 19

4 Naderi v. N. Shore-Long Island Jewish Health Sys., 135 A.D.3d 619 (1st Dep t 2016)...8 O Neill v. New York Univ., 97 A.D.3d 199 (1st Dep t 2012)...8 Panghat v. New York Downtown Hosp., 85 A.D.3d 473 (1st Dep t 2011)...9 Pecile v. Titan Capital Grp., LLC, 96 A.D.3d 543 (1st Dep t 2012)...9 Phillips v. Trommel Constr., 101 A.D.3d 1097 (2d Dep t 2012)...7, 10 Rosenberg v. Home Box Off., Inc., 33 A.D.3d 550 (1st Dep t 2006)...8 Sabharwal & Finkel, LLC v. Sorrell, 117 A.D.3d 437 (1st Dep t 2014)...9 Silverman v. Daily News, L.P., 129 A.D.3d 1054 (2d Dep t 2015)...9 Ullmann v. Norma Kamali, Inc., 207 A.D.2d 691 (1st Dep t 1994)...6, 7, 10 Statutes N.Y. Exec. Law , 12 Other Authorities CPLR 3211(a)(7)...1, 7 CPLR , 10 CPLR New York City Administrative Code , 11, 12, 13 iii 4 of 19

5 Defendant Cardinal Timothy Dolan ( Cardinal Dolan ), by and through his undersigned counsel, hereby submits this memorandum of law in support of his motion, pursuant to CPLR 3211(a)(7), to dismiss all claims asserted against him in the Amended Complaint (the Complaint ) filed by Plaintiffs Lawrence Boliak ( Boliak ), Maureen Smith ( Smith ), and Thomas Rodes ( Rodes ) on July 6, 2016, on the grounds that the Complaint fails to state a cause of action against him. Defendant the Archdiocese of New York ( Archdiocese ) also submits this memorandum of law in support of its motion, pursuant to CPLR 3211(a)(7), to dismiss the Complaint s Fifth Cause of Action for allegedly aiding and abetting under the New York City Administrative Code 8-107(6) and the Sixth Cause of Action for defamation, on the grounds that the Complaint fails to state such causes of action. Moreover, Defendants St. Josephs by the Sea High School ( SJS High School ), Robert Richard ( Richard ), and Greg Manos ( Manos ) 1 also move, pursuant to CPLR 3211(a)(7), to dismiss the Sixth Cause of Action for defamation, on the same grounds. PRELIMINARY STATEMENT Plaintiffs Complaint seeks to hold Cardinal Dolan liable for the allegedly discriminatory conduct of Father Michael P. Reilly ( Father Reilly ) and Defendants Richard and Manos, who are employed by SJS High School as the Principal, Vice Principal, and Dean of Men respectively. Yet the Complaint fails to plead facts establishing liability against Cardinal Dolan. For instance, while the Complaint conclusorily asserts that Cardinal Dolan control[s] SJS High School, and is the Individual Defendants supervisor and employer, such bare legal conclusions are legally inadequate to impose liability. 1 Richard and Manos, together with co-defendant Father Michael P. Reilly, are collectively referred to herein as the Individual Defendants. 1 5 of 19

6 As an individual, Cardinal Dolan could only be liable for another s discriminatory conduct if he (i) actually participated in the alleged discrimination, (ii) has an ownership interest in Plaintiffs employer SJS High School, or (iii) has the power to actually make personnel decisions at SJS High School. The Complaint, however, contains no allegations whatsoever tending to show that Cardinal Dolan fits into any of these three categories. The discrimination based claims asserted against him should therefore be dismissed. The Complaint also alleges that Cardinal Dolan and the Archdiocese aided and abetted the Individual Defendants claimed discriminatory conduct, and are therefore themselves liable under the New York City Human Rights Law. This claim fails as a matter of law because Plaintiffs do not allege a single fact that demonstrates that either Cardinal Dolan or the Archdiocese participated in any of the alleged discriminatory conduct. As a result, this claim should also be dismissed. The Complaint also purports to assert a claim against all Defendants for defamation. In the first place, the Complaint does not assert that any alleged defamatory statements were made by either Cardinal Dolan or Defendant Richard. The defamation claim should therefore be dismissed to the extent it is asserted against them. The defamation claim should also be dismissed as asserted against Defendants Manos, because of his alleged defamatory memorandum, and the Archdiocese, on account of an alleged different memorandum, because the Complaint does not allege that either memorandum contained any false statement of fact. Rather, the Complaint alleges Manos, in reporting Boliak s conduct, stated that Plaintiff Boliak should not be permitted to work with children, and that an unidentified employee of the Archdiocese stated that Boliak should be removed 2 6 of 19

7 from his position and excluded from any further contact with minors. These statements are nothing more than mere opinion, which is legally insufficient to support a claim for defamation. A. The Parties BACKGROUND Plaintiffs Boliak, Smith, and Rodes are current employees of Defendant SJS High School, which is located in Richmond County. ( 6-10, ) 2 Defendant Father Reilly is the Principal of SJS High School. Defendants Richard and Manos, are the Vice-Principal and Dean of Men respectively. ( 11-12, ) The Archdiocese is a Roman Catholic Archdiocese in New York State, and encompasses the boroughs of Manhattan, the Bronx, Staten Island, and several New York State Counties, including Richmond, Dutchess, Orange, Westchester and Putnam Counties. ( 19.) Cardinal Dolan is the Archbishop of the Archdiocese. ( 21.) Although the Complaint conclusorily asserts that Cardinal Dolan control[s] SJS High School, and supervise[s], control[s] and employ[s] the Individual Defendants, the Complaint pleads no facts whatsoever that support those allegations. ( ) In fact, the Complaint contains no allegations that Cardinal Dolan has an ownership interest in SJS High School, or the authority to effectuate any decisions regarding the terms and conditions of employment at SJS High School. B. The First Through Third Causes Of Action Purport To Assert Claims For Gender Discrimination, Age Discrimination, and Retaliation Against the Individual Defendants The Complaint alleges that Father Reilly is rude and makes crude and inappropriate remarks. ( 32.) According to Plaintiffs, Father Reilly allegedly curses in 2 All references to refer to the numbered paragraphs in the Complaint. For purposes of this motion only, all well-pled factual allegations contained in the Complaint are presumed to be true. 3 7 of 19

8 almost every sentence, uses offensive epithets, and has made derogatory remarks about women, homosexuals, elderly people, African Americans, disabled people, and people suffering from cancer. ( ) The Complaint also alleges in conclusory fashion that Defendants Richard and Manos have made similar discriminatory comments against women and older staff members at SJS High School. ( 41; see also 36, ) The Complaint does not, however, attribute any offensive remarks or discriminatory conduct whatsoever to either Cardinal Dolan or anyone employed by the Archdiocese. Plaintiffs allege that in December 2015, Plaintiffs Rodes and Boliak met with the Superintendent for Schools of the Archdiocese and protested Father Reilly s alleged discriminatory conduct and language. ( 45.) Although there is no allegation that Cardinal Dolan was ever made aware of Father Reilly s alleged conduct, the Complaint alleges that neither Cardinal Dolan nor the Archdiocese took any action. ( 46.) Plaintiffs claim that, as a result of Boliak and Rodes s complaint, they have each received unwarranted downgraded evaluations authored by the Individual Defendants and experienced express hostility, however there is no allegation that the Individual Defendants were ever made aware of the alleged meeting. ( 48, 87.) In the First Cause of Action, Plaintiff Smith alleges that the Individual Defendants coarse, sexist, demeaning language on an ongoing basis, directed against females, created a hostile work environment under the New York City Human Rights Law and the New York State Human Rights Law. ( ) In the Second Cause of Action, all Plaintiffs allege that the actions of the [Individual] Defendants constitute an illicit campaign of discrimination and creation of a hostile 4 8 of 19

9 work environment against themselves as older teachers, who Defendants were attempting to force out of this system in violation of the New York City Human Rights Law. ( ) And in the Third Cause of Action, Plaintiffs allege that Defendants unwarranted downgrading of Plaintiffs evaluations, [and] their express hostility to Plaintiffs makes it more difficult for Plaintiffs to perform their duties, and constitutes retaliation for Plaintiffs protests against the Defendants discriminatory language and behavior. ( 87.) C. The Complaint Purports To Hold The Archdiocese And Cardinal Dolan Liable For the Alleged Conduct of the Individual Defendants, But Pleads No Facts To Support Such Liability The Fourth and Fifth Causes of Action purport to assert claims against the Archdiocese and Cardinal Dolan personally, based on the facts alleged in the First, Second and Third Causes of Action. ( ) The Fourth Cause of Action alleges that the Archdiocese and Cardinal Dolan are responsible for the Individual Defendants alleged discriminatory and retaliatory behavior as their supervisors. ( 91.) The Fifth Cause of Action alleges that the Archdiocese and Cardinal Dolan are responsible for the Individual Defendants alleged discriminatory and retaliatory behavior as aiders and abettors. But the Complaint contains no allegations whatsoever explaining what supervisory power Cardinal Dolan allegedly exercises over any of the Individual Defendants, or how the Archdiocese or Cardinal Dolan allegedly aided and abetted, or otherwise participated in, the Individual Defendants alleged discriminatory conduct. D. Plaintiffs Purport to Assert A Claim For Defamation In Connection With An Incident In Which Boliak Admits That He Grabbed The Pants Of A Young Man The Sixth Cause of Action ( 94-97) purports to assert a claim for defamation against all Defendants based on the following allegations. 5 9 of 19

10 Sometime in October 2015, Plaintiff Boliak found himself in his office with four young men who were speaking about their experiences in high school. ( 49.) Two of these young men had graduated the year before and were discussing the difference between college and high school. (Id.) The Complaint alleges that Defendant Manos entered the office and started screaming for the graduates to get out. ( 50.) Plaintiffs assert that [t]empers flared and one of the graduates appeared to be about to physically challenge Defendant Manos. ( 51.) Plaintiff Boliak claims that he reached out for the boy s shirt as a signal for him to calm down, but missed the shirt, and grabbed the edge of the boy s gym shorts. ( ) Within a few days of this incident, Plaintiff Boliak was ordered up to Father Reilly s office, where Father Reilly allegedly called Boliak a pedophile. ( 56.) Following this meeting, Defendant Manos allegedly prepared a memorandum describing the incident that stated, THIS MAN SHOULD NEVER BE ALLOWED TO BE AROUND CHILDREN. ( 60.) The Complaint alleges that Defendant Manos published this memo to others at SJS High School, but does not allege when it was supposedly published or specifically to whom. ( 62.) The Complaint also alleges that the Archdiocese subsequently prepared a memorandum stating that Mr. Boliak should be removed from his position and excluded from any further contact with minors. ( 65.) The Complaint alleges that this memorandum was published to Archdiocese staff other than its author and to both administrators and staff of SJS High School. ( 66.) Like Mr. Manos s alleged memo, the Complaint does not allege when the Archdiocese s alleged memo was allegedly published or specifically to whom. There is no allegation whatsoever that Cardinal Dolan or Defendant Richard made any defamatory remarks whatsoever, which, of course, they did not of 19

11 ARGUMENT A motion to dismiss under CPLR 3211(a)(7) will be granted where as here, the allegations consist of bare legal conclusions. Ullmann v. Norma Kamali, Inc., 207 A.D.2d 691, 692 (1st Dep t 1994). When assessing a motion to dismiss, the facts pleaded are presumed to be true and are accorded every favorable inference. Id. However, the allegations of the pleading cannot be vague and conclusory and must include specific allegations of the alleged misconduct. See CPLR 3013; Fowler v. Am. Lawyer Media, Inc., 306 A.D.2d 113, 113 (1st Dep t 2003); Berardi v. Berardi, 108 A.D.3d 406, 406 (1st Dep t 2013); Phillips v. Trommel Constr., 101 A.D.3d 1097, 1098 (2d Dep t 2012). Plaintiffs cannot rely on conclusory allegations that fail to give sufficiently particular notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action. 117 East 24th Street Associates v. Karr, 95 A.D.2d 735, 735(1st Dep t 1983) (quoting CPLR 3013); accord Liu v. New York City Police Dep t, 216 A.D.2d 67, 70 (1st Dep t 1995). As explained below, the defamation claim is legally insufficient to state a claim as to any of Defendant. And the allegations asserting liability against Cardinal Dolan as an employer, as well as the claims asserted against Cardinal Dolan and the Archdiocese for allegedly aiding and abetting the Individual Defendants purportedly discriminatory conduct, consist of nothing more than bare legal conclusions, warranting dismissal. I. THE COURT SHOULD DISMISS THE DEFAMATION CLAIM BECAUSE THE STATEMENTS AT ISSUE CONSTITUTE NON-ACTIONABLE OPINION Plaintiffs Sixth Cause of Action for defamation (as asserted against all Defendants other than Father Reilly) appears to be based on statements by (i) Defendant Manos, who allegedly wrote in a memorandum that Plaintiff Boliak should never be allowed to be 7 11 of 19

12 around children, and (ii) an unidentified representative of the Archdiocese, who allegedly wrote in a memorandum that Mr. Boliak should be removed from his position and excluded from any contact with minors. ( 60, 65.) Other than these memoranda, the Complaint does not identify any specific statement by Defendants Manos or the Archdiocese that Plaintiffs contend are defamatory. The Complaint does not attribute any allegedly defamatory statement to either Defendant Cardinal Dolan or Richard. At a minimum, the Court should dismiss the defamation claim against each of them. The defamation claim should also be dismissed as asserted against Defendant Manos and the Archdiocese allegedly based on their respective memoranda. The alleged statements in the memoranda are nothing more than non-actionable opinion. 3 A claim for defamation must allege a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. O Neill v. New York Univ., 97 A.D.3d 199, 212 (1st Dep t 2012) (internal quotations omitted). Moreover, plaintiffs must plead the alleged words of the defamation with sufficient particularity and [t]he complaint also must allege the time, place and manner of the false statement and specify to whom it was made. Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dep t 1999); accord Naderi v. N. Shore-Long Island Jewish Health Sys., 135 A.D.3d 619, 620 (1st Dep t 2016); Rosenberg v. Home Box Off., Inc., 33 A.D.3d 550, 550 (1st Dep t 2006); CPLR 3016(a). 3 SJS High School s liability for defamation depends entirely on whether it is vicariously liable for the alleged defamatory statements of any of the Individual Defendants. Thus, if the defamation claim as asserted against Father Reilly, Richard, and Manos is dismissed, the claim must also be dismissed as asserted against SJS High School. As explained herein, the Complaint indeed fails to adequately allege a defamation claim against Defendants Richard, and Manos, and Father Reilly has filed a separate motion to dismiss the claim asserted against him. Accordingly, the defamation claim should be dismissed to the extent that it is asserted against SJS High School of 19

13 It is settled that [e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. Mann v. Abel, 10 N.Y.3d 271, 276 (2008). Indeed, a statement that merely expressed opinion is not actionable as defamation no matter how vituperative or unreasonable it may be. D Agostino v. Gould, 158 A.D.2d 577, 578 (2d Dep t 1990). In considering whether allegedly defamatory statements are deemed non-actionable opinion, courts consider the following factors: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are sign as to signal readers or listeners that what is being read or heard is likely to be an opinion, not fact. Mann, 10 N.Y.3d at 276; accord Sabharwal & Finkel, LLC v. Sorrell, 117 A.D.3d 437, (1st Dep t 2014); Pecile v. Titan Capital Grp., LLC, 96 A.D.3d 543, 544 (1st Dep t 2012); Silverman v. Daily News, L.P., 129 A.D.3d 1054, 1055 (2d Dep t 2015). The distinction between actionable fact and nonactionable opinion is a question of law and must be answered on the basis of what the reasonable listener would understand the statement to mean, first considering the context of the whole communication, including its tone and purpose. See Frechtman v. Gutterman, 115 A.D.3d 102, (1st Dep t 2014); Int l Pub. Concepts, LLC v. Locatelli, No /2013, 46 Misc. 3d 1213(A), *4-6 (N.Y. Sup. Ct. Jan. 15, 2015); see also Panghat v. New York Downtown Hosp., 85 A.D.3d 473, 474 (1st Dep t 2011). Here, the alleged statements by (i) Defendant Manos that Mr. Boliak should never be allowed to be around children and (ii) an unidentified Archdiocese representative who wrote that Mr. Boliak should be removed from his position and excluded from any contact with 9 13 of 19

14 minors, ( 60, 64,) plainly constitute non-actionable opinion. Given the context in which the memoranda were allegedly written, namely providing views on Plaintiff Boliak s qualifications as a teacher, any reasonable reader would conclude that the alleged statements in these memoranda were mere opinions and not facts that are capable of being proven true or false. The statements are therefore legally insufficient to support a claim for defamation, and the claim should be dismissed to the extent that it is asserted against Defendant Manos and the Archdiocese. II. THE FOURTH CAUSE OF ACTION AGAINST CARDINAL DOLAN SHOULD BE DISMISSED In the Fourth Cause of Action, in a misguided and unjustified effort to extend liability beyond Plaintiffs direct employer, SJS High School (or the School ), Plaintiffs baldly assert that the Archdiocese and Cardinal Dolan are responsible for the Individual Defendants allegedly discriminatory and retaliatory behavior as their supervisors. ( ) According to the Complaint, the Archdiocese and Cardinal Dolan control SJS High School (they do not) and are the Individual Defendants employers. (They are not.) ( 4, 24.) These conclusory assertions, especially as to Cardinal Dolan, are unsupported by any facts and constitute nothing more than bare legal conclusions that are legally insufficient to impose liability. 4 CPLR 3013; Ullmann, 207 A.D.2d at 692; Rabos, 100 A.D.3d at 851; Fowler, 306 A.D.2d at 113; Berardi, 108 A.D.3d at 406; Phillips, 101 A.D.3d at 1098; Karr, 95 A.D.2d at 735; Liu, 216 A.D.2d at 70. Although the Complaint asserts that Cardinal Dolan is liable for the alleged discriminatory acts of the Individual Defendants because he is allegedly their supervisor, it is settled that under the New York State Human Rights Law ( NYSHRL ) and the New York City 4 Although, the Archdiocese is not presently moving to dismiss the Fourth Cause Action, as asserted against it, the Archdiocese does not concede, and in fact disputes, that that it was a supervisor or employer of the Individual Defendants of 19

15 Human Rights Law ( NYCHRL ) that an individual supervisor or corporate employee may only be liable for the discriminatory conduct of others, if the supervisor actually participate[s] in the alleged conduct. See N.Y. Exec. Law 296(6); Mitra v. State Bank of India, No. 03 Civ. 6331, 2005 U.S. Dist. LEXIS 19138, *11-12 (S.D.N.Y. Sept. 6, 2005) (citing Smith v. AVSC Int l, Inc., 148 F. Supp. 2d 302, 308 (S.D.N.Y. 2001); Stallings v. U.S. Elec., Inc., 270 A.D. 2d 188 (1st Dep t 2000); Feingold v. New York, 366 F. 3d. 138, 158 (2d Cir. 2004)). Here, there is no allegation, (nor could there be) that Cardinal Dolan actually participated in the Individual Defendants alleged discriminatory acts. At most, the Complaint alleges that Cardinal Dolan failed to take any action with respect to the alleged conduct, but the Complaint does not allege that he even knew about it. Accordingly, the Complaint does not adequately plead that Cardinal Dolan may be liable as a supervisor. Although the Complaint asserts that Cardinal Dolan is the Individual Defendants employer, that allegation alone is legally insufficient. 5 The NYCHRL does allow direct liability against an employer or an employee or agent thereof who engages in discrimination. 5 Under, NYCHRL 8-107(13)(b), [a]n employer [may] be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent... only where: (1) The employee or agent exercised managerial or supervisory responsibility; or (2) The employer knew of the employee s or agent s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee s or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or (3) The employer should have known of the employee s or agent s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct. NYC Admin. Code 8-107(13)(b) of 19

16 NYC Admin. Code 8-107(1)(a). If a plaintiff establishes that a defendant is directly liable under the NYSHRL, then that defendant may also be held directly liable under the NYCHRL. See Makinen v. City of New York, No. 11-cv-07535, 2016 U.S. Dist. LEXIS 25045, *20 (S.D.N.Y. Feb. 29, 2016) (citing Burhans v. Lopez, 24 F. Supp. 3d 375, 386 (SDNY 2014)). Under the NYSHRL, an individual is properly subject to liability for discrimination when that individual qualifies as an employer. Id. (quoting Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 57 (2d Cir. 2012); see also N.Y. Exec. Law 296(1)). An individual qualifies as an employer when that individual has an ownership interest in the relevant organization or the power to do more than carry out personnel decisions made by others. Makinen, 2016 U.S. Dist. LEXIS at *20-21 (quoting Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984) (per curiam)). In Mitra, for example, the plaintiff was terminated from her job as deputy manager at a bank U.S. Dist. LEXIS 19138, at *5. She asserted claims against the bank, as well as two bank managers, for discrimination under the NYSHRL and the NYCHRL. Id. at *6. The complaint, however, did not allege that the individual managers actually participated in the discrimination, or that, at the time of the alleged discrimination against plaintiff [the individual defendants] had ownership interests in [the Plaintiff s corporate employer] or had the authority to make the relevant personnel decisions on their own. Id. at *13. The court held that the plaintiff s failure to allege any facts tending to show that the individual defendants fit into any of these three categories precluded liability, and dismissed the discrimination claims against them. Id. at * In doing so, the court noted that the fact that [the individual defendants] held the positions of Country Head and Branch Head does not, by itself, establish either of these prerequisites to individual NYSHRL and NYCHRL liability. Id. at * of 19

17 The same result is warranted here. Although Plaintiffs Complaint contains conclusory allegations that Cardinal Dolan is Plaintiffs employer, ( 4,) it does not contain any allegations whatsoever that Cardinal Dolan has any ownership interest in SJS High School, or authority to make personnel decisions or otherwise assert any direct control over the day-today operations of the School. In fact, to the contrary, the Plaintiffs concede that SJS High School not Cardinal Dolan or the Archdiocese operate the School on a day-to-day basis, and is Plaintiffs direct employer. ( ) 6 Accordingly, the Complaint fails to adequately state a claim that Cardinal Dolan is directly liable as a supervisor or an employer under the NYSHRL or the NYCHRL, and the Fourth Cause of Action against him must be dismissed. III. THE FIFTH CAUSE OF ACTION AGAINST CARDINAL DOLAN AND THE ARCHDIOCESE FOR AIDING AND ABETTING SHOULD BE DISMISSED, BECAUSE THERE ARE NO ALLEGATIONS THAT THEY ACTUALLY PARTICIPATED IN THE ALLEGED DISCRIMINATORY CONDUCT The Fifth Cause of Action asserted against Cardinal Dolan and the Archdiocese alleges that they are liable under the NYCHRL as aiders and abettors for the Individual Defendants alleged discriminatory and retaliatory behavior. ( 93.) However, the Complaint does not adequately allege aider and abettor liability under the NYCHRL because it does not plead that they actually participated in any discriminatory conduct. The NYCHRL provides for individual liability for persons who aid, abet, incite, compel, or coerce the doing of any of the acts forbidden [thereunder], or attempt to do so. N.Y.C. Admin. Code 8-107(6). An individual defendant may be held liable under the aiding and abetting provision of the [NYCHRL] if he actually participates in the conduct giving rise to 6 Although the Complaint asserts that Cardinal Dolan appointed Father Reilly as Principal, that appointment is purely canonical and arises from Father Reilly s status as a priest within the Archdiocese and has no bearing on Cardinal Dolan s authority to make day-to-day decisions regarding the Individual Defendants employment of 19

18 a discrimination claim. Makinen, 2016 U.S. Dist. LEXIS 25045, at *18-19 (quoting Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011)); see also Feingold, 366 F.3d at 157 (applying the same standards to evaluate aiding and abetting claims under the NYSHRL and the NYCHRL). [A]ider-and-abettor liability [under NYCHRL] may extend to supervisors who failed to investigate or take appropriate remedial measures despite being informed about the existence of alleged discriminatory conduct. Morgan v. NYS AG Office, No. 11 Civ. 9389, 2013 U.S. Dist. LEXIS 17458, *13 (S.D.N.Y. Feb. 08, 2013) (citing Feingold, 366 F.3d at ; Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376, 384 (S.D.N.Y. 1999)). Here, Plaintiffs fail to allege that Cardinal Dolan or the Archdiocese did anything to actually participate in the Individual Defendants alleged discriminatory actions. And although the Complaint pleads that Cardinal Dolan and the Archdioceses failed to take action after knowledge of the acts of discrimination [and] retaliation, ( 4, 46,) these allegations cannot result in liability because, as explained above, there is no allegation that either Cardinal Dolan knew about such complaint, or that the Archdiocese had any power to discipline the Individual Defendants or otherwise prevent their alleged conduct. Accordingly, the Fifth Cause of Action for aiding and abetting must be dismissed of 19

19 CONCLUSION For the foregoing reasons, the Court should grant the Motion, and dismiss (i) all claims asserted in the Complaint against Defendant Cardinal Dolan, (ii) the Fifth and Sixth Causes of Action as asserted against Defendant the Archdiocese, and (iii) the Sixth Cause of Action as asserted against Defendants SJS High School, Richard and Manos, and grant any other such further relief that it deems just and proper. DATED: New York, New York September 2, 2016 KELLEY DRYE & WARREN LLP By: /s/ David Zalman John M. Callagy David Zalman Monica Hanna 101 Park Avenue New York, NY (212) (212) (fax) Attorneys for Defendants Cardinal Timothy Dolan, the Archdiocese of New York, St. Joseph by the Sea High School, Robert Richard, and Greg Manos of 19