In Arizzo v. Ethicon, Inc., No. 159122/2023, 2025 WL 1047066 (N.Y. Sup Ct, New York County Apr. 03, 2025), the court denied plaintiff’s motion to amend their complaint to add hostile work environment claims under the New York State and City Human Rights Laws against a proposed defendant (Ethicon US).
In sum, the court held that these statutes are inapplicable to said entity. From the decision:
Parties do not dispute that (1) Ethicon US is a Texas limited liability company with its principal place of business in New Jersey (NYSCEF doc. no. 24, NY Dept. of State, Division of Corporation record), (2) it does not have a worksite or office within New York (but instead transacts within the State by sending representatives to provide services to other companies, some of whom have offices in New York), and (3) plaintiff, a New Jersey resident, was employed by Ethicon US in New Jersey.
Based on the above, Ethicon US contends that, even if the Court has personal jurisdiction through New York’s long-arm statute (CPLR 302), the NYSHRL and NYCHRL are inapplicable to it, as a New Jersey employer of a New Jersey resident. The Court agrees. First, CPLR 302 and New York Executive Law § 292 are not coextensive and define their respective covered entities differently. Under CPLR 302, a court’s personal jurisdiction extends, in relevant part, to those who “(1) transact[] any business within the state or contract[] anywhere to supply goods or services in the state; or (2) commit[] a tortious act within the state.” (CPLR 302 [1].) Meanwhile, Exec. Law § 292 (5) defines the term “employer” to “include all employers within the state.” (NY Exec. Law § 292 [5].) Thus, for example, with Exec. Law § 296, which prohibits an employer from discriminating on the basis of age, race, gender, etc., the statute applies to those employers “within the state,” not to all employers that transact, contract, or commit a tort in state. Accordingly, from their plain language, the two statutes leave open the possibility for the Court to have long-arm jurisdiction over an employer like Ethicon US but, at the same time, because it is a non-domiciliary and subject to the laws of a different state, that same employer is not subject to the State and City HRLs. Here, Ethicon US has established, through the documentary evidence cited above (i.e., Ethicon’s Dept. of State, Division of Corporation record, the W-4 form, and its unemployment insurance taxes) that it is not an employer within the meaning of the NYSHRL and NYCHRL.
The cases plaintiff cites in support of finding the Human Rights Laws applicable to Ethicon US are all, in some way, in inapposite. In Iwankow v Mobil Corp. (150 AD2d 272 [1st Dept 1989]), the plaintiff asserted causes of action under the Human Rights Law for age-based discrimination but against two New York corporations. Here, this matter concerns a non-resident employer and a non-resident employee. Even so, the First Department dismissed the claims for lack of subject matter jurisdiction (and not based on the applicability of the statute itself)2, as there were no allegations that the offending conduct took place in New York. Thus, the holding–that courts lack subject matter jurisdiction where there are no allegations of discriminatory conduct in New York and no New York resident was discriminated against–does not address whether the Human Rights Law applies to Ethicon as an employer. The same goes for Benham v eCommission Solutions, LLC (118 AD3d 605, 606 [1st Dept 2014]): the First Department found a lack of subject matter jurisdiction where the allegations of sexual harassment occurred outside New York and against a non-resident. And in Matter of Walston & Co. v New York City Commn. on Human Rights (41 AD2d 238 [1st Dept 1973]), which Iwankow cited, the defendant brokerage firm had an office in New York City that was allegedly the site of the discriminatory conduct against the plaintiff, an out-of-state resident. Instead of proffering a reason why the Court could plausibly consider Ethicon US an entity within the ambit of the HRLs, plaintiff merely asserts that the Court has jurisdiction based on the time and place of the sexual harassment and the impact of discrimination in New York City. Neither suffice.
[Citations omitted.]
Having concluded that Ethicon US has demonstrated it is not an entity subject to the NYSHRL or the NYCHRL, it declined to address other grounds raised for dismissal, such as whether plaintiff failed to use an employee dispute resolution program before commencing this suit and whether plaintiff’s motion to amend was procedurally a proper vehicle to oppose defendant’s motion to dismiss.