Employment Discrimination/Hostile Work Environment Counterclaim Allegations Fit Within Legal Theory, But Responding Party Was Entitled to More Definite Statement

In Wikked Entertainment, Inc. v. Burbacki, No. 652352/2018, 2019 WL 3854921, 2019 N.Y. Slip Op. 32440(U) (N.Y. Sup Ct, New York County Aug. 16, 2019), the court, inter alia, held that the facts as alleged, taken as true, fit within a theory of recovery (in the nature of employment discrimination / hostile work environment), but that the responding party – here, the allegations at issue were pled by the defendant, in the form of a counterclaim – was entitled to a “more definite statement” of those claims.

The court explained:

The counterclaim alleges that the defendants were constantly required to work with Ms. Stolper and further alleges that they were required to perform “thousands of hours” of “personal work” for Ms. Stolper (Counterclaim, ¶¶ 126, 178, 180, 181). The facts alleged in the complaint are, among other things, that (i) “Plaintiff would constantly yell obscenities including but not limited to calling colleagues or staff ‘white dog shit,’ ‘fucking Israelis,’ ‘fucking Jews,’ ‘Armenian terrorist,’ ‘Armenian whore,’ often using the N-word, homophobic slurs and other such vulgar and disgusting insults”; (ii) “Plaintiff on several occasions would grab the genitals of staff members, male and female, including Defendant and YONATAN, mocking them in front of other colleagues and laughing at her own perverse jokes”; (iii) “Plaintiff also repeatedly pulled down her tank tops to reveal one or both of her breasts and ask the staff, including Defendant and YONATAN, if the surgeon did a ‘good job’ ”; (iv) after summoning the defendants to her hotel room, “Plaintiff then took a towel, threw it on the floor, spread her legs and started urinating on the floor” in front of the defendants; (v) “On another occasion, Plaintiff tackled one of the assistants to the ground and began urinating on her in the presence of Defendant and YONATAN, while laughing to the point where she ‘couldn’t breathe’; (vi) “Plaintiff would constantly make crude comments about male genitalia in Defendant and YONATAN’s presence, and specifically make such comments to **3 YONATAN, whom Plaintiff would refer to as her ‘day husband’ ” (Counterclaim ¶¶ 124-159). The counterclaim alleges that the “Plaintiff’s behavior in the workplace was perverse, pervasive, and severe” (id., ¶ 127). Taking the allegations as true, this conduct fits within a cognizable legal theory for recovery.

The court noted, however, that “[a]s pled, it is not clear which legal theory the defendants are pursuing”, and therefore granted defendant’s motion for a more definite statement pursuant to CPLR 3024.