In Higgins v. Gladstone Gallery LLC, No. 150934/2022, 2023 WL 1961164, 2023 N.Y. Slip Op. 30436(U) (N.Y. Sup Ct, New York County Feb. 10, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of retaliation under the New York State and City Human Rights Laws.
As to plaintiff’s state law claim, the court explained:
After careful consideration, the Court denies the motion as it relates to this claim. First, the Court notes that plaintiff has not alleged constructive discharge as a separate cause of action. Instead, she states that it is one of the numerous adverse impacts of defendants’ alleged retaliation. In their arguments, defendants consider plaintiff’s complaints separately rather than in their entirety to determine whether she has stated a claim. Collectively, plaintiff has described a course of conduct that, if true, may be considered retaliatory. For example, the Second Department in Mitchell v TAM Equities, Inc. (27 AD3d 703 [2d Dept 2006]), found that the plaintiff asserted valid claims for retaliation and for constructive discharge by asserting that:
“after she protested the offensive conduct to her supervisors, certain of those supervisors retaliated against her by, among other things, arbitrarily reprimanding her. personally berating her in front of her subordinates, refusing to permit her normal lunch and personal breaks during long work[-]days, and compelling her to return to work against medical advice after an injury, all of which further compelled her to leave her employment.”
Here, too, plaintiff alleges that she was reprimanded without reason and berated in front of her subordinates. She also states that Gladstone physically assaulted her and that defendants excluded her from meetings that were related to her job at the Gallery. She describes this as part of a continuous course of conduct. Whether the conduct rises to the degree necessary for the claim to survive summary judgment or a trial, of course, raises a separate issue not appropriate for review under CPLR § 3211 (7). Similarly, the fact that plaintiff contends that Gladstone treated her poorly before the retaliation occurred is not enough to defeat the claim at this point in the litigation. Instead, it may raise issues of fact.
Since plaintiff’s claim survived dismissal under the state law, it necessarily survived under the city law, which is broader in scope.