Charney Accuses Sullivan & Cromwell of "grandstanding" in pending dismissal motion

Lawyers for gay attorney Aaron Brett Charney accused Sullivan & Cromwell of filing its recent dismissal motion in Charney’s pending case against the firm in order to delay having to file an answer under oath in the case, in a memorandum filed with New York County Supreme Court on July 13 in opposition to the dismissal motion.

Charney is suing S&C for discrimination and retaliation in violation of the New York City Human Rights Law, as well as conspiracy and intentional infliction of emotional distress, the later claims having been added in his amended complaint. S&C’s motion is directed to the amended complaint, and specifically seeks dismissal of the new claims. In a prior ruling, Supreme Court Justice Bernard J. Fried had dismissed Charney’s first complaint without prejudice, having found, in effect, that Charney had alleged facts arguably sufficient to support legal claims of discrimination and retaliation but that the first complaint included extraneous and possibly prejudicial matter that should be excluded from an amended complaint.

Charney was fired on February 1, after working about four years as an associate attorney at S&C. Charney, who was not openly gay when employed there, claimed to have been subjected to homophobic harassment by a partner in the firm, and then to have been the subject of retaliation when he complained about the harassment (and incidentally "came out") to a senior partner who had administrative responsibilities for handling internal grievances. Charney filed his first lawsuit on January 16.

In its motion to dismiss the new claims, S&C argued that a stand-alone claim for conspiracy was not permitted under New York law, and that the intentional infliction of emotional distress claim was improperly duplicative of Charney’s claims under the Human Rights Law. The new memo heatedly rejects both of these assertions, claiming, "In its motion papers, Sullivan once again attacks Charney to avoid scrutiny of its unlawful misconduct. Sullivan denigrates the legal process by making cavalier statements characterizing Charney’s lawsuit as ‘nothing more than an attempt to extort millions of dollars’ when Sullivan is aware of corroboration of the egregious discrimination and retaliation by its partners." The memo goes on to argue, "Defendant’s diatribe against Charney is evidence of Sullivan’s ongoing retaliatory effort to impugn Charney in order to deflect attention from its own wrongdoing."

Noting that the new motion to dismiss does not address Charney’s Human Rights Law claims, the memo argues that the new tort claims of conspiracy and intentional infliction of emotional distress "are wholly actionable as a matter of law, and Sullivan seeks their dismissal to delay the filing of a verified answer." Under procedural rules, S&C will have to file an answer to Charney’s complaint under oath, swearing to the truth of any factual assertions made in the answer, but does not have to answer until the court has ruled on its motion to dismiss.

Amplifying the argument that S&C’s strategy is to impugn Charney personally rather than to respond to his legal arguments, the memo asserts in a footnote that S&C’s memo in support of its motion "is rife with improper unsupported assertions and characterizations of Charney’s discrimination complaint." Speculating about S&C’s motives, the memo goes on to assert: "Sullivan is either attempting to bait plaintiff into an argument about issues not properly before this Court, or is inserting uncorroborated scurrilous accusations into the record in order to further its public relations campaign. Either way, the Court should disregard defendant’s grandstanding and focus on the legal arguments."

Focusing on those legal arguments, the memo argues that the civil conspiracy allegation is not attempting to assert an "independent tort" of conspiracy, but rather an agreement to violate the Human Rights Law and intentionally inflict emotional distress on Charney. "Here, Charney has detailed the conspiracy between Sullivan and [Edward] Gallion. Gallion, in furtherance of the conspiracy to intimidate and destroy Charney, and on direction from Sullivan partner Gandolfo V. DiBlasi, told Charney that Sullivan was commencing a ‘scorched earth campaign against Charney’ and that Sullivan would seek criminal and civil charges against Charney."

The memo goes on to detail again Charney’s allegations about how S&C responded to its failure to get Charney to drop his lawsuit by placing on administrative leave Gera Grinberg, the associate whose close working relationship with Charney had given rise to rumors among partners at S&C that the two associates had a romantic relationship, and by having Gallion destroy Grinberg’s hand-written notes of a January 31 settlement meeting. Grinberg’s notes, claims Charney, would back up his allegations about being threatened at the meeting and being directed to destroy the hard drive on his computer.

"The unmistakable conclusion," argues the memo, "is that Gallion, acting at Sullivan’s behest, was inextricably intertwined in the effort to ‘kill,’ ‘crush’ and ‘demolish’ Charney. Charney had dared to challenge Sullivan, a firm that (i) believes it can do no wrong, (ii) believes it is above the law, and (iii) brags about representing the Nazis." The memo asserts that these allegations are sufficient to support the conspiracy and emotional distress claims, and further argues that the emotional distress claim can, consistent with New York law, stand as a separate claim from the Human Rights Law claim.

In light of the discovery schedule that Justice Fried recently approved, it is likely he will try to rule quickly on the new motion to dismiss, since the scope of the discovery that is now scheduled to begin shortly would certainly be affected by whether Charney’s newer claims remain part of the case. S&C’s motion seems particularly focused on avoiding having to answer under oath questions relating to the conspiracy charges, or to subject its partners to deposition questioning about the January 31 meeting and its aftermath.