Court rejects bid to expand Charney case

In a ruling filed on September 28, 2007, New York Supreme Court Justice Bernard Fried rejected an attempt by gay attorney Aaron Brett Charney to expand his lawsuit against Sullivan & Cromwell, his former employer, to add common law tort and conspiracy charges to the discrimination and retaliation charges contained in his original complaint.  Granting a motion to dismiss the additional claims, Justsice Fried found that the intentional infliction of emotional distress claim was essentially subsumed within Charney's claims for violation of the New York City Human Rights Law, which authorizes compensation for emotional distress caused by discrimination, and that there is no independent tort of conspiracy to violate the Human Rights Law recognized by New York courts.  See Charney v. Sullivan & Cromwell, 2007 Westlaw 2822423 (N.Y.Sup.Ct., N.Y.Co., Sept. 27, 2007).

However, Fried rejected S&C's demand that he strike numerous paragraphs from Charney's amended complaint that referred to events occurring after the first complaint was filed.  S&C argued that the events following on the filing of the complaint were irrelevant and prejudicial, but Fried was not willing to go that far in characterizing them.   Fried did, however, agree to strike a few paragraphs that quoted testimony from the deposition of Gera Grinberg, on the ground that Fried had previously ordered that Grinberg's testimony be held confidential by the attorneys and not made public unless a party applied to the court for specific permission to do so, which Charney's lawyers had not done.

So, what does all this mean?  I'm not entirely sure.  Charney's lawyers had sought in their amended complaint to expand the suit specifically to call S&C to account for the scorched earth approach they took to try to get Charney to withdraw his case.  They alleged that S&C deliberately tried to scare Charney into backing down from his original claims of sexual orientation discrimination and retaliation, and had conspired with Edward Gallion, an attorney the firm retained to represent then-associate Grinberg, who was put on administrative leave and is no longer associated with the firm, to cover up the scare tactics by destroying Grinberg's notes of a meeting he and Gallion attended together with Charney (then unrepresented) and some S&C attorneys.  Charney's amended complaint charged that Gallion was a bit of a double agent, supposedly representing Grinberg while actually collaborating with S&C, at a time when the interests of S&C and his client were potentially adverse.  (From comments dropped during a public hearing in the case last spring, it was inferred that a disciplinary complaint may have been filed against Gallion for this possible conflict of interest.) 

I had thought that these additional claims were separate and distinct from the NYC HRL claims, as relating to the activities of S&C and Gallion in reaction to the lawsuit rather than to S&C's treatment of Charney as an employee.  That is, the HRL claims related to what happened before Charney filed his original lawsuit.  The intentional infliction of emotional distress claim was addressed to the tactics that S&C then used after the lawsuit was filed to try to pressure Charney to back down, and the conspiracy claim was specifically aimed at the enlistment of attorney Gallion to add to the pressure and sidetrack Grinberg from allying himself with Charney.   Does Fried's action in dismissing these additional legal claims but refusing to strike almost all the factual allegation paragraphs of the complaint that specifically relate to them mean that he believes the events that came after the first complaint are now part of the overall case under the city Human Rights Law?  If so, then Charney has lost nothing by this dismissal order, and the judge has at least implicitly ratified the idea that S&C's response to his complaint becomes part of the retaliation case, at the very least.  Perhaps this relates to the fact that S&C did not discharge Charney until the day after the celebrated meeting that is recounted in the contested paragraphs of the amended complaint, so technically his complaint of employment discrimination can be held to cover all events prior to the date of his discharge (which was also the date S&C filed its own countersuit against Charney).  All speculation on my part, trying to rationalize the dismissal of the new claims together with the retention of the factual allegations underpinning those claims.

So, as before, this continues to be a complicated case.  Supposedly discovery has been going on over the past several months, and it was reported on one blog that there was a status conference of some sort with the judge and the attorneys during September, but it has been months since there were any "public" developments in the case, so Fried's September 28 order serves to keep the matter in the public eye -- or at least the blogosphere.