D'Annunzio v. Ayken, Inc.
876 F. Supp. 2d 211
E.D.N.Y2012Background
- Plaintiffs Lauren, Ashley, and Gabrielle D’Annunzio, former employees of Ayken, Inc. d/b/a Ayhan’s Fish Kebab Restaurant, allege sexual harassment and related claims against Ayken and manager Hassan under NYSHRL and Title VII; Gomez is alleged to be negligently supervising and failing to control premises.
- The alleged conduct included repeated inappropriate comments and unwanted touching by male employees; Gomez observed but did not stop it.
- In July 2008, Lauren D’Annunzio was sexually assaulted by a restaurant cook, Juan Pablo Orellano, who pled guilty to Attempted Sexual Abuse and was incarcerated; all three plaintiffs subsequently terminated.
- Plaintiffs filed an EEOC complaint in January 2009; the EEOC found reasonable cause that Lauren and Gabrielle were harassed and constructively discharged; Notices of Right to Sue issued in 2011.
- Defendants answered in October 2011 with six defamation counterclaims arising from Plaintiffs’ July 13, 2011 press conference and distribution of the Complaint to media; Newsday and News 12 published related articles.
- The court grants Plaintiffs’ motion to dismiss the defamation counterclaims under Rule 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements by Plaintiffs at a press conference and to media are absolutely privileged | D’Annunzio argues absolute privilege applies to statements in litigation | Defendants argue statements were within litigation scope | No absolute privilege for out-of-court statements. |
| Whether statements are protected by Section 74 Civil Rights Law | Statements constitute a fair and true report of judicial proceedings | Sections 74 protection does not apply to out-of-court statements | Statements are protected under Section 74.”},{ |
Key Cases Cited
- Long v. Marubeni Am. Corp., 406 F.Supp.2d 285 (S.D.N.Y. 2005) (out-of-court reports may be privileged under §74 if fair and true reports of proceedings)
- Williams v. Williams, 23 N.Y.2d 592 (N.Y. 1969) (Williams exception to §74 for malicious use of litigation is narrow)
- Bridge C.A.T. Scan Assocs. v. Ohio-Nuclear, Inc., 608 F.Supp. 1187 (S.D.N.Y. 1985) (delivery of a complaint to the press is not within absolute privilege)
- McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d 258 (1st Dep’t 2008) (statements restating complaint can be protected under §74)
- Procter & Gamble Co. v. Quality King Distribs., Inc., 974 F.Supp. 190 (E.D.N.Y. 1997) (§74 applies to out-of-court statements by a party)