Amanda Schmitt, Plaintiff-Appellant, v Artforum International Magazine, Inc., et al., Defendants-Respondents.
10080 159496/17
Appellate Division, First Department
December 26, 2019
2019 NY Slip Op 09352
Sweeny, J.P., Tom, Mazzarelli, Oing, Singh, JJ.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Clarick Gueron Reisbaum, New York (Emily Reisbaum of counsel), for appellant.
Proskauer Rose LLP, New York (Bettina B. Plevan of counsel), for Artforum International Magazine, Inc., respondent.
Littler Mendelson P.C., New York (Margaret L. Watson of counsel), for Knight Landesman, respondent.
Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered January 2, 2019, dismissing the complaint, pursuant to an order same court and Justice, entered Decеmber 24, 2018, which granted defendants’ motions to dismiss the complaint pursuant to
Plaintiff is a New York City curator and art fair director who began her career in 2009 at the age of 21 years, as a recent arrival
Plaintiff‘s complaint alleges an extended period of sexual harassment of plaintiff by defendant Landesman about which defendant Artforum became informed and allegedly acted adversely to her in the closely-knit commercial art world with consequences including reputational harm. Shortly after plaintiff‘s employment with Artforum commenced, Landesman, who was then in his late 50s, subjected her to uncomfortable sexual advances. This continued while she was employed by Artforum and, despite her pleas that Landesman end that conduct, continued for several years after she left Artforum until she filed this action. Plaintiff explained that this was her first office job, and that she did not know how to respond to Landesman‘s sexual advances or how to fight back. Since Landesman was her supervisor and she was aware of his power in the art world, she was afraid to confront him or to risk her position at Artforum. Hence, she concluded that she was forcеd to put up with the harassment. Plaintiff claims that it became apparent to her that Landesman‘s proclivities were known at Artforum since, when the subject arose, people often rolled their eyes and said, “[W]ell, that‘s just how Knight is.”
Plaintiff left Artforum in August 2012 but, she alleges, Landesman‘s unwanted attentions and communications to her did not end. Rather, they expanded in person and by emails that are included in the record. The nature of the harassment and Landesman‘s ongoing sexual overtures are amply supported by the record for purposes of
Artforum‘s influence was underscored for plaintiff when in December 2012 she was invited by Artforum to what the complaint characterizes as a prestigiоus dinner of insiders at an event in Miami where she participated as an exhibitor. At the time plaintiff no longer worked for Artforum. Landesman took the opportunity to email plaintiff again from an Artforum account with the subject line “Teacher*Student,” where he gushed, “Good to have you at our dinner in the Miami moonlight,” fantasized about a kiss, and urged her to “[g]ive yourself to me! ALL of you=to all of me, Our own deeply secret, deeply special, no boundaries, in friendship.” This email was of a kind with a history of prior emails, the explicit details of which are not necessary to reiterate in this decision.
Plaintiff alleges that she thereafter tried to keep her distance from Landesman. Nеvertheless, she felt that it was professionally necessary to attend an Artforum dinner, which was attended by artists, dealers and curators, at its, and Landesman‘s, invitation in March 2013. He perpetuated his sexual harassment, now in front of clients and potential employers, and afterward emailed her again from an Artforum account where he professed his enjoyment at being her “teacher,” but chided her with a “B- on your delivery to me.” Plaintiff alleges that while she was seeking new employment during 2013, Landesman, knowing that his goodwill and status at Artforum were critical, took advantage of the opportunity by sending numerous increasingly sexually explicit harassing emails and texts included in the record, whiсh she tried to ignore.
As a consequence of the emotional distress this was causing her, plaintiff claims she had to start seeing a therapist in October 2014. Nevertheless, because of the nature of the industry, she could not avoid running into Landesman at events over the next two years. On those occasions he took advantage of the opportunity to whisper suggestions about masturbation and spanking while publicly touching her hands, waist, buttocks and hips without her consent.
In April 2016 and thereafter, he texted her more explicit materials linked to explicit videos and web articles, and chided her when she failed to respond. When plaintiff saw Landesman in Artforum‘s premises in May 2016, she implоred him to stop the harassment, which was harming her emotionally and professionally. In response he rubbed her calf with his shoeless
Instead, plaintiff met with Charles Guarino and Danielle McConnell, who published Artforum Magazine along with Landesman, to communiсate the harassment and show them some of Landesman‘s emails. The publishers subsequently advised plaintiff by email that she could contact a lawyer and seek out other targets of Landesman‘s harassment. Plaintiff responded that she was not seeking monetary relief but only wanted to end the harassment without damage to her career. In response, Guarino promised in writing that Artforum was “taking action to insure that whatever may have transpired never happens again.”
Plaintiff alleges that any action taken was minimal and ineffective insofar as Landesman‘s harassment continued. However, she alleges, it became clear to her that Artforum did take action - but against her, by excluding her from the influential dinners and events which were professionally important in the New York art world to which she had regularly been invited in the past. In the meantime, plaintiff alleges, in reliance on Guarino‘s and McConnell‘s promise that Artforum would take steps to ensure that Landesman‘s sexual harassment would never happen again, she did not file legal claims for Landesman‘s conduct, and the limitations periods passed, precluding adequate relief.
Apparently, Artforum‘s efforts in furtherance of its promise, limited to directing Landesman to engage in therapy and not to contact plaintiff, were unsuccessful and in effect were superficial window dressing. Plaintiff alleges that on May 7, 2017, plaintiff was dining in a Manhattan restaurant with her partner, an academic and professional artist, and Alex Kitnick, an art professor and critic, both of whom appeared regularly in Artforum Magazine, when Landesman, uninvited, appeared, sat down, and harangued her about accusing him unfairly of sexual harassment. The attempted departure of Kitnick, whom Landesman professed was a “dear friend,” was physically blocked by Landesman, after which Landesman threatened to reveal “details” to him so that he could “judge” for himself. As described in the complaint, plaintiff was emotionally distraught and fearful of the professional consequences.
However, as negotiations were ongoing, plaintiff alleges, Artforum conducted an employеe meeting at which employees were told that plaintiff‘s claims involving Landesman were unjust, that she had maintained a consensual and non physical relationship with him, that plaintiff was exaggerating, and that her goal was actually to “try to take down Artforum.” During a subsequent statement to an Artnet reporter, Artforum characterized plaintiff‘s relationship with Landesman as only a close friendship which started after she had left Artforum and stated that her claims were unfounded and were only “an attempt to exploit a relationship that she herself worked hard to create and maintain.” Moreover, Artforum stated, in stark contradiction to the nondisclosure agreement on which Artforum had insisted as a condition of settlement, that “we have no wish to silence anyone, nor will we engage in any attempt to do so.”
Concurrently, plaintiff alleges, Artforum had been excluding her from its sponsored events that were essential for business development, meeting artists, other curators and other participants in the New York art world and thereby, in effect, freezing her out from the trade. In the present action, plaintiff connects Artforum‘s exclusionary conduct and its disparaging comments about her experiences and motivation to portray a pattern of its own harassment directed at her in retaliation for having brought these matters to light.
By complaint dated October 25, 2017, plaintiff sued both Artforum and Landesman for retaliation in violation of New York City‘s Human Rights Law set forth in
Supreme Court granted defendant‘s
It is well established that on a motion to dismiss pursuant to
The United States Supreme Court, interpreting the “employment” relationship with reference to
Hence, there is jurisprudential grounding for exрanding the boundaries of the employment context that is central to discrimination and retaliation claims in
Similar reasoning can be justified in reading some expansiveness into the undefined and similarly ambiguous term “employment” for remedying retaliation under
Thesе facts, as pleaded and supplemented by materials in the record, satisfy that requirement for purposes of stating a cause of action for retaliation against Artforum. Plaintiff‘s employment in her career started with Artforum, where Landesman, allegedly known to engage in sexual harassment at that time, was her supervisor. Landesman, a publisher, supervisory employee and part owner of Artforum, allegedly engaged in extensive sexual harassment during those early years, which continued for several years thereafter, during which he even portrayed himself as her “teacher.” Even if his meaning was libidinous rather than supervisory as time went on, he nevertheless underscored the extent to which plaintiff remained professionally and economically tethered to him, and hence to Artforum, due to their influence in the art world, at least for purposes of
During those same years, Artforum also maintained a business and professional relationship with plaintiff by regularly inviting her to the events that it sponsored. The complaint sets forth how necessary this kind of relationship was for her business success. It was at such events, plaintiff claims, that she met artists, curators, and other professionals in the field, networking that was essential to her own professional and business success. Although the facts as pleaded do not allow for Artforum‘s vicarious liability for its employee‘s misconduct, they do provide a plausible context for explaining why and how it reacted as it did, for purposes of this
As pleaded, then, this was an ongoing seamless affiliation in which plaintiff, by virtue of the extent and nature of Artforum‘s influence, necessarily remained in a subordinate economic position to it in its role as a publisher and as a professional lodestar. The break came, as alleged in the complaint, when, having relied on her established relationship with Artforum, plaintiff first professionally requested the publishers’ assistance in ending Landesman‘s emotionally and professionally damaging behavior, then, when that allegedly failed, she took the additional step of seeking legal assistance. Whether we deem the former еmployment to extend to these circumstances for purposes of pleading retaliation, or we construe the ongoing quasi-employment economic relationship that bound plaintiff to Artforum to be an adequate criterion, these facts as pleaded sufficiently make out a claim of retaliation against Artforum within the reach of
The complaint sets forth two categories of retaliatory responses by Artforum, which, plaintiff alleges, harmed her professionally and, relatedly, from a business perspective. As already noted, she alleges that Artforum essentially froze her out of the gatherings sponsored by it where the New York art world congregated, thereby diminishing her ability to sustain success in that field. In effect, she argues in sum and substance, Artforum, influential in the art world, could help make or break her career.
Magnifying this alleged harm, she further claims, Artforum‘s characterizations of her conduct, motivations and goals presented
The retaliation claim against Landesman, however, fails on the absence of an allegation of actual retaliation. Plaintiff therein relies on the mere allegation that when Landesman confronted plaintiff in the restaurant he “threaten[ed] to discuss the ‘details‘” with Kitnick and her partner, which she construes as a threat to slander her. The complaint alleges no further conduct on Landesman‘s part, nor is there any reliable means to know whаt “details” were in issue. Notwithstanding the characterization in the complaint, these were not threats in any explicit sense notwithstanding possible, albeit unstated and vague, implications of his reaction to her accusation. Although plaintiff argues that Landesman in doing so was acting within the scope of his employment with Artforum, the facts as alleged show no more than Landesman‘s personal defensive hostility.
We reinstate the claim for promissory estoppel. The facts as pleaded show that plaintiff, relying on her ongoing professional and business relationship with Artforum, sought the personal help of two of its co-publishers in restraining the sexual harassment of its third co-рublisher so as to avoid further emotional and professional harm to her; conceding their awareness of Landsman‘s proclivities, they professed to be concerned for her emotionally and professionally and promised that she would
Although evolving caselaw indicates that a defendant‘s public accusation of a plaintiff of fabricating claims of sexual harassment may support a theory of defamation, importance must still be placed on the allegedly slanderous words and whether they are provably false factual statements, in order to be actionable. Subjective statements of opinion, in contrast to objectively understandable statements of fact, are not actionable as such (Mann v Abel, 10 NY3d 271 [2008], cert denied 555 US 1170 [2009]). The verbal and written texts on which plaintiff relies in the complaint fall short of defamation, even if they ultimately may be supportive of the retaliation claim against Artforum. Plaintiff claims that at the employee meeting, Artforum described her claims as “unjust.” This is subjective opinion. Accepting the allegation as true, Artforum also described plaintiff‘s relationship with Landesman as “consensual and non physical.” This would seem to be accurate in a technical sense. Plaintiff contends that Guarino told the employees that plaintiff was campaigning to “take down Artforum.” The phrase “take down” is a figure of speech, perhаps even hyperbolic, amenable to several possible meanings, making it innately not falsifiable. Moreover, in context it seems to be intended as a statement of opinion (Mann, 10 NY2d at 276-277). The complaint alleges that Artforum wrote on its own website and communicated to Artnet for publication in that medium that plaintiff‘s sexual harassment claim “appears to be unfounded, and seems to be an attempt to exploit a relationship that she herself worked hard to create and maintain.” While possibly disingenuous, this carefully hedged phrasing also does not present falsifiable statements of fact; how something “appears” and what it “seems” to be are innately subjective. Even if the qualifying verb forms had been omitted, the statements are more in the nature of defensive statements of conjecture that would be classifiable as opinion rather than provably false facts (El-Amine v Avon Prods., 293 AD2d 283 [1st Dept 2002]).
Since the statemеnts on which plaintiff relies are neither slander nor defamation, we need not reach the per se claims. Even if we did, however, the complaint does not set forth the requisite damages arising from these statements.
Even if Artforum might be construed to have assumed a moral obligation to plaintiff to intercede with Landesman to end his offensive conduct, the complaint fails to set forth a legal duty of care owed by Artforum to plaintiff, a breach of that duty, foreseeability and Artforum‘s proximate causation in relation to the confrontation by Landesman, such as would sustain a negligence theory of harm (Hunt v Scotia-Glenville Cent. School Dist., 92 AD2d 680 [3d Dept 1983]). Nor do these facts establish a basis to imply a duty of care by Artforum owed to plaintiff as urged by the dissent. The promissory estoppel claim rests on a reliance theory - plaintiff allegedly forebore time-limited legal rights on the basis of an assurance that Artforum‘s management would induce Landesman to change his conduct towards plaintiff, in which they did not succeed - which differs from Artforum‘s assumption of a duty of care towards plaintiff. As Supreme Court found, the pleadings show, at most, that Landesman‘s statements during the restaurant confrontation were his own, for his own purposes while he was not under Artforum‘s control, that they were not made to advance Artforum‘s interests, and that he was the sole proximate cause of any alleged harm resulting therefrom. Nor do the facts as pleaded establish a basis to impute to Artforum Landesman‘s misconduct after plaintiff left its employment, and the limitations period had long lapsed since she left its employment.
All concur except Mazzarelli, J. who dissents in part in a memorandum as follows:
MAZZARELLI, J. (dissenting in part)
I dissent from that part of the majority‘s decision that affirms the dismissal of plaintiff‘s claim for gross negligence. The majority acknowledges that plaintiff reasonably relied to her detriment on representations made by Artforum that it would take action to protect her from defendant Landesman‘s harassment. However, the promise implied from those representations, that the majority holds Artforum is estopped from
The basis for both causes of action is a meeting plaintiff had in June 2016 with two of Artforum‘s co-publishers at Artforum‘s office. Although the meeting took place four years after plaintiff left Artforum‘s employ, it followed a persistent campaign of sexual harassment against plaintiff pursued by Landesman after she left the company. According to the complaint, plaintiff told the publishers about Landesman‘s long history of sexually harassing her, showed them sоme of the recent text messages he had sent her, and asked them to prevail upon Landesman to stop. Plaintiff explained that her goal was not monetary, but solely to have Landesman stop without seeking retribution against her. The publishers expressed horror at Landesman‘s conduct, and one of them confirmed that other young women had previously complained to him about Landesman‘s sexual harassment. Plaintiff followed up with an email summarizing the meeting, and received an emailed response assuring her that the publishers would be “taking action to insure that whatever may have transpired never happens again.” Artforum told Landesman to see a theraрist, not to approach plaintiff, and not to meet female employees alone or bring them to industry events. However, it took no steps to enforce these instructions. Instead, Artforum continued to employ Landesman and provide him with a private office. Moreover, plaintiff alleges that, contrary to these assurances to her, Artforum directly retaliated against her by excluding her from its events and dinners, including functions to which she had already been invited.
Much like a promise can be implied when the promisee relies on the words or acts of a promisor, a duty of care can be implied when a person relies on another person‘s commitment to assume the duty (see Heard v City of New York, 82 NY2d 66, 72 [1993]). The majority‘s attempt to differentiate between the reliance element of the promissory estoppel cause of action and that of the gross negligence claim, by emphasizing plaintiff‘s forbearance from asserting certain legal rights in alleging the former, ignores that a negligence claim can, as here, be grounded on a plaintiff‘s reliance on another party‘s actions such that she is lulled into a false sense of security (id. at 72-73, citing Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522 [1980]). Here, a promise was implied, and a willingness to undertake a duty conveyed, when Artforum told plaintiff in the June 2016 meeting that it would be “taking action.” If, as the
For the foregoing reasons, I would reinstate plaintiff‘s gross negligence claim.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 26, 2019
CLERK