Opinion
14924 Index No. 155468/15 Case No. 2021–01688
12-28-2021
Sara PETTY, Plaintiff-Appellant, v. The LAW OFFICE OF ROBERT P. SANTORIELLA, P.C., et al., Defendants-Respondents.
Arce´ Law Group, PC, New York (MaKenna Rogers of counsel), for appellant.
Arce´ Law Group, PC, New York (MaKenna Rogers of counsel), for appellant.
Webber, J.P., Mazzarelli, Gesmer, Gonza´lez, Rodriguez, JJ.
Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about November 27, 2020, which, after an inquest on damages upon defendants' default, dismissed the complaint, unanimously reversed, on the law, without costs, the complaint reinstated, and the matter remanded for a new inquest on damages before a different Justice in accordance with this decision.
"[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages" ( HF Mgt. Servs. v. Dependable Care, LLC, 198 A.D.3d 457, 458, 152 N.Y.S.3d 574 [1st Dept. 2021] [internal quotation marks omitted]; see Rokina Opt. Co. v. Camera King, Inc., 63 N.Y.2d 728, 730–731, 480 N.Y.S.2d 197, 469 N.E.2d 518 [1984] ). "Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action," but the standard of proof is "minimal," "not stringent" ( Joosten v. Gale, 129 A.D.2d 531, 535, 514 N.Y.S.2d 729 [1st Dept. 1987] ).
In this case, plaintiff made a prima facie showing in support of all of her causes of action against the defaulting defendants, and therefore the court should not have dismissed the complaint (see Taylor v. Brooke Towers LLC, 73 A.D.3d 535, 901 N.Y.S.2d 224 [1st Dept. 2010] ).
In her uncontroverted complaint and testimony, plaintiff averred that defendant Santoriella used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. She alleged that he accomplished this by asking her unnecessarily intrusive and humiliating questions which were irrelevant to his representation of her; by continuing to do so even after she told him that his questions were exacerbating her post-traumatic stress disorder and causing her extreme distress; by requesting that she send him photographs and videos which he then used for his own sexual gratification; and by sending her unsolicited sexually explicit photographs of his girlfriend.
Plaintiff properly established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant Santoriella discriminated against plaintiff based on her gender by "directly or indirectly ... withhold[ing] from" plaintiff at least some of "the accommodations, advantages, facilities or privileges" of defendant law firm. Given that the similarly worded Administration Code of the City of New York § 8–107(4)(a) (City HRL ) has an even broader application and more liberal construction than the State HRL (see Morse v. Fidessa Corp., 165 A.D.3d 61, 84 N.Y.S.3d 50 [1st Dept. 2018] ; Williams v. New York City Hous. Auth., 61 A.D.3d 62, 66, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009]), plaintiff also made a prima facie showing that defendant Santoriella's discriminatory behavior violated the City HRL, by "directly or indirectly ... withhold[ing] from" plaintiff "the full and equal enjoyment, on equal terms and conditions, of" at least some "of the accommodations, advantages, services, facilities or privileges of" defendant law firm (Administrative Code § 8–107[4][1][a]). Finally, plaintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant Santoriella engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress ( Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ; Owen v. Leventritt, 174 A.D.2d 471, 472, 571 N.Y.S.2d 25 [1st Dept. 1991], lv denied 79 N.Y.2d 751, 579 N.Y.S.2d 651, 587 N.E.2d 289 [1991] ). In particular, defendant Santoriella's abuse of his position of power and the attorney-client relationship in responding to plaintiff's attempt to obtain legal representation relating to a prior sexual assault by sexually harassing her was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Howell, 81 N.Y.2d at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [internal quotation marks omitted]).
Since the existing record does not provide an adequate basis to assess damages, we remand solely for a new inquest, on notice, to determine plaintiff's damages (see Tanous v. Ran Corp., 272 A.D.2d 105, 708 N.Y.S.2d 609 [1st Dept. 2000] ). The new inquest should address, among other things, plaintiff's requests for punitive damages and attorney's fees pursuant to Administrative Code § 8–502(a) and (g).