Hay v. New York Media LLC

Background

Bruce Hay sued New York Media LLC and Kera Bolonik, the author and publisher of two articles published in New York magazine and its online journal. Hay alleged that he worked closely with the defendants as a source, fact-checker, and legal consultant concerning the articles. He claimed that the defendants promised, in an oral agreement, to report the story consistently with professional and ethical journalistic standards.

Hay initially asserted claims for breach of contract, defamation, and gender-based discrimination. The court had already granted the parties’ request to dismiss the defamation claims with prejudice and to terminate another defendant, David Korzenik, from the case. Hay’s proposed Second Amended Complaint dropped the defamation and New York State Human Rights Law claims while retaining the contract claim and a gender-discrimination claim under the New York City Human Rights Law.

Legal standard

Under Federal Rule of Civil Procedure 15, courts generally allow amendments when justice requires. But an amendment is futile when the proposed claim could not survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). At this stage, the court assumes the pleaded facts are true and asks whether they plausibly support legal relief.

Breach of contract

Hay alleged that the defendants promised to conduct the investigation and reporting according to professional journalistic standards. He claimed Bolonik violated that promise by failing to disclose facts that, in Hay’s view, showed that the Schumans were not predators and that the real story concerned the effects of transphobia, misogyny, and bigotry toward unconventional families.

The court held that the alleged agreement was too vague and indefinite to be enforceable under New York law. Terms such as “professional,” “thorough,” “sensitive to delicate gender issues,” and “treated with the utmost professionalism and respect” gave the court no objective basis for deciding whether the agreement had been kept or broken or for determining a remedy. The court also noted that reviewing the defendants’ journalistic choices could raise serious First Amendment concerns. It concluded that the contract claim could not survive a motion to dismiss, making the proposed amendment futile. The court did not reach the defendants’ additional arguments that the contract claim repackaged the dismissed defamation claim or was barred by the Statute of Frauds.

New York City Human Rights Law claim

Hay also alleged sexual harassment and gender-based discrimination under the New York City Human Rights Law. He argued that the law applied because the alleged conduct was planned, carried out, and completed in New York and continued to emanate from New York over time.

The court applied the rule that a nonresident asserting a New York City Human Rights Law claim must show that the alleged discriminatory conduct had an impact within New York City. Hay was a Massachusetts citizen living in Cambridge, and the opinion states that Bolonik traveled to Massachusetts to meet him. The court found no alleged impact in New York City and held that Hay’s claim could not proceed under the statute. The court declined to decide whether the statute otherwise covered Hay as the source of an article.

Disposition

The court denied Hay’s motion for leave to file the Second Amended Complaint as futile. Because the same defects applied to the contract and New York City Human Rights Law claims in the First Amended Complaint, the court dismissed those remaining claims for failure to state a claim without requiring the defendants to file another motion. Hay’s defamation claim had already been dismissed with prejudice, and he had abandoned the New York State Human Rights Law claim. The Clerk was directed to close the motion and the case.