Dobrykov v. Brickhouse Food LLC

Background

Zena Dobryakov brought claims against Brickhouse Food LLC and Nertila Kaja, also identified as John Kaja, alleging harassment, sexual assault, discrimination, a hostile work environment, wrongful termination, and retaliation. Her claims against Kaja included claims under the New York State Human Rights Law, emotional-distress claims, assault and battery, and a claim under New York law for conduct constituting certain sexual offenses. Brickhouse had not appeared or responded to the complaint as of the date of the opinion.

Kaja filed an answer that included a counterclaim accusing Dobryakov of defamation, pleaded as both libel and slander. He alleged that Dobryakov made false statements about him to third parties, including his employer, and sought monetary damages. The opinion states that Kaja alleged the statements involved criminality or other false facts that could harm him in his business, trade, or profession.

Dobryakov asked the court to amend her complaint in two ways: to add facts supporting retaliation claims under Title VII, the federal employment-discrimination law, and the New York State Human Rights Law; and to add a corporate defendant that she alleged was Brickhouse’s alter ego or successor. She also asked the court to dismiss Kaja’s defamation counterclaim. Although Dobryakov styled that request as also seeking judgment on the pleadings or summary judgment, the court applied the standard for a motion to dismiss for failure to state a claim because the case was at the pleading stage and discovery had not occurred.

Motion to Amend

The court granted in part and denied in part Dobryakov’s motion to amend. Kaja did not oppose adding another defendant, and the court granted leave for that amendment.

The court denied leave to add the proposed retaliation claim. To state a retaliation claim under Title VII or the New York State Human Rights Law, a plaintiff must plausibly allege protected activity known to the defendant, an employment action that disadvantaged her, and a connection between the two. Dobryakov’s proposed amendment added two paragraphs asserting that Kaja filed the counterclaim to retaliate against and intimidate her because she named him as a defendant. The court found those assertions were legal conclusions rather than supporting facts and therefore did not plausibly state a retaliation claim. The court declined to reach Kaja’s other arguments against that proposed claim.

The court denied the retaliation-related amendment with leave to renew. The conclusion states that Dobryakov may renew her request to add factual allegations supporting retaliation claims under the New York State Human Rights Law and Title VII.

Motion to Dismiss the Defamation Counterclaim

The court granted Dobryakov’s motion to dismiss Kaja’s counterclaim. Under New York law, defamation includes spoken defamation, or slander, and written defamation, or libel. At the pleading stage, a defamation claim must identify the allegedly false statement, who made it, when it was made, and the third parties to whom it was communicated.

The court found that Kaja’s counterclaim did not identify the particular statements, the time of the statements, or the people to whom they were communicated. Instead, it repeated the legal elements of libel and slander without supporting facts. The court also rejected reliance on future discovery to identify the statements because Kaja had not provided factual allegations supporting the counterclaim in the first place.

The court dismissed Kaja’s defamation counterclaim without prejudice. Because it dismissed the counterclaim on the lack of required detail, it did not consider Dobryakov’s other arguments, including her arguments concerning protected activity, New York’s anti-lawsuit-against-public-participation law, timeliness, and jurisdiction.

Disposition

Judge Nelson S. Roman’s order granted in part and denied in part Dobryakov’s motion to amend. Dobryakov may amend to add an additional defendant, but the proposed retaliation amendment was denied with leave to renew. The court granted Dobryakov’s motion to dismiss, dismissed Kaja’s counterclaim without prejudice, and allowed Kaja to file an amended answer and counterclaim by February 16, 2024. If he did not timely amend, claims previously dismissed without prejudice would be deemed dismissed with prejudice. The clerk was directed to terminate the two motions on the docket.