In Denson v. Donald J. Trump for President, Inc., No. 101616/2017, 2021 WL 256624 (N.Y. Sup Ct, New York County Jan. 11, 2021), the court, inter alia, granted plaintiff’s motion to amend her complaint to add a claim for retaliation arising from defendants’ commencement of an arbitration proceeding in response to her lawsuit alleging a sex-based hostile work environment.
From the decision:
Leave to amend a pleading under CPLR § 3025 [b] is to be freely given “absent prejudice or surprise resulting directly from the delay” (see e.g. O’Halloran v Metropolitan Transp. Auth., 154 AD3d 83 [1st Dept 2017]; Anoun v City of New York, 85 AD3d 694 [1st Dept 2011]; see also Fahey v County of Ontario, 44 NY2d 934, 935 ). All that need be shown is that “the proffered amendment is not palpably insufficient or clearly devoid of merit” (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [1st Dept 2010]). To justify denial of such a motion, the opposing party “must overcome a heavy presumption of validity in favor of [allowing amendment]” (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]).
In opposition, Defendant posits that Plaintiff’s new cause of action fails for three reasons. First, Defendant claims that the proposed supplemental claim is pre-empted by the New York Constitution which prohibits a party from asserting a city law claim “that attempts to thwart or penalize a party’s exercise of state law rights.” Second, Defendant argues Plaintiff’s accusation that Defendant’s arbitration was retaliatory had been expressly rejected by this Court and the Appellate Division. Third, Defendant claims that since Plaintiff continues to litigate the instant matter, she necessarily has not been deterred from engaging in any protected activity.
Plaintiff’s motion is granted as Defendant in its opposition has failed to demonstrate that Plaintiff’s proposed pleading is palpably insufficient or clearly devoid of merit. To set forth a claim of retaliation under New York City Human Rights Law, Plaintiff must plead that: (1) she participated in a protected activity known to Defendant; (2) Defendant took an action that disadvantaged her; and (3) a causal connection exists between the protected activity and the adverse action (see New York City Administrative Code § 8-107 ; Fletcher v Dakota, Inc, 99 AD3d 43, 51-52 [1st Dept 2012]). Here, Plaintiff pled in her proposed supplemental complaint that immediately upon commencing this action, the protected activity, Defendant started the arbitration proceeding, indicating that it was in connection with the lawsuit. Plaintiff has pled that Defendant acted in an attempt to deter her from engaging in this litigation and to disadvantage Plaintiff economically.