In Denson v. Donald J. Trump for President, Inc., 2022 NY Slip Op 03986 (N.Y. App. Div. 1st Dept. June 21, 2022), the Appellate Division, First Department affirmed the denial of plaintiff’s motion for partial summary judgment on her claim of retaliation under the New York City Human Rights Law.
From the decision:
The record fails to demonstrate conclusively that defendant commenced arbitration proceedings pursuant to the parties’ non-disclosure, non-disparagement agreement (NDA) in retaliation for plaintiff’s filing of a sex discrimination action (Administrative Code of City of NY § 8-107 ). Defendant submitted its chief operating officer’s affidavit averring that it had a legitimate basis for compelling arbitration, i.e., that it in good faith believed plaintiff violated the NDA by making factual allegations that exceeded the facts necessary to state a viable claim (see Marchuk v Faruqi & Faruqi, LLP, 100 F Supp 3d 302, 312 [SD NY 2015]; Schanfield v Sojitz Corp. of Am., 663 F Supp 2d 305, 342-343 [SD NY 2009]), and plaintiff failed to submit evidence showing that this proffered reason was pretextual (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 46 [1st Dept 2011], lv denied 18 NY3d 811 ).
The court further held that prior decisions in the litigation – namely, Denson v. Donald J. Trump for President, Inc. (180 AD3d 446 [1st Dept 2020]) or Denson v. Donald J. Trump for President, Inc. (530 F Supp 3d 412 [SD NY 2021]) – has preclusive effect, since “[n]either decision made any findings with respect to the issue of defendant’s motives for pursuing arbitration, and the retaliation claim did not arise solely from the transactions at issue in those prior proceedings.”