N.Y. City Antidiscrimination Law Doesn’t Apply to Plaintiffs or Events Unconnected With N.Y.,

Start at Hay v. N.Y. Media LLC, decided yesterday by the Second Circuit (Judges John Walker, Pierre Leval & Michael Park):

Bruce Hay, a civil procedure professor at Harvard Law School, appeals the denial of his request for leave to file a second amended complaint (“SAC”) in his lawsuit against Kera Bolonik and her former employer, New York Media LLC …. The allegations in the SAC center on a July 2019 article—published in print in New YorkIn magazines and online The Cut—in which Bolonik wrote of Hay’s tumultuous relationship with married couple Maria-Pia Shuman and Mischa Shuman ….

This article spoke about the “spellbound Hay” relationship with the Shumans. They were prone to flattery, romantic affection, harassment, at times, of Hay and his family. According to the article, Hay was deceived into thinking that he had fathered Maria Pia’s child. The Shumans then filed Title IX sexual harassment and rape allegations against Hay at Harvard. They also created a fake lease in order take over the Hay home. The article states that Hay was “entertainment.”[ed]Zweifels were expressed about the Shumans by him, who contacted law enforcement several times, but was still unable to find a way to justify, or even make sense, of his actions. [the Shumans’]Campaign against him and search in earnest to find evidence of genuine affection among the years of deceit.” A

Bolonik received a call from Hay during the summer 2018. He told Bolonik that he felt that Hay and other men were being victimized by Shumans. Bolonik published the article entitled The Most Gullible Men in Cambridge on July 22, 2019, and—upon receiving further stories of similar interactions with the Shumans from other people—another article titled Harvard Professor Scam gets even more bizarreUpdated August 8, 2019 Hay promoted the book after it was published.[d]Protect the article[ed]it from legal attacks”, and even helped Bolonik to write a letter “negat[ing]”The Shumans defamation lawsuits against Hay. Hay also agreed to invite bidders for the conversion of Hay’s articles to a TV or movie.

Hay recently had “a heart change.” Hay disagrees with the manner Bolonik described the Shumans. His SAC is not disputing that they falsely claimed his paternity to Maria-Pia and that he was a victim of a fraud to create a lease for his home. Whereas he once believed that he was a victim of a “campaign of fraud, extortion, and false accusations”—and so sued the Shumans and reported them to law enforcement—he now believes that the articles rely on a “salacious fictional portrayal of the Shumans as sexually deviant predators and Plaintiff as their clueless, gullible victim.”

His complaint states that the Shumans were “victims of a campaign of lies directed at them, fueled … by prejudice” against Maria-Pia for “reject[ing]Mischa, a transgender women of color, is being criticized for “traditional notions of female passivity in relationships”. Among other about-faces, Hay has retracted a claim that the Shumans made unauthorized withdrawals from his bank account—recalling now that he had in fact authorized the withdrawals. Hay also requested New York Media to remove the articles and dropped the lawsuit against them. Hay says now that Bolonik and not the Shumans “deceived” Hay, turning him against Shumans in order to allow publication.

Proceeding pro se, Hay [sued] …., alleging breach of contract and violation of the New York City Human Rights Law (“NYCHRL”). Hay claims that Bolonik made him an oral agreement in which he promised Bolonik professionalism in return for telling the truth. Bolonik allegedly breached those promises through “reliance on a single whistleblower, inadequate planning and research, failure to adhere to accepted standards of accuracy and evidence, … [and]Failure to compare her preferred narrative with other sources.” This is just one of many missteps.

Hay claims multiple instances of NYCHRL sexual harassment by Bolonik. Hay includes these details in his SAC. {Hay originally also brought a defamation claim, which he drops in his proposed SAC.}

Hay asked for permission to file the SAC. However, the district court refused Hay’s request as it was futile. Hay, now represented by counsel, appealed the court’s decision….

First, … [i]t is evident from the face of the SAC that the alleged oral agreement between Hay, Bolonik, and New York Media is void under … New York’s Statute of Frauds …: “Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking … [b]y its terms is not to be performed within one year from the making thereof …,”

A verbal agreement cannot be enforced under the Statute on Frauds if it has terms binding one of its parties indefinitely. See, e.g., Myers and Waverly Fabrics(1st Dec’t 1984). (finding out that the Statute of Frauds can be applied to a contract in which one of the parties is “prevented” from continuing to use the [other party’s]Design in any way except fabric and wallpaper

Here, Hay alleges that, in consideration for Bolonik’s promise that her reporting would be “professional” in that “she would bring to bear her experience … to ensure that the story was up to the customary ethical standards of long-form investigative journalism,” Hay “agreed to cease communications with the [New York] TimesBolonik is the only media outlet that will report on this story. New York Magazine.” Hay made a promise that he would only work with Bolonik, despite all the evidence in his favor. New YorkHe would be bound by the magazine forever.

SAC doesn’t suggest Hay’s obligation not to work with any media outlet on the same story would cease upon Bolonik’s publication or any other event. It is not possible to say that Hay had the right to collaborate with any other publication on different versions or competing stories after Bolonik published his story. Therefore, Hay’s supposed contract with Bolonik Media and New York Media has been declared null under the Statute Of Frauds. Accordingly, the SAC cannot assert a claim of breach of contract.

Second, Hay’s NYCHRL complaint was correctly denied by the district court. Hay is barred from bringing an action. Hoffman v. Parade Publications(NY.2010) The New York Court of Appeals denied a NYCHRL claim from a Georgian resident, stating that the case had no “impact in New York City”.

Hay, who is from Cambridge, Massachusetts, doesn’t claim any of these alleged incidents occurred when Hay was outside city limits. Hay does not believe this lawsuit involves Hay’s employment in New York City. Hay’s claim is therefore unfounded, as there was no “impact” from any violations in New York City.[ ]NYCHRL protections available to non-residents having tangential contact with the city.