Lockwood v CBS Corp.
2023 NY Slip Op 04585 [219 AD3d 1326]
September 13, 2023
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 8, 2023


[*1]
 Lauren Lockwood, Appellant,
v
CBS Corporation, Respondent, et al., Defendants.

The Clancy Law Firm, P.C. (Niall MacGiollabhui, New York, NY, of counsel), for appellant.

Morgan, Lewis & Bockius LLP, New York, NY (Liliya P. Kramer, W. John Lee, pro hac vice, and Michael L. Banks, pro hac vice, of counsel), for respondent.

In an action, inter alia, to recover damages for employment discrimination on the basis of sex in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated February 27, 2020. The order granted the motion of the defendant CBS Corporation pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiff worked as a sports account executive for WFAN/Yankees Radio Network from November 2012 to July 2017. The plaintiff was directly employed by the defendant CBS Radio East, LLC, which was a wholly owned, indirect subsidiary of the defendant CBS Radio, Inc. (hereinafter together the CBS Radio defendants). CBS Radio, Inc., was a wholly owned, indirect subsidiary of the defendant CBS Corporation.

During her employment, the plaintiff allegedly was sexually harassed by certain male supervisors and coworkers and was afforded unfavorable treatment as compared to her male counterparts. In July 2017, the plaintiff allegedly was involved in an altercation at an employer-sponsored event, and her employment was terminated soon thereafter.

On July 17, 2018, the plaintiff commenced this action against, among others, the CBS Radio defendants, inter alia, to recover damages for employment discrimination on the basis of sex in violation of the New York State Human Rights Law and the New York City Human Rights Law. The plaintiff subsequently sought and obtained leave to amend the complaint to add CBS Corporation as a defendant. Thereafter, CBS Corporation moved pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against it. In an order dated February 27, 2020, the Supreme Court granted the motion. The plaintiff appeals.

When considering a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, "the court must accept the facts as alleged in the complaint as true, accord [*2]plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Belling v City of Long Beach, 168 AD3d 900, 901 [2019]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Further, the court "may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects" (Minovici v Belkin BV, 109 AD3d 520, 521 [2013]). Nevertheless, " 'conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss' " (Young v 101 Old Mamaroneck Rd. Owners Corp., 211 AD3d 771, 774 [2022], quoting Godfrey v Spano, 13 NY3d 358, 373 [2009]). Moreover, "[w]hen evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one" (Belling v City of Long Beach, 168 AD3d at 901).

The plaintiff asserts that CBS Corporation should be subject to liability based on the single employer doctrine. The single employer doctrine imposes liability where " 'two nominally separate entities are part of a single integrated enterprise' " (Echevarria v Insight Med., P.C., 72 F Supp 3d 442, 458 [SD NY 2014], quoting Lima v Addeco, 634 F Supp 2d 394, 400 [SD NY 2009], affd 375 Fed Appx 54 [2d Cir 2010]). The doctrine "sets forth four criteria to determine whether two or more companies are sufficiently interrelated to constitute a single entity: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control of the entities in question" (Matter of Argyle Realty Assoc. v New York State Div. of Human Rights, 65 AD3d 273, 278-279 [2009]). Of these four factors, "the most critical is the second: centralized control of labor" (McHenry v Fox News Network, LLC, 510 F Supp 3d 51, 81 [SD NY 2020] [internal quotation marks omitted]). In determining whether there is a centralized control of labor, the "critical question" is " 'what entity made the final decision regarding employment matters related to the person claiming discrimination?' " (Echevarria v Insight Med., P.C., 72 F Supp 3d at 459, quoting Velez v Novartis Pharm. Corp., 244 FRD 243, 250 [SD NY 2007]).

Here, the amended complaint, together with the evidence the plaintiff submitted in opposition to CBS Corporation's motion, failed to sufficiently allege or evince facts that would support a finding of a single employer relationship between CBS Corporation and the CBS Radio defendants. Most critically, the amended complaint, even as amplified by the plaintiff's evidentiary submissions, merely consisted of bare legal conclusions that CBS Corporation and the CBS Radio defendants had a centralized control of labor relations. The plaintiff failed to evince or allege in a nonconclusory manner any way in which CBS Corporation was involved in her employment with the CBS Radio defendants (see Adler v 20/20 Cos., 82 AD3d 915, 917 [2011]; Echevarria v Insight Med., P.C., 72 F Supp 3d at 459; see also Musiello v CBS Corp., 518 F Supp 3d 782, 790 [SD NY 2021]). Accordingly, the Supreme Court properly granted CBS Corporation's motion pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against it. Connolly, J.P., Wooten, Ford and Taylor, JJ., concur.