A state appeals court on Tuesday shut down Paul Napoli’s bid to pursue defamation and defamation per se counterclaims against Denise Rubin, a former employee who is pursuing a $1 million sex discrimination lawsuit against the ex-firm and Napoli himself.
The Appellate Division, First Department, said in a terse decision that Napoli “fails to state with particularity the allegedly defamatory statements, and therefore his fourth and fifth counterclaims are defective as a matter of law.”
The panel found that words at issue in the counterclaims “consist largely of verbatim quotations from [Rubin's] complaint, and thus are ‘absolutely privileged and cannot form the basis of a defamation action,’” citing Flomenhaft v. Finkelstein, 127 AD3d 634.
The ruling in Rubin v. Napoli Bern Ripka Shkolnik, 154060/15, by Justices David Friedman, Dianne Renwick, Sallie Manzanet-Daniels, Barbara Kapnick and Ellen Gesmer, affirmed Manhattan Supreme Court Justice Cynthia Kern to the extent that Kern addressed defamation-based counterclaims.
Kern had also knocked out counterclaims asserting intentional and negligent infliction of emotional distress. The panel’s unanimous decision did not address those matters.
In all, just one of Napoli’s five counterclaims laid out against Rubin in a 43-page filing from April 2016 remains: A claim for tortious interference with contractual relations.
“I am disappointed some of my claims were dismissed, however my case will continue against Ms. Rubin on the remaining causes of action,” Napoli wrote in an email to the Law Journal on Tuesday.
Joseph Cerra, Rubin’s appellate counsel and a Newark-based partner at LeClairRyan, said he and his client were “gratified by the decision. We believe that Justice Kern’s decision was correct, and so we’re pleased that it was upheld in its entirety.”
The latest flurry of activity marks one more battle in a hard-fought lawsuit levied in 2015 by Rubin, a former general and appellate counsel at Napoli Bern Ripka Shkolnik and the related firm Worby Groner Edelman & Napoli Bern.
Meanwhile, Napoli and his former co-name partner, Marc Bern, continue to battle in a messy, yearslong breakup of the Napoli Bern Ripka Shkolnik personal injury firm. Court-appointed referee Mark Zauderer has issued more than 20 rulings in breakup litigation that started in 2014 when Napoli alleged Bern had frozen him out of the business while Napoli was hospitalized with leukemia. Bern has countered that once he took over day-to-day management of Napoli Bern, he discovered misconduct on Napoli’s part.
Rubin’s employment discrimination and breach of contract suit is a separate case, but some elements and allegations cross over from the firm breakup and the larger scheme that Napoli says was set in motion to oust him.
Rubin, who first began working at a Napoli Bern-run law firm as appellate counsel in 2003, became a general counsel in 2008.
Her complaint says she was paid “far less than male attorneys with less experience and responsibility” for years. She also claims that because of her gender, she had to watch repeatedly as “male attorneys with less experience and having far less responsibility within the firms were routinely hired as partners.”
What’s more, she alleged, in 2014 Napoli told her she had been terminated, although “there was no cause … and male attorneys with legitimate performance issues had not been terminated by defendants and remain employed by the Napoli Firm.”
To make matters worse, she claims, Bern quickly stepped in and told her she was “not being terminated and requested that she continue working, albeit from outside the firm’s physical offices.” The problem, though, she says while alleging breach of contract, was that after a couple of weeks she kept working but ended up not being paid or having her benefits covered.
Napoli, in court filings, has countered Rubin by saying she was an at-will employee who in 11 years never complained about discrimination. He alleges that Rubin began complaining and bringing the assertions against him only after he fell seriously ill and as she and Bern worked secretly together “to take over the firm” in 2014.
Clifford Robert, of Robert & Robert in Uniondale, who represents Bern in the breakup litigation, addressed the First Department’s Rubin ruling by email Tuesday.
“Rather than responding to meritless claims that have already been litigated, Marc Bern is focused on growing his thriving law practice,” he said.