21

- 1727 Hay v. N.Y. Media LLC



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CIT ING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 0 t h d a y of M a r c h , two thousand twenty

- two

. 3 4 PRESENT: 5 JOHN M. WALKER , JR. , 6 PIERRE N. LEVAL, 7 MICHAEL H. PARK, 8 Circuit Judges. 9

_____________________________________ 10 11 BRUCE HAY , 12 13 Plaintiff

- Appellant , 14 15

v. 21

- 1727 16 17 NEW YORK MEDIA LLC, KERA BOLONIK , 18 19 Defendants

- Appellees. * 20

_____________________________________ 21 22 F OR PLAINTIFF

- APPELLANT: J ILLIAN T. W EISS , Law Office of Jillian T. 23 Weiss, P.C., Brooklyn, NY. 24 25 F OR DEFENDANT S

- APPELLEE S : K ATHERINE B OLGER ( Jeremy Chase
, on the 26 brief ), Davis Wright Tremaine LLP, New 27 York, NY. 28 29

* The Clerk is respectfully directed to amend the caption accordingly.2 Appeal from a judgment of the United States District Court for the Southern District of 1
New York ( Oetk en , J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4
Bruce Hay, a civil procedure professor at Harvard Law School, appeals the denial of his 5
request for leave to fil e a second amended complaint ( “ SAC ” ) in his lawsuit against Kera Bolonik 6
and her former employer, New York Media LLC (“New York Media”)

. 1 The allegations in the 7

SAC center on a July 20 19 article

— published in print in New York Magazine and online in The 8

Cut

— in which Bolonik wrote of Hay’s tumultuous relationship with married couple Maria

- Pia 9

Shuman and Mischa Shuman (“the Shumans”)

. The article described the relationship between a 10
“spellbound” Hay and the Shumans, who cycled between flattery and romantic affection toward 11
Hay, at certain times, and harassment of him and his family, at others. The article recounts that 12
the Shumans, for example, deceived Hay in to believing that he fathered Maria

- Pia’s child, filed 13
retaliatory rape and sexual harassment allegations against Hay in a Title IX complaint at Harvard, 14
and manufactured a fraudulent lease in order to take possession of the Hay family’s home. 15
According t o the article, Hay “entertain[ed] doubts” about the Shumans and on several occasions 16
contacted law enforcement, but he “still sought ways to justify, or at least make sense of, [the 17
Shumans’] campaign against him, searching in earnest for evidence of genui ne affection amid the 18
years of deceit.” App’x at 337, 344. 19

Hay approached Bolonik in the summer of 2018 and told her “ that he believed he and 20
several other men had been victimized by the Shumans .” SAC ¶ 71. Bolonik published an article 21

1 The following facts are taken from the proposed SAC, which we must take as true for purposes of this appeal.3 titled The Most Gullible Man in Cambridge on July 22, 2019, and

— upon receiving further stories 1

of similar interactions with the Shumans from other people

— another article titled The Harvard 2
Professor Scam Gets Even Weirder on August 8, 2019. After publication, Hay “p romote[d] the 3
article and defend[ed] it from legal attacks
, ” and he even assist ed Bolonik in writing a letter 4

“negat [ ing ] ” the Shumans’ defamation claims against the author

. Id. ¶ ¶ 81, 142. Hay further 5
agreed to solicit bids to convert the articles into a movie or TV series. 6
Hay has since had “a change of heart

. ” Sp. App’x at 2. Althoug h his SAC does not dispute 7
that the Shumans falsely claimed his paternity of Maria

- Pia’s child, that the sexual assault 8
allegations against him were fabricated , or that the Shumans fraudulently created a lease to his 9
home, Hay objects to the way in which Bolonik characterized the Shumans. Whereas he once 10

believed that he was a victim of a “campaign of fraud, extortion, and false accusations”

— and so 11

sued the Shumans and reported them to law enforcement

— he now believes that the articles rely 12
on a “salacious fictional portrayal of the Shumans as sexually deviant predators and Plaintiff as 13
their clueless, gullible victim.” SAC ¶ ¶ 12 , 71

. His complaint states th at t he Shumans were 14
“victims of a campaign of lies directed at them, fueled

. . . by prejudice” against Maria

- Pia for 15
“reject[ing] traditional notions of feminine passivity in relationships” and against Mischa for being 16
“a transgender woman of color

. ” Id. ¶¶ 24
, 29, 86

. Among other about

- faces, Hay has retracted a 17

claim that the Shumans made unauthorized withdrawals from his bank account

— recalling now 18

that he had in fact authorized the withdrawals . Hay has also dropped his lawsuit against the 19

Shumans and requested that New York Media take down the two articles. Hay now says that it 20

was Bolonik, not the Shumans, who “deceived and manipulated” Hay by turning him against the 21

Shumans to facilitate publication of the article

. Id. ¶ 123

. 22
Proceeding pro se, Hay brought a diversity action against Bolonik and New York Media in 234 the United States District Court for the Southern District of New York, alleging breach of contract 1

and violation of the New York City Human Rights Law (“NYCHRL”). 2 As to the breach of 2

contract claim, H ay contends that he entered an oral contract with Bolonik in which she made 3
certain promises of professionalism in exchange for his willingness to come forward with the story. 4
Bolonik allegedly breached those promises through “reliance on a single whistleblower, 5
inadequate planning and research, failure to adhere to accepted standards of accuracy and 6

evidence,

. . . [and] failure to cross

- check her preferred narrative against other sources ,” among 7
other missteps

. Id

. ¶ 200. As for the NYCHRL claim, Hay alleges multiple incidents of sexual 8
harassment by Bolonik, the details of which Hay first includes in his proposed SAC. Hay moved 9

for leave to file the SAC, and the district court denied Hay’s motion as futile. Hay , n ow 10
represented by counsel, appealed the court’s decision . We review de novo a denial of a motion 11

for leave to amend as futile. Gorman v. Consol

. Edison Corp. , 488 F.3d 586, 592 (2d Cir. 2007). 12
We assume the parties’ familiarity with the underlying facts, procedural history, and issues on 13
appeal. 14

First, we agree with the district court that the SAC failed to state a claim for breach of 15

contract , though we reach that conclusion on alternative grounds. See McCall v. Pataki , 232 F.3d 16

321, 32 3 (2d Cir. 2000) (“This Court

. . . is free to affirm an appealed decision on any ground 17
which finds support in the record, regardless of the ground upon which the trial court relied.” 18
( cleaned up )). 19
It is evident from the face of the SAC that the alleged oral agreement between Hay, 20

Bolonik, and New York Media is void under New York’s Statue of Frauds. N ew York ’ s Statute 21
of Frauds provides in pertinent part : 22

2 Hay originally also brought a defamation claim, which he drops in his proposed SAC.5 Every agreement, promise or undertaking is void, unless it or some note or 1 memorandum thereof be i n writing, and subscribed by the party to be charged 2 therewith, or by his lawful agent, if such agreement, promise or undertaking

. . . 3 [b]y its terms is not to be performed within one year from the making thereof

. . . . 4
N.Y. Gen. Oblig. Law § 5

- 701(a) , (a) (1)

. Under the Statute of Frauds, an oral agreement is not 5

enforceable if it contains terms that bind a party indefinitely

. See, e .g. , Myers v. Waverly Fabrics
, 6
475 N.Y.S.2d 860, 861 (1st Dep ’ t 1984) (finding that the Statute of Frauds appli es to a contract 7
whereby one party was “ prevented, in perpetuity, from using the [other party’s] design in any 8
manner except on fabric or on wallpaper ”)

. 9
Here, Hay alleges that
, in consideration for Bolonik’s promise that her reporting would be 10
“profession al ” in that “she would bring to bear her experience . . . to ensure that the story was up 11
to the customary ethical standards of long

- form investigative journalism
, ” Hay “agreed to cease 12

communications with the [ New York ] Times and other media outlets about the story and to work 13
exclusively with Bolonik and New York Magazine .” SAC ¶ ¶ 7 5

- 7 6

. Even drawing all reasonable 14
inferences in Hay’s favor, his promise to work exclusively with Bolonik and New York Magazine 15

would bind him permanently. N othing in the SAC suggests that Hay’s obligation to refrain from 16
working with other media outlets on the same story would terminate upon publication of Bolonik’s 17

article , or upon any other event. There is no basis on which to conclude that Hay was free upon 18
publication of Bolonik’s story to work with other publications on competing or other versions of 19

the story. As a result, Hay’s alleged contract with Bolonik and New York Media is void under the 20

Statute of Frauds , and the SAC therefore fails to state a claim for breach of contract. 21
Second, the district court correctly dismissed Hay’s NYCHRL claim. Hay’s cause of 22

action is precluded by Hoffman v. Parade Publications
, 933 N.E.2d 7 44 (N.Y. 2010), in which the 23
New York Court of Appeals rejected an NYCHRL claim by a Georgia resident because the case 24

involved no “impact within” New York City. Id. at 746. Hay, a Cambridge, Massachusetts 256 resident, does not contend that any of the alleged events took place when he was inside city limits 1

or that this suit otherwise involves his employment within New York City

. There was thus no 2
“impact” of any alleged violations within New York City, and considering Hay’s claim would 3
impermissibly “expand[] NYCHRL protections to nonresidents who have, at most, tangential 4
contacts with the city.” Id. at 747 ; see also id. (explai ning that the “impact” requirement “confines 5
the protections of the NYCHRL to those who are meant to be protected

— those who work in the 6
city”)

. 7

We have considered the remainder of Hay’s arguments and find them to be without merit. 8
For the foregoing reason s, we affirm the judgment of the district court. 9

FOR THE COURT: 10 Catherine O ’ Hagan Wolfe, Cler k of Court 11