In New York, a Supreme Court is actually the first point of entry for a lawsuit, with any further decision-making up to appellate courts. In September 2018, a famed TV and radio sportscaster saw his complaint filed against one of the most successful radio hosts in history dismissed over a jurisdictional matter.
The sportscaster appealed. On Thursday, the First Judicial Department of New York’s appellate courts issued its ruling. It’s not pleasant news for Warner Wolf.
In a decision handed down by the five-member Appellate Division, the Supreme Court — that lower court which first heard this case — affirmed its dismissal of age discrimination claims brought by Wolf against the now-retired Don Imus.
The problem: Wolf claims were brought under the City and State Human Rights Laws.
Wolf resides in Classics Plantation Estates, on the edge of the Everglades in South Naples, Fla.
Because the impact on Wolf from the termination of his employment occurred in the Sunshine State, and not in the Empire State, New York courts cannot consider his complaint, the appellate court affirmed.
“Whether New York courts have subject matter jurisdiction over a nonresident plaintiff’s claims under the [Human Rights Laws] turns primarily on her [or his] physical location at the time of the alleged discriminatory acts,” the appeals court ruled, citing the 2014 case Benham v eCommission Solutions LLC.
Further, the appellate court ruled, Wolf’s claim for tortious interference with contractual relations, also arising from the termination of his employment, was not viable.
Why? “The documentary evidence demonstrates that his employer did not breach his employment contract, but declined to exercise its contractual right to renew the contract for an additional year.”
Wolf is represented by Wigdor LLP associate Kenneth D. Walsh. He did not immediately respond to an emailed request for comment.
Also involved in the lawsuit: Cumulus Media‘s New York Market Manager Chad Lopez, WABC-AM Program Director Craig Schwalb and Cumulus SVP/Programming Mike McVay.
The trio of Cumulus employees need not worry about court appearances, or time spent defending their actions, based on the appellate court’s decision.
Wolf, who is now 81 years old, began appearing on the Imus in the Morning program as a sports contributor toward the end of 1996. This relationship lasted for 20 years.
While Imus’ former show saw him based at his Brenham, Tex., home, the program formally originated from WABC’s New York studios; WABC owner Cumulus was Wolf’s employer.
Toward the end of 2015, Wolf began contributing to Imus in the Morning from South Naples, Fla., rather than from WABC’s Manhattan home.
When Wolf relocated to Florida, his employment agreement provided for an annual salary of $195,000. The agreement also provided for 26 weeks of severance pay in the event that he was terminated without cause. In or about October 2016, with Cumulus’ finances on shaky ground, Schwalb began to renegotiate the agreement. To continue on the show, Wolf agreed to a steep reduction in salary from $195,000 to $80,000 per year, which, pursuant to an October 17, 2016 e-mail from Schwalb, retained the 26-week severance pay from the original agreement.
At no point in either Schwalb’s October 17, 2016 or October 18, 2016 e-mails, which confirmed Wolf’s salary, or Wolf’s October 17, 2016 acceptance e-mail was there a reference to the location from which Wolf would provide his services to the show.
According to the complaint, Wolf’s employment was terminated before a new negotiated agreement went into effect. He was replaced by Sid Rosenberg, a 51-year-old Brooklyn, N.Y., native who had just been dismissed in a cost-cutting move by Sports Talk WMEN-AM 640 in West Palm Beach, Fla.
Wolf’s participation on Imus in the Morning unraveled on Halloween 2016 — less than two weeks after Wolf confirmed the terms of his new employment agreement. On that date, Imus sent Wolf an e-mail stating that he “did not think [that Wolf] doing the sports from Florida was working.”
Imus further wrote, “[y]ou asked me if I was ok with you doing sports from Florida. I said it was. We tried it. It sucks … If you’re in the studio in New York . . . it’s terrific. Anything else is not.”
Wolf was 78 years old when he was terminated, with his last broadcast on the show conducted on November 4, 2016.
While Rosenberg is indeed younger than Wolf, he is a widely accomplished sportscaster with ties to Imus in the Morning that date to 2001. Further, Rosenberg’s first tenure with Imus was a tumultuous one, leading to his May 2005 firing after making crude remarks about a breast cancer diagnosis involving international pop star Kylie Minogue.
That led Rosenberg to Florida, where he spent four years at WAXY-AM “790 The Ticket” before moving to WQAM-AM 560, both Miami stations. At WQAM, he was fired in April 2012 following a DUI arrest. Several months later, he ended up at WMEN.
With Wolf at retirement age, what fueled his age discrimination claim? He pointed to comments made by Imus that “it was ‘time to put [Wolf] out to pasture’ and ‘shoot him with an elephant dart gun.'” Wolf also emphasized that was replaced by a sportscaster who was “decades” younger than him.
Whether or not that claim is true won’t be decided by a New York court, pending tfurther appeals or a jurisdiction shift by Wolf’s legal counsel.
Wolf made headlines in February for his arrest after allegedly vandalizing the entrance sign to his South Naples, Fla., residential community by using a tool to remove the word “plantation.” Wolf was arrested, released the same day on $5,000 bond, and faces a $1,140 repair bill for his act.