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RIVERA v. HERTZ CORP.

September 11, 1997

CARMEN M. PEREZ RIVERA and CARLOS CHINEA DIAZ, Plaintiffs,
v.
THE HERTZ CORPORATION, Defendant.



The opinion of the court was delivered by: JONES

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 In this civil rights action, plaintiffs Carmen M. Perez Rivera ("Perez") and her husband Carlos Chinea Diaz ("Chinea"), both of whom hail from Puerto Rico, allege that defendant, the Hertz Corporation ("Hertz"), refused to rent them a car based on their national origin, forcing them to use another rental agency.

 Plaintiffs sue pursuant to 42 U.S.C. § 1981, New York State's Executive Law § 290 et seq. (codified as the "New York Human Rights Law" or the "NYHRL"), New York State's Civil Rights Law §§ 40 & 41, breach of contract, and intentional and negligent infliction of emotional distress.

 Pending is defendant's motion pursuant to Fed.R.Civ.P. 56 for summary judgment on all claims.

 Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To grant a motion for summary judgment, the Court must determine that a reasonable fact finder could not find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Thus, the moving party bears the burden of proving the absence of a genuine issue of material fact. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If the moving party meets this burden, the burden shifts to the non-moving party to present evidence of specific facts showing that a genuine issue exists. Anderson, 477 U.S. at 256.

 Since intent is in dispute in this discrimination case, the Court treats this summary judgment motion with special caution. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (explaining that direct evidence of intent is "rarely found" in discrimination context).

 The threshold issue here is whether Perez has standing to bring this case. Defendant argues that Hertz rejected Chinea's efforts to rent a car, not those of Perez, and that therefore Perez has no claim here. See Boykin v. Bloomsburg Univ. of Penn., Inc., 893 F. Supp. 409, 419 (M.D. Pa. 1995) ("Only persons actually deprived of their civil rights can redress such rights in a civil rights action."), aff'd, 91 F.3d 122 (3d Cir. 1996), cert. denied, 117 S. Ct. 739 (1997). Perez, however, has presented evidence suggesting that she, herself, was prevented from renting a Hertz car. Specifically, there is evidence demonstrating that after Hertz rejected her husband's attempt to rent, Perez showed a Hertz rental agent her license in an attempt to secure a car. Additionally, Perez claims that a Hertz manager and supervisor, Eugene Ceriello ("Ceriello"), told her that Hertz would not rent to her family because they were Puerto Rican. Such actions prevented Perez from completing Hertz' application process, thereby precluding her from completing a contract to rent; as such, they give her standing to complain that her civil rights were violated and that Hertz breached any contract it might have had with her regarding the desired rental car. *fn1"

 The Court proceeds to discuss each of plaintiffs' claims.

 1. Section 1981 and The New York Executive Law

 Plaintiffs claim that defendant violated 42 U.S.C. § 1981 and N.Y. Exec. Law § 290 et seq. (codified as the "New York Human Rights Law" or the "NYHRL").

 The standards governing claims pursuant to section 1981 and the NYHRL are identical. Ayton v. Lenox Hill Hosp., 1997 U.S. Dist. LEXIS 122, 93 Civ. 6601, 1997 WL 10000, at **1-2 & n.1 (S.D.N.Y. Jan. 10, 1997) (citing Tomka v. Seiler, 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995)).

 These standards prohibit discrimination based on race by both public and private entities. See Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988) (stating that section 1981 does not require "state action"). ...


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