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Albunio v. City of New York

November 5, 2009


Judgments, Supreme Court, New York County (Martin Shulman, J.), entered November 8, 2007, after a jury trial, respectively, inter alia, awarding plaintiff Robert Sorrenti the principal sum of $491,706 against the City of New York and awarding his attorneys, Meenan & Associates, LLC, by Colleen M. Meenan, Esq., attorney's fees in the amount of $366,323.75, unanimously affirmed, without costs. Judgment, same court and Justice, entered November 9, 2007, after a jury trial, inter alia, awarding plaintiff Lori Albunio $579,728.83 and plaintiff Thomas Connors $588,113.45 against the City of New York, affirmed, without costs. Appeal from order, same court and Justice, entered on or about August 30, 2007, unanimously dismissed, without costs, as subsumed in the appeals from the aforesaid judgments. Judgment, same court and Justice, entered November 9, 2007, awarding attorneys' fees to counsel for plaintiffs Albunio and Connors, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Catterson, DeGrasse, Abdus-Salaam, JJ.

126981/02 & 113037/03

In support of their respective retaliation claims, plaintiffs Albunio and Connors both produced credible evidence of reductions in their supervisory responsibilities, interference with and loss of their job advancement opportunities, and other acts "reasonably likely to deter a person from engaging in protected activity" (Administrative Code of the City of New York § 8-102[7]). Both engaged in protected "opposition" activity, by advocating for plaintiff Sorrenti's transfer to the Youth Services Section (YSS) of the Deputy Commissioner of Community Affairs despite defendant James Hall's animus towards him (see Crawford v Metropolitan Govt. of Nashville and Davidson County, Tenn., ___ US ___, 129 S Ct 846, 851 [2009]). After advocating for Sorrenti, both Albunio and Connors were shut out of meetings. Albunio was told to find another command and was forced to take a position viewed as a demotion in a less desirable assignment. Connors's tours of duty were changed in ways that made "no sense" and prevented him from properly supervising staff, and when he sought to transfer out of YSS, having seen "the writing on the wall," he was not given the position he had been promised on transfer orders but instead was assigned the job of Integrity Control Officer, a position he viewed as a demotion.

Both Albunio and Connors produced evidence of a causal connection between their protected activity and the adverse employment action taken against them (see Koester v New York Blood Ctr., 55 AD3d 447, 448-449 [2008]). Both had exemplary work records before the Sorrenti affair, but, after advocating for Sorrenti, their authority was eroded, Albunio was stripped of her command, and both were forced to transfer out of YSS to positions that were viewed as demotions.

Albunio and Connors also established that they were constructively discharged by producing evidence that their working environments had been made objectively so intolerable that a reasonable person in their respective positions would have felt compelled to leave (see Gonzalez v Bratton, 147 F Supp 2d 180, 197-198 [SD NY 2001], affd 48 Fed Appx 363 [2d Cir 2002]). It was for the jury to decide whether each plaintiff's resignation was temporally too remote from the retaliatory conduct (id. at 198). It could reasonably have concluded that neither plaintiff could afford to give up valuable pension rights and would have lost valuable pension benefits by resigning before completing 20 years of service.

The jury's determination to award Sorrenti $471,706 in compensatory damages was supported by the evidence. Sorrenti's treating psychiatrist, Dr. Salvatore Ambrosino, testified that the cause of Sorrenti's major reactive depression was that he was being stereotyped as a pedophile. Sorrenti testified to the damage to his reputation and professional career caused by his being perceived as a gay man and stereotyped as a child molester. The record showed that he endured anxiety and panic attacks, experienced suicidal ideation, and took numerous medications to combat depression and anxiety. While Sorrenti had been diagnosed with a reactive depression following an incident with another police officer in 1999, the jury was entitled to credit Ambrosino's testimony that the events of 2002-2003, and in particular being stereotyped as unfit to be around children, was the cause of the current reactive depression. The award did not deviate materially from what would be reasonable compensation (CPLR 5501[c]; see Matter of Town of Hempstead v State Div. of Human Rights, 233 AD2d 451 [1996], appeal dismissed 89 NY2d 1029 [1997], lv denied 90 NY2d 807 [1997]).

The trial court's evidentiary rulings were proper and did not deprive defendants of their right to a fair trial.

The awards of attorney's fees to plaintiffs' attorneys were not excessive (see e.g. Gonzalez v Bratton, 147 F Supp 2d at 211-212; Wahad v Coughlin, 870 F Supp 506 [SD NY 1994]). All concur except Catterson, J. who dissents in part in a memorandum as follows:

CATTERSON, J. (dissenting in part)

Because I do not believe that, prior to her transfer and purported demotion, Captain Lori Albunio engaged in the protected activity required to make out a retaliation claim, I must respectfully dissent in part.

This case arises from the events surrounding an unsuccessful application by former Police Sergeant Robert Sorrenti for a position at the New York City Police Department's Youth Services Section (hereinafter referred to as "YSS"). The following facts are undisputed: Lori Albunio graduated from the Police Academy in 1985 at the age of 21. Over the next 15 years she received several promotions, rising to the rank of captain in 1999. In February 2001, she was assigned as Commanding Officer of YSS, a subcommand of the Deputy Commissioner of Community Affairs. Inspector James Hall became Albunio's supervisor in early 2002.

In July or August 2001, Albunio received an application from Sergeant Sorrenti for a position at YSS. Although there was not a job opening at the time, Albunio, accompanied by Administrative Sergeant Steven Gilmartin, conducted a standard interview of Sorrenti and found him qualified for the position. His prior evaluations were "very, very good," and he came "highly recommended" for the position. Albunio rated him as having "above average potential."

When a vacancy opened up in April 2002, Albunio submitted a request to Hall for Sorrenti to fill that vacancy. Although Hall's approval of these requests was usually a formality, he wished to re-interview Sorrenti and to interview an additional officer, a Sergeant Nicholson, for the ...

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