Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered January 27, 2010.
Stevens v New York City Tr. Auth.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 30, 2011
PRESENT: RIOS, J.P., WESTON and GOLIA, JJ
The order, insofar as appealed from, denied defendants' motion to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of defendants' motion seeking summary judgment dismissing the complaint is granted, and the branch of defendants' motion seeking to dismiss the complaint is denied as academic.
Plaintiff, a per diem hearing officer, commenced this action against his former employer, the New York City Transit Authority, Transit Adjudication Bureau (Transit Authority), as well as against Dorothy Samuel and John A. Risi, after the Transit Authority had declined to renew his 2008 yearly retainer agreement. Plaintiff seeks to recover the sum of $25,000 for defamation, age discrimination, breach of contract, interference with a contractual relationship, and failure to follow administrative policies and procedures. Defendants appeal from so much of the Civil Court's order as denied their motion to dismiss the complaint or, in the alternative, for summary judgment.
As a preliminary matter, we note that the individual defendants waived the affirmative defense that plaintiff had failed to effect service of process upon them as they did not move to dismiss the complaint on the ground of improper service within 60 days after service of the answer (see CPLR 3211 [e]; JP Morgan Chase Bank v Munoz, 85 AD3d 1124, 1126-1127 ; Peterson v JJ Real Estate, Inc., 82 AD3d 859, 860 ).
The Civil Court should have granted the branch of defendants' motion for summary judgment seeking to dismiss the defamation cause of action. "The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se'" (Salvatore v Kumar, 45 AD3d 560, 563 , quoting Dillon v City of New York, 261 AD2d 34, 38 ; see Epifani v Johnson, 65 AD3d 224  [slander]). In this case, defendants submitted sworn statements from the individual defendants, in which they both unequivocally denied that they had made any slanderous remarks, thereby demonstrating defendants' prima facie entitlement to judgment as a matter of law (see Snyder v Sony Music Entertainment, 252 AD2d 294, 298 ; Barber v Daly, 185 AD2d 567, 569 ). The burden then shifted to plaintiff "to come forward with proof in evidentiary form to show that a bona fide, triable issue of fact existed as to whether the slanderous statement[s] [were] actually made and published" (Snyder, 252 AD2d at 298). Here, plaintiff's opposition failed even to address this branch of defendants' motion for summary judgment.
Defendants were also entitled to summary judgment dismissing plaintiff's cause of action based on age discrimination. Plaintiff did not file a complaint with the Equal Employment Opportunity Commission and is, therefore, jurisdictionally precluded from pursuing his age discrimination action under federal discrimination statutes (see Betanzos v Kinney Sys., Inc., 113 F3d 1229  [table; text at 1997 WL 260061, 1997 US App LEXIS 16428 (1997)]). In any event, the standards of proof under federal and New York discrimination laws are identical (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 ; Ferrante v American Lung Assn., 90 NY2d 623, 629 ).
To establish a prima facie case of age discrimination under New York law, a plaintiff must demonstrate that: (1) he is a member of a class protected by the New York State Human Rights Law; (2) he was actively or constructively discharged; (3) he was qualified to hold the position from which he was terminated; and (4) the discharge occurred under circumstances giving rise to an inference of age discrimination (Stephenson, 6 NY3d at 270; see generally Silk v New York Inst. of Tech., 1997 WL 231150, 1997 US Dist LEXIS 6220 [SD NY 1997]). Upon such a showing, "the burden then shifts to the defendant to rebut [the] plaintiff['s] prima facie case of discrimination with a legitimate reason for the firing" (Stephenson, 6 NY3d at 270). Once the defendant presents nondiscriminatory reasons for the plaintiff's discharge, the plaintiff "must show by a preponderance of the evidence that [the] defendant's reasons are pretextual" (id. at 271, citing McDonnell Douglas Corp. v Green, 411 US 792, 802-806 ).
In this case, defendants made a prima facie showing that there was no age discrimination. Although plaintiff, a 74-year-old male, was a member of a protected class when the Transit Authority declined to renew his contract, he was nevertheless shown to be unqualified for the hearing officer position. Defendants demonstrated that plaintiff did not exhibit a basic understanding of procedural and substantive issues during adjudicative hearings. He also required constant supervision and numerous revisions of his written work. Written evaluations of plaintiff's work, dated July, November and December 2007, reflect his unsatisfactory performance and his inability to improve throughout the year. Plaintiff completed relatively few daily hearings compared to similarly situated colleagues, rendering him one of the least productive hearing officers on the 2007 roster. In opposition to this showing, plaintiff failed to raise a triable issue of fact. Thus, defendants were entitled to summary judgment dismissing this cause of action.
Plaintiff's breach of contract action lacks merit because defendants established that the Transit Authority had never agreed to retain plaintiff's services for the 2008 roster, as no representative of the Transit Authority had ever signed a 2008 retainer agreement (see Scheck v Francis, 26 NY2d 466, 469-470 ; Lost Cr. Assoc. v Marine Midland Bank, 293 AD2d 719, 720 ). With respect to the remaining causes of action, defendants similarly ...