Serrins & Associates LLC, New York (Corey M. Stein of
counsel), for appellant.
Limmiatis, New York, for respondents.
J.P., Renwick, Saxe, Feinman, Gesmer, JJ.
Supreme Court, New York County (Carol R. Edmead, J.), entered
on or about August 4, 2015, which granted defendants'
CPLR 3211(a)(7) motion to dismiss the complaint, unanimously
affirmed, without costs.
failed to allege facts sufficient to state an employment
discrimination claim under either the New York State or New
York City Human Rights Law (HRL) based on his "having
been convicted of one or more criminal offenses"
(Executive Law § 296; Administrative Code of City of
NY § 8-107). The State and City HRLs incorporate
article 23-A of the Correction Law, which prohibits denial of
employment to an individual "by reason of the
individual's having been previously convicted of one or
more criminal offenses, or by reason of a finding of lack of
good moral character' when such finding is based upon the
fact that the individual has previously been convicted of one
or more criminal offenses" (Corr Law § 752;
Executive Law § 296; Administrative Code §
alleges that defendant Consolidated Edison, Inc. (Con Ed)
denied him employment based on his 2002 perjury conviction,
and prior assault-related convictions, which subsequently
were vacated, in connection with the assault in 1997 of Abner
Louima by New York City police officers who arrested and
transported Louima to a police precinct, where he was beaten
and sodomized in a bathroom. Plaintiff was convicted of
participating in and conspiring with other officers to
participate in the assault on Louima, but his convictions
were vacated in 2002 on grounds of ineffective assistance of
counsel (see United States v Schwarz, 283 F.3d 76');">283 F.3d 76
[2d Cir 2002]). Upon retrial, he was tried on two of the
original assault counts as well as two counts of perjury
based on testimony given in the first trial. Plaintiff was
convicted of one count of perjury; the jury deadlocked on the
remaining three counts.
complaint contains no allegations that show that plaintiff
was terminated under circumstances giving rise to an
inference of discrimination based on his perjury conviction
(see Melman v Montefiore Med. Ctr., 98 A.D.3d 107,
113 [1st Dept 2012]), rather than due to the disruption of
Con Ed's workplace and its employee and customers
relations stemming from his perceived involvement in the
underlying assault. Con Ed hired plaintiff after he disclosed
the conviction on his employment application. The allegations
relevant to any discriminatory intent state only that shortly
after he was hired, one Con Ed construction supervisor told
plaintiff that people were "talking, " that
everyone "downstairs" knew who he was, and that his
hiring "blew up the building." The complaint
alleges, "Upon information and belief, " without
elaborating, that the supervisor was referring to
plaintiff's perjury conviction (and vacated convictions),
but the allegation is speculative and therefore insufficient
(see Board of Mgrs. of the Gansevoort Condominium v 325
W. 13th, LLC, 121 A.D.3d 554');">121 A.D.3d 554 [1st Dept 2014]).
complaint also alleges that Con Ed's director of employee
and labor relations advised plaintiff that he was being
terminated due to "potential disruption of business
operations" and "damage to the Company's
reputation" if he continued in its employ. There is no
mention of his perjury conviction or any associated
dishonesty, or any allegation that anyone mentioned the
Louima case. When plaintiff himself commented that he was
being terminated due to his "convictions, " the
director allegedly did not deny it, but under these
circumstances, his silence alone does not suffice to show
that plaintiff was terminated on account of his perjury
conviction (see Van Houdnos v Evans, 807 F.2d 648,
655 [7th Cir 1986]; see also Menard v First Sec. Servs.
Corp., 848 F.2d 281, 288 [1st Cir 1988]).
assault-related convictions on which plaintiff was retried,
and the jury deadlocked, are not covered by article 23-A,
since the article applies only to individuals who
"previously have been convicted, " and the vacatur
of plaintiff's prior assault convictions rendered those
convictions nullities (Poland v Arizona, 476 U.S.
147, 152 ; Matter of Barash, 20 N.Y.2d 154,
157-158 ; People v Dozier, 163 A.D.2d 220');">163 A.D.2d 220 [1st
Dept 1990], affd 78 N.Y.2d 242');">78 N.Y.2d 242 ). Although
plaintiff maintains that he remains "previously...
convicted, " we reject this interpretation since it
would permit an employer to deny employment based on a
vacated conviction in reliance on the statutory exceptions
(see Correction Law §§ 752; 753).
legislative intent is to rehabilitate, and therefore avoid
recidivism by, "ex-offenders, " not those whose
convictions have been vacated, who generally do not need
rehabilitation and are not at risk of recidivism (see
Matter of Bonacorsa v Van Lindt, 71 N.Y.2d 605, 611-612
). "Although ex-offenders were urged when released
from prison to find employment as a part of their
rehabilitation, they had great difficulty in doing so because
of their criminal records.... Failure to find employment...
injured society as a whole by contributing to a high rate of
recidivism... Thus, [article 23-A] sets out a broad general
rule that employers and public agencies cannot deny
employment or a license to an applicant solely based on
status as an ex-offender" (id. at 611; see
Matter of Meth v Manhattan & Bronx Surface Tr. Operating
Auth., 134 A.D.2d 431');">134 A.D.2d 431 [2d Dept 1987]).
acknowledges that he cannot rely on sections of the State and
City HRLs that render it unlawful to discriminate against an
individual based on an arrest or criminal accusation that was
terminated in the individual's favor (Executive Law
§ 296; Administrative Code § 8-107),
because his convictions, upon vacatur, were remanded for a
new trial, and the proceeding did not otherwise result in
acquittal or dismissal of all charges against him
(see CPL 160.50).
the complaint does not allege any facts from which it can
reasonably be inferred that plaintiff was perceived to have
been convicted of the assault of Louima, assuming
"perceived" convictions are protected under article
23-A. In fact, while his notoriety may well be from his
perceived involvement in the assault, it is not necessarily
from any perceived conviction. There are no allegations that
suggest that Con Ed believed that plaintiff had been
convicted of a crime against Louima.
does not challenge the dismissal of the complaint as against
defendant Consolidated Edison Company of New York, Inc.
(CEI), the parent company of Con Ed, on the additional ground
that the complaint does not allege that CEI hired him or had
any control over Con Ed's employment decisions so as to
warrant holding it liable for Con Ed's acts. Accordingly,
we affirm the dismissal of the complaint as against CEI on
this additional ground (see ...