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Kassapian v. City of New York

Supreme Court of New York, Second Department

November 15, 2017

Susan Kassapian, etc., appellant,
v.
City of New York, et al., respondents. Index No. 506287/13

          Argued - September 15, 2017

         D53875 M/htr

          Stewart Lee Karlin Law Group, P.C., New York, NY (Daniel E. Dugan of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Devin Slack and Jeremy W. Shweder of counsel), for respondents.

          WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN SANDRA L. SGROI, JJ.

          DECISION & ORDER

         Appeal from an order of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), dated March 10, 2015. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiffs cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.

         ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provisions thereof granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age, and unlawful retaliation for complaints of sexual harassment, in violation of Administrative Code of the City of New York § 8-107, and substituting therefor provisions denying those branches of the motion, and (2) by deleting the provision thereof denying the plaintiff s cross motion pursuant to CPLR 3025(b) for leave to amend the complaint, and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, with costs to the plaintiff.

         The plaintiff was employed as an Administrative Law Judge (hereinafter ALJ) with the New York City Department of Consumer Affairs (hereinafter DCA). She commenced this action against the City of New York, DCA, and five DCA employees, alleging causes of action to recover damages for (1) violation of her free speech and petition rights under the New York State Constitution, article I, §§ 8 and 9; (2) employment discrimination on the basis of sex and age in violation of the New York City Human Rights Law (see Administrative Code of City of NY § 8-107; hereinafter NYCHRL); and (3) unlawful retaliation in violation of the NYCHRL for complaints of sexual harassment and age discrimination. The complaint alleged that the plaintiff and other ALJs spoke out internally within the agency and externally to public officials and the press about an alleged DCA practice of improperly pressuring the ALJs to issue recommended decisions in favor of the agency and to impose maximum fines. The plaintiff was allegedly demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment. The complaint also alleged the existence of a pattern of age discrimination within the agency. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC § 1983 in the event her state constitutional causes of action were dismissed. The Supreme Court granted the defendants' motion and denied the plaintiff s cross motion. The plaintiff appeals.

         On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Leon v Martinez, 84 N.Y.2d 83, 87-88; Thompson Bros. Pile Corp. v Rosenblum, 121 A.D.3d 672, 673). Moreover, the court may consider affidavits submitted by a plaintiff to remedy any defects in the complaint (see Rushaid v Pictet & Cie, 28 N.Y.3d 316, 327; Chanko v American Broadcasting Cos. Inc., 27 N.Y.3d 46, 52). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38; see EBCI, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19).

         Here, the Supreme Court erred in granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]). The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL (see Nelson v HSBC Bank USA, 87 A.D.3d 995, 999). Further, in opposition to the defendants' motion, the plaintiff submitted an affirmation of a separate coworker detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v New York City Hous. Auth., 61 A.D.3d 62, 80), which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 A.D.3d 1050, 1051).

         Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiffs demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]; Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 40; cf. Askin v Department of Educ. Of the City of N.Y., 110 A.D.3d 621, 621-622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient (see Rollins v Fencers Club, Inc., 128 A.D.3d 401, 402).

         The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff s complaints of sexual harassment. Under the NYCHRL, the retaliatory act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity" (Administrative Code of City of NY § 8-107[7]; see Brightman v Prison Health Serv., Inc., 108 A.D.3d 739, 739). The allegations that, following the plaintiffs complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff s complaints of sexual harassment in violation of the NYCHRL (see Ananiadis v Mediterranean Gyros Prods., Inc., 151 A.D.3d 915, 920; Fletcher v Dakota, Inc., 99 A.D.3d 43, 51-52; Williams v New York City Hous. Auth., 61 A.D.3d at 71). However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

         The Supreme Court properly granted dismissal of the cause of action alleging violations of the State Constitution on the ground that the plaintiff failed to serve a notice of claim (see General Municipal Law §§ 50-e, 50-i; 423 S. Salina St. v Syracuse, 68N.Y.2d474, 482; East End Resources, LLC v Town of Southold Planning Bd., 135 A.D.3d 899, 902; Bidnick v Johnson, 253 A.D.2d 779, 780; Gorman v Sachem Cent. School Dist., 232 A.D.2d 452, 453). Contrary to the plaintiffs contention, the action does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of the plaintiff, and the disposition of the claim will not directly affect or vindicate the rights of others (see 423 S. Salina St. v Syracuse, 68 N.Y.2d at 493; Mills v County of Monroe, 59 N.Y.2d 307, 312; Sager v County of Sullivan, 145 A.D.3d 1175, 1177). Further, although the complaint named the individual defendants in their individual capacities, it alleged retaliation by them as part of their employment, and thus, the notice of claim requirement applied (see Miller v City of New York, 89 A.D.3d 612; Hale v Scopac, 74 A.D.3d 1906, 1907; Tesciuba v Koch, 215 A.D.2d 222; Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 526).

         The Supreme Court improvidently exercised its discretion in denying the plaintiffs cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC § 1983, for which a notice of claim is not required (see Felder v Casey,487 U.S. 131, 153; Blake v City of New York,148 A.D.3d 1101, 1105). In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Tirpack v 125 N. 10, LLC,130 A.D.3d 917, 919). Given the state constitutional causes of action included in the original complaint, the defendants would not be prejudiced or surprised by the assertion of a First Amendment cause of action. Further, the proposed amended complaint sufficiently alleged that the plaintiff and other ALJs spoke out, both internally in the agency and externally, as citizens on a matter of public concern (see Lane v Franks, __US __, 134 S.Ct. 2369, 2378-2380; Garcetti v Ceballos,547 U.S. 410, 418, 424; Givhan v Western Line Consol. School Dist, 439 U.S. 410, 415-416; Matthews v City of New York, 779 F.3d 167, 174 [2d Cir]; Sousa v Roque,578 F.3d 164, 174 [2d Cir]; Freitag v Ayers,468 F.3d 528, 545 [9th Cir]). As with unlawful retaliation claims under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question 'would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights'" (Nixon v Blumenthal, 409 Fed.Appx 391, 392 [2d Cir], quoting Zelnik v Fashion Inst. of Tech., 464 F.3d 217, 225 [2d Cir]). The allegations that the plaintiff was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently ...


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