Opinion
Index No. 501349/2023 Motion Seq: 3
05-06-2024
DANIELLE AMENDOLA, Plaintiff, v. THE CITY OF NEW YORK AND DR. LEON EISIKOWITZ, INDIVIDUALLY, Defendants.
Unpublished Opinion
PRESENT: HON. GINA ABADI, J.S.C.
DECISION AND ORDER
GINA ABADI, JUDGE
At an IAS Term, City Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York, on the 6th day of May, 2024.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers
NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed ..............................
21-31
Opposing Affidavits (Affirmations) .............................
33-34
Reply Affidavits (Affirmations) ................................
35-37
Plaintiffs Surreply ..........................................
40
Defendants' Sur-Surreply .....................................
41
Upon the foregoing cited papers, and after oral argument, in this action to recover damages under the New York City Human Rights Law ("City HRL"), defendants City of New York (the "City") and Dr. Leon Eisikowitz, individually ("Dr. Eisikowitz" and collectively with the City, "defendants"), jointly move, pre-answer, for an order, pursuant to CPLR §§3211 (a) (5) and (7), dismissing the entirety of the amended complaint, dated October 18, 2023 ("Amended Complaint" or "AC") of plaintiff Danielle Amendola ("plaintiff')- While generally opposing defendants' motion, plaintiff does not object to the dismissal, as time-barred under CPLR § 3211 (a) (5), of the portion of the Amended Complaint which is predicated on the alleged acts/omissions which preceded May 30, 2019. This leaves for the Court's consideration the viability of plaintiffs claims under CPLR § 3211 (a) (7), insofar as such claims accrued on and after May 30, 2019 ("limitations period").
Memorandum of Law in Opposition to Defendants['] Motion to Dismiss Plaintiff's [Amended] Complaint, dated Feb. 23, 202[4], Point 1 (NYSCEF Doc No. 33).
The Court assumes the parties' familiarity with the underlying facts, procedural history, and the issues presented, to which the Court refers only as necessary to explain its decision. See e.g. Longe v City of NY, 802 Fed.Appx. 635, 636 (2d Cir 2020).
Plaintiff served with the NYPD as a full-time, non-probationary police officer from January 8, 2014 to July 12, 2023 (for a total of approximately 954 years). From June 17, 2019 to July 12, 2023, she was assigned to the 73rd precinct in the East New York section of Brooklyn, New York. Her one-way commute to the 73rd precinct from her home in Nassau County was 55 to 75 minutes one way.
On January 28, 2020, plaintiff underwent spinal fusion surgery at the L5-S1 level for a non-LOD injury. On October 1, 2020, she returned to her command at the 73rd precinct. On October 19, 2020, she was seen by defendant Dr. Eisikowitz who, after reviewing her post-operative condition, placed her on restricted duty; namely, no patrol or enforcement (whether in an RMP or on foot); no contact with prisoners; and no physical labor (such as lifting heavy items in excess of 15 pounds, prolonged sitting, standing, climbing stairs, and delivery/pick-up of mail). On November 30, 2020, plaintiff submitted to the Reasonable Accommodation Unit (the "RA Unit") of the NYPD's Equal Employment Opportunity' Division ("EEOD") her request for reasonable accommodation ("RA") on account of her post-operative orthopedic disabilities. She proposed that her RA I take the form of her temporary transfer to another NYPD command that was within a 30-minute one-way commute from her home. She explained that her commute to her then-current NYPD command at the 73rd precinct caused her to suffer severe numbness in her legs and had put a strain on her back. Plaintiffs RA request was cosigned by her supervising sergeant as "recommending approval," and was supported by accompanying medical documentation.
On January 19, 2021, the RA Unit, after conferral with the NYPD's Medical Division, "recommended a transfer[] of [plaintiff] to a closer command due to her medical condition." For reasons to be explored in discovery, however, the RA Unit's recommendation was not co-signed by its Team Leader until March 16, 2021.
Meanwhile, plaintiff, on March 3, 2021, withdrew her RA request, explaining that she was then "being accommodated by [her] precinct." The following day, March 4, 2021, the EEOD "administratively closed [her] request" for RA.
Plaintiff alleges that following her submission of an RA request on November 30, 2020, as well as following her withdrawal of it on March 3, 2021, she was told that: (1) "the NYPD could not accommodate her and that the 'accommodated' position, if one did arise, could be worse [for her] than her current assignment [at the 73rd precinct]"; (2) "there were no positions [at the NYPD] where she could be accommodated [at]"; (3) "she would I be terminated based on her disability"; and (4) "she should resign." (AC, ¶¶ 94, 105, 195, 197). According to plaintiff, she withdrew her RA request "out of fear that the [defendants would further retaliate against her." (AC, ¶ 104).
After withdrawing her RA request, plaintiff continued on restricted duty at the 73rdprecinct until July 14, 2021. The 73rd precinct accommodated plaintiff by permitting her, while at work, to lie down on a cot in the back of the precinct. (AC, ¶¶ 97-98).
On July 14, 2021, plaintiff returned to full duty at the 73rd precinct. She remained on hill duty at the 73rd precinct for the ensuing 12 months until July 9, 2022. According to plaintiff, "[p]rior to returning to full duty, [she] was threatened on a monthly basis with termination due to her disability if she did not return to full duty." (AC, ¶ 112). Further, I after returning to full duty, plaintiff "received notice that she could transfer to a different command," which "transfer [if accepted] would have caused [her] to travel further to work that the . .. [commute] she had to the 73rd [p]recinct." (AC, ¶¶ 126-127).
Without an accommodation at work, plaintiff suffered "numbness in her back and neck if she [wore] her gun belt for prolonged periods of time," and she "regularly [suffered from] shooting pain in her neck[,] which [was] debilitating." (AC, ¶¶ 126-127). "Despite being disabled, [p]laintiff was able to perform the essential functions of her employment with reasonable accommodation." (AC, ¶ 191).
Eventually, plaintiff was forced to retire from the NYPD on July 12, 2023 because I of defendants' alleged failure to accommodate her orthopedic disabilities. (AC, ¶¶ 154, 206).
Plaintiff's causes of action, as pleaded in the Amended Complaint, cluster into four general groups: (1) failure to provide reasonable accommodation and failure to engage in a cooperative dialogue (Count IV); (2) disability discrimination, hostile work environment, and unlawful retaliation (Counts I, II, and V, respectively); (3) supervisory liability of the City based on alleged violations of City HRL § 8-107 (13) (b) by Dr. Eisikowitz (Counts III and VI); and (4) general liability for damages under City HRL § 8-502 (a) (Count VII). The Amended Complaint further demands an award of punitive damages as against both defendants.
Although Counts III and VI name both defendants, the cited statute imposes liability only on the employer (rather than also on the employee) for discriminatory conduct by an employee, agent, or independent contractor, and does not extend to employees, such as Dr. Eisikowitz.
Standard of Review
Employment discrimination claims under the City HRL are reviewed under a notice pleading standard, in which "a plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds." Vig v New York Hairspray Co., L.P., 67 A.D.3d 140, 145 (1st Dept 2009) (internal citations and quotation marks omitted). Further, on a motion pursuant to CPLR § 3211 (a) (7) to dismiss for failure to state a cause of action, "the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every' possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Tsinias Enters. Ltd. v Taza Grocery, Inc., 172 A.D.3d 1271, 1272 (2d Dept 2019) (internal quotation marks omitted).
Discussion
1. Failure to Provide Reasonable Accommodation/Failure to Engage in Cooperative Dialogue Plaintiff has sufficiently pleaded that defendants failed to accommodate her I disability under the City HRL. The Amended Complaint adequately alleges that defendants were aware of plaintiffs orthopedic disabilities, but that they failed to engage her in a good-faith interactive process to assess her needs and to seriously consider (rather than merely review on paper) her request for a shorter commute to work. See Aykac v City of NY, 221 A.D.3d 494,495 (1 st Dept 2023); Estate of Benitez v City of NY, 193 A.D.3d 42, 47-49 (1st Dept 2021). These allegations, coupled with plaintiffs allegation that she would have continued serving with NYPD if her request for reasonable accommodation was actually granted (rather than merely on paper), are sufficient to state a cognizable claim for failure to accommodate her disability and to engage in a cooperative dialogue under the City HRL. See Aykac, 221 A.D.3d at 495; Watson v Emblem Health Seres.,158 A.D.3d 179, 182 (1st Dept 2018).
2. Disability Discrimination. Hostile Work Environment, and Unlawful Retaliation
Accepting the facts as alleged in the Amended Complaint as true, and affording plaintiff the benefit of every possible favorable inference, plaintiff sufficiently alleges disparate treatment under circumstances giving rise to an inference of discrimination based I on her disability, a hostile work environment, and retaliation in violation of the City HRL. See Perez v Y&M Transp. Corp., 219 A.D.3d 1449, 1451 (2d Dept 2023); Ayers v Bloomberg, L.P., 203 A.D.3d 872, 874 (2d Dept 2022); Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999, 1004 (2d Dept 2021); Golston-Green v City of NY, 184 A.D.3d 24, 42 (2d Dept 2020); Brown v City of NY, Sup Ct, Kings County, June 15, 2023, Abadi, J., index No. 508124/22, NYSCEF Doc No. 41).
3. Supervisory Liability Based on Alleged Violations of City HRL § 8-107(13)(b)
City HRL § 8-107(13)(b) provides that "[a]n employer shall be liable for an unlawful discriminatory practice based upon the [proscribed] conduct of an employee or agent . . . only where: (1) [t]he employee or agent exercised managerial or supervisory responsibility; or (2) [t]he employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or (3) [t]he employer should have known of the employee's or agent's discriminatory conduct and failed to exercise I reasonable diligence to prevent such discriminatory conduct." See generally Zakrzewska v New School, 14 N.Y.3d 469, 478-479 (2010), modified on other grounds by Police Benevolent Assn, of City of NY, Inc. v City of NY, 40 N.Y.3d 417 (2023).
Here, however, the Amended Complaint is devoid of any factual allegations that Dr. Eisikowitz possessed or exercised managerial or supervisory responsibility over plaintiff or anyone else. Relatedly, the Amended Complaint has failed to allege any facts to show that the City knew or should have known about Dr. Eisikowitz's alleged misconduct or that plaintiff complained to anyone about him. See Lum v Consolidated Edison Co. of NY, Inc., 2021 NY Slip Op 32318(U), *4 (Sup Ct, NY County 2021), aff'd as modified 209 A.D.3d 434 (1st Dept 2022); see also Russell v New York Univ., 204 A.D.3d 577, 579 (1st Dept 2022). Plaintiff''s allegation (in AC, ¶¶ 9-10) that Dr. Eisikowitz, as "a Deputy Surgeon," was "five ranks higher than [p]laintiff" within NYPD is insufficient to satisfy this requirement. See Greenidge v City of NY, 2023 NY Slip Op 33506(U), *7 (Sup I Ct, NY County 2023).
4. General Liability for Damages Under City HRL § 8-502(a)
Plaintiffs final cause of action for violation of City HRL § 8-502 (a) ("Civil Action by Persons Aggrieved by Unlawful Discriminatory Practices) does not exist separately from the causes of action brought under the City HRL. See Girard v Vnu, Inc., 2004 NY, Slip Op 30396 (U), *10 (Sup Ct, NY County 2004).
Plaintiffs demand for punitive damages as against the City (in the "Wherefore" clause, ¶ "c.") is contrary to the prevailing law. See Krohn v New York City Police Dept., 2 N.Y.3d 329, 338 (2004).
Conclusion
Accordingly, it is
ORDERED that defendants' pre-answer motion to dismiss is granted to the extent I that:
(1) all of plaintiffs causes of action, insofar as they are predicated on the alleged ' acts/omissions which preceded May 30, 2019, are dismissed as time-barred under CPLR §3211 (a) (5);
(2) plaintiff s causes of action sounding in: (i) strict liability in alleged violation of City HRL § 8-107 (13) (b) as predicated on disability discrimination and, separately, on retaliation; and (ii) alleged violation of City HRL § 8-502 (a) (as pleaded in Counts III and VI, as well as in Count VII of the Amended Complaint, respectively), are each dismissed for failure to state a claim under CPLR § 3211 (a) (7); and
(3) plaintiffs demand for punitive damages as against the City is stricken; and the remainder of defendants' motion is denied; and it is further
ORDERED that, pursuant to CPLR § 3211(f), defendants shall answer the extant portions of the Amended Complaint within ten (10) calendar days after electronic service of this Decision and Order with notice of entry by plaintiffs counsel on the Corporation Counsel; and it is further, ORDERED that plaintiffs counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on the Corporation Counsel and to electronically file an affidavit of service thereof with the Kings County Clerk.
The foregoing constitutes the Decision and Order of this Court.