Opinion
14868 Index No. 24919/20E Case No. 2021-01234
12-16-2021
Sherrina BRADSHAW, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.
Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered February 26, 2021, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the causes of action for gender discrimination, hostile work environment, and retaliation, unanimously affirmed, without costs.
Plaintiff's claims for gender discrimination, hostile work environment, and retaliation under the New York State Human Rights Law ( Executive Law § 296 ) and New York City Human Rights Law (Administrative Code of the City of New York § 8-107) are precluded by the doctrine of res judicata because the claims could have been brought in her prior federal action, which alleged gender discrimination under 42 USC § 1983 (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ; see also Abe v. New York Univ., 169 A.D.3d 445, 449, 94 N.Y.S.3d 17 [1st Dept. 2019], lv dismissed 34 N.Y.3d 1089, 116 N.Y.S.3d 188, 139 N.E.3d 846 [2020] ). The allegations in plaintiff's state court complaint are, in fact, nearly identical to those contained in her federal court complaint, since her claims arise under the same operative facts.
Plaintiff acknowledges that her claim for disability discrimination is barred by the election of remedies doctrine, as she elected to first file a New York State Division of Human Rights (DHR) complaint alleging disability discrimination. We find that her claims for gender discrimination, hostile work environment, and retaliation are also barred by that doctrine (see Benjamin v. New York City Dept. of Health, 57 A.D.3d 403, 403–404, 870 N.Y.S.2d 290 [1st Dept. 2008], lv dismissed 14 N.Y.3d 880, 903 N.Y.S.2d 335, 929 N.E.2d 398 [2010] ). Although plaintiff's state court complaint asserts additional claims of gender discrimination, it is still "based on the same alleged discriminatory conduct," allegedly leading to her termination, as asserted in the DHR complaint ( id. at 404, 870 N.Y.S.2d 290 ; see Craig–Oriol v. Mount Sinai Hosp., 201 A.D.2d 449, 449–450, 607 N.Y.S.2d 391 [2d Dept. 1994], lv denied 85 N.Y.2d 804, 626 N.Y.S.2d 756, 650 N.E.2d 415 [1995] ). Indeed, plaintiff expressly alleged in the DHR complaint that defendant engaged in retaliation against her and created a hostile work environment.