Opinion
11825 Index 156466/17
07-16-2020
David James MURPHY, Plaintiff–Appellant, v. CITIGROUP GLOBAL MARKETS, INC., et al., Defendants–Respondents.
David James Murphy, appellant pro se. Proskauer Rose LLP, New York (Joseph Baumgarten of counsel), for respondents.
David James Murphy, appellant pro se.
Proskauer Rose LLP, New York (Joseph Baumgarten of counsel), for respondents.
Gische, J.P., Kapnick, Webber, Kern, Gonza`lez,JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about April 12, 2019, which granted defendants' CPLR 3211 motion to dismiss the complaint and denied plaintiff's cross motion to compel arbitration, unanimously affirmed, without costs.
The motion court properly dismissed plaintiff's discrimination claims as precluded by res judicata (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ; Fajemirokun v. Dresdner Kleinwort Wasserstein Ltd., 27 A.D.3d 320, 321–322, 812 N.Y.S.2d 478 [1st Dept. 2006], lv denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243 [2006] ). The discrimination claims which plaintiff seeks to assert in the first two causes of action of the instant complaint "aris[e] out of the same transaction or series of transactions" as the claims resolved in the prior arbitration between himself and the corporate defendants herein ( O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ; Carol v. Madison Plaza Apts. Corp., 137 A.D.3d 453, 453, 25 N.Y.S.3d 875 [1st Dept. 2016] ). Plaintiff offers no response to the defense of res judicata, other than that his discrimination claims were not arbitrable. Plaintiff, however, has failed to make any showing in support of the non-arbitrability of those claims at the time they were decided (see Sphere Drake Ins. Ltd. v. Clarendon Natl. Ins. Co., 263 F.3d 26, 31 [2d Cir.2001] ; McCaddin v. Southeastern Marine Inc., 567 F. Supp. 2d 373, 379 [E.D. N.Y.2008] ).
Effective October 11, 2019, well after the facts of plaintiff's discrimination claims were adjudicated in arbitration, the New York State Discrimination Laws were amended to prospectively prohibit mandatory arbitration clauses, except where inconsistent with federal law (CPLR 7515 ). There was no such prohibition in effect at the time of plaintiff's arbitration.
Plaintiff's third cause of action, against defendant Okan Pekin, fails to state a claim, as the conduct he complains of is simply not substantial enough to support a claim for hostile work environment, even under the maximally protective New York City Human Rights Law (see Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 26, 987 N.Y.S.2d 338 [1st Dept. 2014] ).
We have considered plaintiff's remaining arguments, and find them unavailing.