Opinion
23064 2017E
04-03-2018
Rolando ROMERO, v. The CITY OF NEW YORK, et als.
Counsel for Plaintiff: Peter J. Gleason, Esq. Counsel for Defendants: Zachary W. Carter, Corporation Counsel, City of New York (Sean Renaghan, Esq.)
Counsel for Plaintiff: Peter J. Gleason, Esq.
Counsel for Defendants: Zachary W. Carter, Corporation Counsel, City of New York (Sean Renaghan, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to _6 Read on this motion, CHANGE VENUE Noticed on August 21, 2017 and duly submitted on the Motion Calendar of September 8, 2017 :
Memoranda of Law
Upon the foregoing papers, the defendants City of New York, Michael Gala, Thomas Bradley, and Charles Barraco ("Defendants") move for an order (1) transferring venue of this action from Bronx County to Kings County pursuant to CPLR 510(1) and 511(b) and, upon transfer or in the alternative, (2) for a judgment pursuant to CPLR 3211(a)(5) and 3211(a)(7), dismissing the complaint on the grounds that it is barred, in part, by collateral estoppel and the applicable statute of limitations, and otherwise fails to state a cause of action, and granting Defendants costs, fees, and disbursements together with such other and further relief as this Court deems just and proper. The plaintiff Rolando Romero ("Plaintiff") opposes the motion.
In order to prevail on a motion to change venue pursuant to CPLR 510(1), a defendant must show that plaintiff's choice of venue is improper and also that the defendant's choice of venue is proper (see Deas v. Ahmed , 120 A.D.3d 750, 991 N.Y.S.2d 661 [2nd Dept. 2014] ). CPLR 504 provides that venue for all actions against "... (3) the city of New York, must be venued "in the county within the city in which the cause of action arose..." This statute "implements the public policy of giving all due consideration to the convenience of public officials, and should be complied with absent compelling countervailing circumstances" ( Smith v. City of New York , 60 A.D.3d 540, 541, 877 N.Y.S.2d 13 [1st Dept. 2009], quoting Rose v. Grow–Perini , 271 A.D.2d 210, 706 N.Y.S.2d 326 [1st Dept. 2000] ).
In this matter, Plaintiff's complaint alleges race discrimination, retaliation, and aiding and abetting unlawful employment practices in violation of New York City Administrative Code § 8–502 et seq. ("City Human Rights Law"). However, the statute of limitations for a cause of action under City Human Rights Law is three years after the alleged unlawful discriminatory practice or act (New York City Admin. Code § 8–502[d] ). Plaintiff did not commence his federal action until July 27, 2016. Accordingly, as Plaintiff conceded in proceedings before the District Court Judge (Conf. Transcript at pp. 10–11), and as subsequently decided by the District Court, Plaintiff cannot recover for alleged bad acts that occurred prior to July 27, 2013, even though those acts may be relevant as to demonstrate Defendants' intent. Therefore, the only actions that may be the source of Plaintiff's current damages are those that occurred after July 27, 2013. This Court arrives at this conclusion even without specifically deciding whether Plaintiff's pre–July 2013 claims are barred by the doctrine of collateral estoppel. Upon review of the complaint, the only conduct that is not time-barred—specifically the incident in November 2013, and his firing in May 2014—occurred during Plaintiff's assignment with FDNY headquarters in Brooklyn. Plaintiff's only viable cause of action thus "arose" out of Brooklyn, and not the Bronx.
Contrary to Plaintiff's contentions, Defendants did not have to support their motion with evidence concerning convenience of material witnesses, as Defendants were not seeking a discretionary change of venue pursuant to CPLR 510(3). Furthermore, Plaintiff has failed to demonstrate the existence of sufficient countervailing circumstances to justify retaining venue in the Bronx. Again, the only discriminatory conduct that is not time-barred arose out of Brooklyn. The fact that Plaintiff is a Bronx resident and that New York City Fire Department ("FDNY") maintains facilities in the Bronx is not enough to retain venue here (see, e.g. , Tesfaye v. Swett , 227 A.D.2d 150, 641 N.Y.S.2d 674 [1st Dept. 1996] ; Ruiz v. City of New York , 195 A.D.2d 327, 599 N.Y.S.2d 822 [1st Dept. 1993] ).
Defendants' motion is therefore granted to the extent that (1) Plaintiff is barred from recovering for any conduct that occurred prior to July 27, 2013, as such claims are barred by the applicable statute of limitations and (2) venue is transferred to Kings County, and (3) the remaining branches of Defendants' motion, seeking dismissal of Plaintiff's claims against the individual defendants and dismissal of Plaintiff's remaining timely claims for failure to state a cause of action, are denied without prejudice, with leave to renew in Kings County (see Rosenblatt v. Sait , 34 A.D.2d 238, 310 N.Y.S.2d 790 [1st Dept. 1970] [once it is decided that venue should be changed, orderly procedure and comity mandate that all motions be relegated to the transferee court] ). Defendants' request for costs and fees is also referred to the transferee court.
Accordingly, it is hereby
ORDERED, that the branch of Defendants' motion to dismiss the complaint, in part, is granted to the extent outlined above, and it is further,
ORDERED, that upon payment of the requisite fee, if any, the Clerk is hereby directed to transfer the entirety of this file to Kings County.
This constitutes the Decision and Order of this Court.