Opinion
293 CA 19-00310
07-24-2020
Harold BLACKMON, Adrian L. Green, Robert Hunter, Terry Miller, Jackie Rogers, Clarence Stackhouse, Paul Lee, Theo Derby, William H. Riddick, Victor Young, and Ernest A. Crowder, Plaintiffs-Appellants, v. CITY OF SYRACUSE, Defendant-Respondent, John Doe(s) and Jane Doe(s), Defendants.
BOSMAN LAW FIRM, LLC, BLOSSVALE (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. BOND SCHOENECK & KING, SYRACUSE (ADAM P. MASTROLEO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
BOSMAN LAW FIRM, LLC, BLOSSVALE (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BOND SCHOENECK & KING, SYRACUSE (ADAM P. MASTROLEO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the second, seventh, and eighth causes of action in the second amended complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs, current or former employees of defendant City of Syracuse (City) in the City's Department of Public Works, commenced this action against the City and defendants "John Doe(s) and Jane Doe(s)," who were yet to be identified "supervisors and or decision makers with respect to [p]laintiffs' employment," alleging race discrimination in their employment and retaliation. The City moved to dismiss the second amended complaint pursuant to CPLR 3211 (a) (7). Supreme Court granted the motion, and we now modify.
We note at the outset that plaintiffs have abandoned any contention that the court erred in dismissing the first cause of action, for breach of contract, or the fifth or sixth causes of action, for municipal liability for a custom, policy, or practice of race discrimination and retaliation, respectively, by failing to address those causes of action in their brief (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" ( Leon v. Martinez , 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). We must "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" ( id. at 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Here, the City moved to dismiss the second amended complaint on the ground that plaintiffs failed to comply with the notice of claim provisions of Syracuse City Charter § 8-115 (see Seneca One Realty, LLC v. City of Buffalo , 93 A.D.3d 1226, 1227, 940 N.Y.S.2d 428 [4th Dept. 2012] ). Compliance with those provisions, "unless waived, is a condition precedent to the commencement of litigation against the City" ( Davis-Wallbridge, Inc. v. City of Syracuse , 71 N.Y.2d 842, 844, 527 N.Y.S.2d 736, 522 N.E.2d 1034 [1988], rearg denied 72 N.Y.2d 841, 530 N.Y.S.2d 556, 526 N.E.2d 48 [1988] ; see Tom L. La Mere & Assoc., Inc. v. City of Syracuse Bd. of Educ. , 48 A.D.3d 1050, 1051, 851 N.Y.S.2d 752 [4th Dept. 2008] ). In opposition to the motion, plaintiffs did not dispute that they failed to file a notice of claim, but rather argued that they were not required to do so. Thus, the issue here is whether plaintiffs were required to file a notice of claim pursuant to the Syracuse City Charter.
We agree with plaintiffs that they did not need to file a notice of claim with respect to their Federal discrimination claims under the second, seventh, and eighth causes of action (see Felder v. Casey , 487 U.S. 131, 151-153, 108 S.Ct. 2302, 101 L.Ed.2d 123 [1988] ; Matter of Nicholson v. City of New York , 166 A.D.3d 979, 979, 88 N.Y.S.3d 150 [2d Dept. 2018] ; Matter of Clairol Dev., LLC v. Village of Spencerport , 100 A.D.3d 1546, 1547, 954 N.Y.S.2d 389 [4th Dept. 2012] ; Montano v. City of Watervliet , 47 A.D.3d 1106, 1110, 850 N.Y.S.2d 273 [3d Dept. 2008] ). We therefore modify the order by denying the motion in part and reinstating those causes of action in the second amended complaint.
In contrast to the Federal claims, the State claims are subject to notice of claim requirements (see Gorman v. Sachem Cent. School Dist. , 232 A.D.2d 452, 453, 648 N.Y.S.2d 461 [2d Dept. 1996] ). As plaintiffs correctly assert, the notice of claim provisions of General Municipal Law §§ 50-e and 50-i are inapplicable to State claims under the Human Rights Law (see Margerum v. City of Buffalo , 24 N.Y.3d 721, 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 [2015] ; Thygesen v. North Bailey Volunteer Fire Co., Inc. , 106 A.D.3d 1458, 1460, 964 N.Y.S.2d 816 [4th Dept. 2013] ). But that is because Human Rights claims "are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i" ( Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 ; see Picciano v. Nassau County Civ. Serv. Commn. , 290 A.D.2d 164, 170, 736 N.Y.S.2d 55 [2d Dept. 2001] ). In contrast, Syracuse City Charter § 8-115 (3) is not limited to tort claims or claims for personal injury. It provides in relevant part that "[n]o action or special proceeding, for any cause whatever , ... involving the rights or interests of the [C]ity shall be prosecuted or maintained against the [C]ity" unless a notice of claim was served on the City within three months after the accrual of such claim (id. [emphasis added] ). The broad language of that notice of claim requirement encompasses plaintiffs' causes of action under the Human Rights Law (see Matter of Farrell v. City of Kingston , 156 A.D.3d 1269, 1272, 69 N.Y.S.3d 364 [3d Dept. 2017] ; Picciano , 290 A.D.2d at 170, 736 N.Y.S.2d 55 ).