Opinion
06-08-2016
Dorota BORAWSKI, etc., appellant, v. Ovadia ABULAFIA, etc., et al., respondents.
Law Office of Dean T. Cho, LLC, New York, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu, Matthew W. Grieco, and Andrew Rhys Davies of counsel), for respondents.
Law Office of Dean T. Cho, LLC, New York, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu, Matthew W. Grieco, and Andrew Rhys Davies of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Opinion In an action, inter alia, to recover damages for unlawful retaliation in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated May 19, 2014, which granted the defendants' motion for summary judgment dismissing the cause of action alleging unlawful retaliation in violation of Executive Law § 296.
ORDERED that the order is affirmed, with costs.
The plaintiff, who is an obstetrician and gynecologist formerly employed by the defendant SUNY Downstate Medical Center (hereinafter SUNY Downstate), commenced this action against SUNY Downstate and one of its employees, Ovadia Abulafia. In her complaint, the plaintiff alleged, among other things, that the defendants unlawfully retaliated against her in violation of Executive Law § 296 for filing a complaint with the New York State Division of Human Rights (hereinafter the SDHR), in which she complained that the defendants terminated her fellowship training program after she raised concerns about long work hours and patient safety. After joinder of issue and discovery, the defendants moved for summary judgment dismissing the cause of action alleging unlawful retaliation in violation of Executive Law § 296. The Supreme Court granted the motion, and the plaintiff appeals.
Contrary to the plaintiff's contention, the legal argument made by the defendants' counsel in support of a prior motion does not constitute a judicial admission (see Lipco Elec. Corp. v. ASG Consulting Corp., 117 A.D.3d 688, 689, 984 N.Y.S.2d 619 ; Naughton v. City of New York, 94 A.D.3d 1, 12, 940 N.Y.S.2d 21 ; Rahman v. Smith, 40 A.D.3d 613, 614–615, 835 N.Y.S.2d 404 ). Moreover, the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see 191 Chrystie LLC v. Ledoux, 82 A.D.3d 681, 682, 920 N.Y.S.2d 324 ; Bernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168 ; Thompson v. Lamprecht Transp., 39 A.D.3d 846, 847, 834 N.Y.S.2d 312 ; State of New York v. Barclays Bank of N.Y., 151 A.D.2d 19, 20–21, 546 N.Y.S.2d 479, affd. 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 ). In any event, this Court is not bound by the prior determination of the Supreme Court (see Brown–Jodoin v. Pirrotti, 138 A.D.3d 661, 29 N.Y.S.3d 426 ; Debcon Fin. Servs., Inc. v. 83–17 Broadway Corp., 126 A.D.3d 752, 754, 5 N.Y.S.3d 478 ; Hothan v. Mercy Med. Ctr., 105 A.D.3d 905, 905, 963 N.Y.S.2d 322 ).
The Supreme Court properly granted the defendants' motion for summary judgment dismissing the cause of action alleging unlawful retaliation. To make a prima facie showing of retaliation under Executive Law § 296, “a plaintiff must show that (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action” (Ruane–Wilkens v. Board of Educ. of City of N.Y., 56 A.D.3d 648, 649, 868 N.Y.S.2d 112 ; see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Clarson v. City of Long Beach, 132 A.D.3d 799, 800, 18 N.Y.S.3d 397 ; Adeniran v. State of New York, 106 A.D.3d 844, 844, 965 N.Y.S.2d 163 ). “An employee engages in a ‘protected activity’ by ‘opposing or complaining about unlawful discrimination’ ” (Clarson v. City of Long Beach, 132 A.D.3d at 800, 18 N.Y.S.3d 397, quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see Executive Law § 296[1][e], [7] ).
Here, the defendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of retaliation by showing that the complaint filed by the plaintiff with the SDHR did not relate to discriminatory practices prohibited under the Executive Law, and that she, therefore, had not engaged in a protected activity (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Clarson v. City of Long Beach, 132 A.D.3d at 800, 18 N.Y.S.3d 397 ; Adeniran v. State of New York, 106 A.D.3d at 845, 965 N.Y.S.2d 163 ; Dodd v. Middletown Lodge [Elks Club] No. 1097, 264 A.D.2d 706, 707–708, 695 N.Y.S.2d 115 ). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the cause of action alleging unlawful retaliation in violation of Executive Law § 296 (see Adeniran v. State of New York, 106 A.D.3d at 845, 965 N.Y.S.2d 163 ).