Opinion
2019–07903 Index No. 7383/17
04-27-2022
Prabir DHAR, respondent, v. CITY OF NEW YORK, et al., appellants, et al., defendants.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Ellen Ravitch of counsel), for appellants. Prabir Dhar, Elmhurst, NY, respondent pro se.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Ellen Ravitch of counsel), for appellants.
Prabir Dhar, Elmhurst, NY, respondent pro se.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for constructive discharge and to compel disclosure of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the defendants City of New York, Jyotish Shah, Bojidar Yanev, Radu Georgescu, Erica Caraway, and Thirugnanam Mohan appeal from an order of the Supreme Court, Queens County (Ernest F. Hart, J.), dated March 4, 2019. The order, insofar as appealed from, denied those branches of those defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants City of New York, Jyotish Shah, Bojidar Yanev, Radu Georgescu, Erica Caraway, and Thirugnanam Mohan which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) are granted.
The plaintiff was employed by the New York City Department of Transportation (hereinafter DOT) as an assistant civil engineer from 1997 until 2014, when he resigned. He commenced this action in 2017 alleging, inter alia, that he had been constructively discharged because he had reported other employees’ misconduct, and that the City of New York had failed to respond to his request to disclose certain records pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL).
The defendants City of New York, Jyotish Shah, Bojidar Yanev, Radu Georgescu, Erica Caraway, and Thirugnanam Mohan (hereinafter collectively the defendants) moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated March 4, 2019, the Supreme Court, inter alia, denied those branches of the defendants’ motion which were to dismiss the causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to FOIL. The defendants appeal.
Pursuant to Public Officers Law § 89(4)(a), a person denied access to requested information under FOIL must appeal the denial in writing to the head of the entity or other designated person within 30 days (see Matter of Maldonado v. New York State Workers’ Compensation Bd., 197 A.D.3d 566, 567, 148 N.Y.S.3d 913 ; Matter of Bradhurst Site Constr. Corp. v. Zoning Bd. of Appeals, Town of Mount Pleasant, 128 A.D.3d 817, 818, 10 N.Y.S.3d 250 ). As the plaintiff did not submit an appeal within 30 days of the alleged denial, he failed to exhaust his administrative remedies and, thus, could not resort to a judicial forum to gain relief (see Matter of Maldonado v. New York State Workers’ Compensation Bd., 197 A.D.3d at 567, 148 N.Y.S.3d 913 ; Matter of Bradhurst Site Constr. Corp. v. Zoning Bd. of Appeals, Town of Mount Pleasant, 128 A.D.3d at 818, 10 N.Y.S.3d 250 ; Doe v. Lake Grove Sch., 107 A.D.3d 841, 842–843, 968 N.Y.S.2d 538 ).
"An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign" ( Golston–Green v. City of New York, 184 A.D.3d 24, 44, 123 N.Y.S.3d 656 ; see Short v. Deutsche Bank Sec., Inc., 79 A.D.3d 503, 504, 913 N.Y.S.2d 64 ; Nelson v. HSBC Bank USA, 41 A.D.3d 445, 447, 837 N.Y.S.2d 712 ). Here, affording the complaint a liberal construction, accepting the facts as alleged to be true, and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), the complaint fails to state a cause of action alleging constructive discharge, as the allegations are either vague and conclusory (see Murphy v. Department of Educ. of City of N.Y., 155 A.D.3d 637, 640, 64 N.Y.S.3d 237 ), or pertain to events that occurred after the plaintiff resigned.
The plaintiff's request for certain affirmative relief is not properly before this Court, since the plaintiff did not cross-appeal from the order appealed from (see Hecht v. City of New York, 60 N.Y.2d 57, 61–62, 467 N.Y.S.2d 187, 454 N.E.2d 527 ; Yacono v. United Mgt. Corp., 185 A.D.3d 985, 986, 125 N.Y.S.3d 884 ; U.S. Bank, NA v. Dickenson, 176 A.D.3d 891, 892, 107 N.Y.S.3d 885 ).
Accordingly, the Supreme Court should have granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to FOIL.
DILLON, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.