Opinion
511209/2020
09-29-2021
John DOE, Plaintiff, v. The CITY OF NEW YORK, New York City Health and Hospitals Corporation, and Raul Bartolome, in his individual and official capacity, Defendants.
Plaintiff was represented by Mark D. Shirian, Esq. of Mark David Shirian P.C. Defendants were represented by Amanda C. Croushore, Assistant Corporation Counsel for the City of New York
Plaintiff was represented by Mark D. Shirian, Esq. of Mark David Shirian P.C.
Defendants were represented by Amanda C. Croushore, Assistant Corporation Counsel for the City of New York
Genine D. Edwards, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notices of Motion, Affirmations and Memoranda of Law 1-6
Notice of Cross-Motion and Affirmation in Support and Opposition 7, 8
Reply Memorandum of Law 9
In this action, defendants The City of New York ("City"), New York City Health and Hospitals Corporation ("HHC") and Raul Bartolome ("Bartolome") move, in motion sequences No.1 and #2, for an order, pursuant to CPLR § 3211(a)(2) and (a)(7), dismissing the amended complaint with prejudice, on the grounds that plaintiff's failure to file a notice of claim deprives this Court of jurisdiction and that the amended complaint fails to state a cause of action; for an order prohibiting plaintiff from proceeding anonymously; entering judgment for defendants; and granting defendants costs, fees and disbursements. Plaintiff cross-moves, in motion sequence #3, to proceed anonymously under the pseudonym "John Doe", for the County Clerk to enter the caption of the above-entitled proceeding in the current minute books and indices of actions and proceedings maintained in this office under the title of JOHN DOE v. CITY OF NEW YORK, et al., and opposes defendants’ motions.
Factual and Procedural History
Plaintiff worked for HHC at the Susan Smith McKinney Rehab Center & Nursing Home, from June 10, 2019 to January 23, 2020. Plaintiff alleged that defendants discriminated against him based upon his gender and religion. According to plaintiff, on September 27, 2020, Bartolome, his supervisor, called him into his office and instructed plaintiff to lock the door. Bartolome asked him what religion he follows, and plaintiff responded that he practiced Hinduism. Bartolome told plaintiff "to pick up the Bible, read it, and go find people who are Christian". Bartolome also begged him to say a prayer asking the Lord to guide plaintiff, while Bartolome inappropriately touched and caressed plaintiff's leg.
On multiple occasions, plaintiff claims he was asked to complete tasks that were not in compliance with safety procedures nor within his job description. He refused to complete those assignments. In one instance, when plaintiff did not immediately respond to a request Bartolome made over his radio, Bartolome forcefully and angrily shoved plaintiff's hardhat into his chest, pushing him backwards. Plaintiff told Bartolome he felt disrespected and that the work environment was hostile. On another occasion, while plaintiff was responding to a fire, Bartolome radioed plaintiff requesting a timesheet. Plaintiff felt that Bartolome was jeopardizing his job with persistent interruptions.
From September 2019 to December 2019, plaintiff and Bartolome were involved in many work exchanges that led plaintiff to contact Beverly Samuels and Kevin Marrazzo ("Marrazzo") , regarding the alleged discriminatory nature of those encounters. In December 2019, Marrazzo advised plaintiff that his claims against Bartolome were unfounded. On January 23, 2020, plaintiff resigned.
The record is unclear as to the titles of Kevin Marrazzo and Beverly Samuels.
Discussion
In moving to dismiss the complaint based upon CPLR 3211(a)(2), defendants are required to prove that the court lacks subject matter jurisdiction. Subject matter jurisdiction "refers to objections that are fundamental to the power of adjudication of a court. Lack of jurisdiction should not be used to mean merely ‘that elements of a cause of action are absent,’ but that the matter before the court was not the kind of matter on which the court had power to rule." Garcia v. Govt. Empls. Ins. Co. , 130 AD3d 870; 14 N.Y.S.3d 116 (2d Dept. 2015).
Applying these principles to the instant matter, it is pellucidly clear that this Court is a court of general and unlimited jurisdiction, and therefore has subject matter jurisdiction to adjudicate the tort and discrimination claims alleged herein. Wells Fargo Bank Minnesota, Nat. Ass'n v. Mastropaolo , 42 AD3d 239, 837 N.Y.S.2d 247 (2d Dept. 2007) ; Owens v. Starbucks Corp. , 51 Misc 3d 1213, 37 N.Y.S.3d 207 (Sup. Court, Kings County 2016). However, plaintiff was obligated to serve a notice of claim. NY Gen. Mun. Law § 50-i mandates that no action shall be maintained against a city, in a tort action, unless a notice of claim is served upon the city.
NY Gen. Mun. Law § 50-e states:
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.
Compliance with the notice of claim provisions of General Municipal Law § 50-e is a condition precedent to suit. McGrue v. City of New York , 195 AD3d 932, 146 N.Y.S.3d 507 (2d Dept. 2021) ; Fotopoulos v. Bd. of Fire Commissioners of Hicksville Fire Dist. , 161 AD3d 733, 76 N.Y.S.3d 592 (2d Dept. 2018) ("the service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act").
Here, the City is a municipality, HHC is a public corporation and Bartolome is an employee of HHC. Thus, the General Municipal Law applies. However, plaintiff failed to file a notice of claim within ninety days of when the claims arose.
To dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), every fact alleged must be assumed to be true and the complaint liberally construed in plaintiff's favor. "The ultimate question is whether, accepting the allegations and affording these inferences, "plaintiff can succeed upon any reasonable view of the facts stated" " Doe v. Bloomberg L.P. , 36 NY3d 450, 143 N.Y.S.3d 286 (2021) ; Domitz v. City of Long Beach , 187 AD3d 853, 133 N.Y.S.3d 647 (2d Dept. 2020) (The query is whether the facts fit any cognizable legal theory.); New York State Div. of Human Rights v. Town of Oyster Bay , 177 AD3d 893, 113 N.Y.S.3d 153 (2d Dept. 2019). Such a motion should be granted only where the plaintiff has not pled the elements of a cause of action. See Peterson v. City of New York. , 120 AD3d 1328; 993 N.Y.S.2d 88 (2d Dept. 2014).
Liberally construing plaintiff's discrimination claims, as required by CPLR 3211(a)(7), the New York State Human Rights Law and the New York City Human Rights Law have specific elements that must be pled. Executive Law § 296 ; Administrative Code of City of NY § 8-107. A plaintiff alleging discrimination in violation of New York State Human Rights Law must plead: (1) he is a member of a protected class, (2) he was qualified to hold the position, (3) he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Bilitch v. New York City Health & Hosps. Corp. , 194 AD3d 999, 148 N.Y.S.3d 283 (2d Dept. 2021) ; Reichman v. City of New York , 179 AD3d 1115, 117 N.Y.S.3d 280 (2d Dept. 2020). The New York City Human Rights Law requires an allegation that unlawful discrimination was one of the motivating factors of the complained-of conduct. Bilitch , 194 AD3d 999.
A claim of a hostile work environment animated by discrimination in violation of the New York State Human Rights Law necessitates that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Forrest v. Jewish Guild for the Blind , 3 NY3d 295, 786 N.Y.S.2d 382 (2004). Under the New York City Human Rights Law, a plaintiff claiming a hostile work environment need only demonstrate that he was treated "less well than other employees" due to the specific characteristic. Reichman , 179 AD3d 1115.
Plaintiff has not alleged that he suffered an adverse employment action that affected his position, salary, or employment duties nor that an adverse action occurred due to discrimination as required by the New York State Human Rights Law. Indeed, plaintiff never mentioned his work hours or position being impacted due to any encounters he had with Bartolome.
Similarly, plaintiff's claim of a hostile work environment misses the mark. Plaintiff does not allege any pervasive discrimination at the workplace that altered his employment nor created an abusive environment. Plaintiff's bald assertions of being treated "less well" than other employees as required by the New York City Human Rights Law does not pass muster. However, the complaint does intimate that Bartolome's conduct was motivated by discrimination, in violation of Administrative Code of City of NY § 8-107.
Lastly, the determination of whether to allow a plaintiff to proceed under a pseudonym, requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant." Anonymous v. Lerner , 124 AD3d 487; 998 N.Y.S.2d 619 (1st Dept. 2015). Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously. Id. Although plaintiff wishes to proceed anonymously, he has not made any assertions that he feared embarrassment, economic harm from the public disclosure of his identity, social stigmatization, professional repercussions or social isolation from his peers and colleagues. Doe v. Yeshiva Univ. , 195 AD3d 565; 146 N.Y.S.3d 482 (1st Dept. 2021). Plaintiff only states that the alleged touching of his leg is sensitive and sexual in nature, and warrants proceeding anonymously.
Conclusion
Accordingly, defendants’ motions to dismiss are granted as follows:
ORDERED that plaintiff's causes of action alleging battery, assault, intentional infliction of emotional distress, prima facie tort, and respondeat superior are dismissed; and it is further
ORDERED that plaintiff's causes of action alleging violations of New York State Human Rights Law are dismissed; and it is further
ORDERED that plaintiff's causes of action alleging hostile work environment in violation of the New York City Human Rights Law are dismissed; and it is further
ORDERED that the rest of plaintiff's causes of action alleging violations of the New York City Human Rights Law shall remain viable; and it is further
ORDERED that plaintiff's cross-motion is denied. The caption shall be amended to reflect plaintiff's name.
This constitutes the Decision and Order of this Court.