Opinion
504527/2019
11-18-2019
Goldy STERN on her own behalf, Plaintiff, v. PITTS MANAGEMENT ASSOCIATES, INC., and John Dooley, individually, jointly and/or severally, Defendants.
Mirer, Mazzocchi & Julien PLLC, Jeanne Mirer, Esq., 150 Broadway, Suite 1200, New York, NY 10038, (212) 231-2235, Attorney for Plaintiff Meyers, Tersigni, Feldman & Gray LLP, Anthony L. Tersigni, Esq., 14 Wall Street, 20th Floor, New York, NY 10005, (206) 498-3713, Attorney for Defendant
Mirer, Mazzocchi & Julien PLLC, Jeanne Mirer, Esq., 150 Broadway, Suite 1200, New York, NY 10038, (212) 231-2235, Attorney for Plaintiff
Meyers, Tersigni, Feldman & Gray LLP, Anthony L. Tersigni, Esq., 14 Wall Street, 20th Floor, New York, NY 10005, (206) 498-3713, Attorney for Defendant
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the defendant John Dooley filed on August 27, 2019, under motion sequence number two, for an order pursuant CPLR 3211(a) (1), (5) and (7) to dismiss the complaint.
Notice of Motion
Affirmation in support
Exhibit A-G
Memorandum of Law in support
Memorandum of Law in opposition
Memorandum of Law in reply
BACKGROUND
On March 19, 2019, plaintiff commenced the instant action by electronically filing a summons and complaint with the Kings County Clerk's office. The complaint contains one hundred and eighteen allegations of fact in support of plaintiff's claims for employment discrimination and unlawful retaliation under the New York City Human Rights Law, and a claim for fraudulent inducement against Dooley for falsely promising a raise so that plaintiff would turn down an offer of employment.
Plaintiff's complaint has alleged, among other things, the following salient facts. Since 2008, plaintiff was a computer programmer at the State University of New York's Hospital Downstate Medical Center (hereinafter SUNY-DMC) in its Information Technology (hereinafter IT) department. Plaintiff has asserted three causes of action against Dooley for discrimination and fraudulent inducement. Dooley was the Director of the IT department from May 2013 to November 2015 and, during that time, Dooley discriminated against the plaintiff by allegedly quashing a pay raise and by failing to promote her. Dooley also allegedly retaliated against the plaintiff for alleged complaints of discrimination she made in January 2014 and August 2015, and defrauded plaintiff when he allegedly represented to her that he would submit paperwork for a raise.
MOTION PAPERS
Defendant Dooley's motion papers consists of a notice of motion, an affirmation of counsel in support, seven annexed exhibits labeled A through E and a memorandum of law in support. Exhibit A is a copy of the instant verified complaint. Exhibit B is a copy of the parties stipulation extending Dooley's time to answer the complaint. Exhibit C is a copy of an order of the Court issued July 26, 2019 which denied Dooley's prior motion to dismiss without prejudice for failing to comply with CPLR 2214 (c) time and granted him leave to resubmit the motion on or before September 6, 2019. Exhibit D is described as the second amended complaint of the plaintiff in an action brought in the United States District Court for the Eastern District of New York against Dooley (hereinafter the federal action), among others. Exhibit F is described as a memorandum and order of the EDNY dated September 30, 2018 dismissing the complaint in the federal action as asserted against Dooley (hereinafter the federal action order). Exhibit G is described as a copy of the plaintiff's charge of discrimination filed with the EEOC dated October 9, 2015 and the EEOC dismissal dated July 8, 2016.
Plaintiff responded with a memorandum of law in opposition.
Dooley responded with a memorandum of law in reply.
LAW AND APPLICATION
Defendant Dooley has advanced several arguments in support of his pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a). First, Dooley seeks dismissal of the complaint pursuant to CPLR 3211 (a) (1) based on documentary evidence. Second, he seeks dismissal of the complaint pursuant to CPLR 3211 (a) (5) through the application of the doctrine of res judicata. Third, he seeks dismissal of the complaint pursuant to CPLR 3211 (a) (7) for failure to plead a cognizable claim in law against him.
Dismissal Pursuant to CPLR 3211 (a) (1)
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( Arnell Constr.Corp. v. New York City Sch. Constr. Auth., ––– NYS3d ––––, 2019 WL 5778172, citing, Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 [2002] ; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc. , 20 NY3d 59, 63 [2012] ).
Documents that qualify as documentary evidence include judicial records, mortgages, deeds, and contracts ( Arnell Constr. Corp. v. New York City Sch. Constr. Auth., ––– NYS3d ––––, 2019 WL 5778172, citing, Hartnagel v. FTW Contr. , 147 AD3d 819, 820 [2nd Dept 2017] ). Affidavits, deposition testimony, and letters are not documentary evidence ( Arnell Constr. Corp. v. New York City Sch. Constr. Auth., ––– NYS3d ––––, 2019 WL 5778172, citing, Granada Condominium III Assn. v. Palomino , 78 AD3d 99, 997 [2nd Dept 2010] ). Dooley neither explained nor establish how the seven exhibits annexed to his motion refuted any of the factual allegation made in the plaintiff's complaint.
Dismissal Pursuant to CPLR 3211 (a) (5)
Dooley has established that prior to the commencement of the instant action, the plaintiff commenced the federal action in the United States District Court for the Eastern District of New York (EDNY) against Dooley, among others. The pleadings in the federal action are not identical but do allege some of the same facts of alleged discrimination and retaliation that are alleged in the instant complaint. By the federal action order, dated September 30, 2018, all the claims asserted against Dooley were dismissed without prejudice.
Dooley, applying the doctrine of res judicata, contends that the September 30, 2018 order of dismissal in the federal action bars the prosecution of the instant complaint. Under the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action ( Manko v. Gabay , 175 AD3d 484, 485—86 [2nd Dept 2019] citing, Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999] ). Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy ( Manko , 175 AD3d at 485—86 citing, O'Brien v. City of Syracuse , 54 NY2d 353, 357 [1981] ).
As relevant here, United States District Judge Nicholas G. Garaufis, the federal district judge who issued the subject federal action order, stated the following in the federal action order. First, he stated, among other things, that all the federal claims asserted against Dooley were dismissed based on pleading deficiencies. Second, he declined to exercise supplemental jurisdiction over the New York state claims asserted against Dooley. Third, he stated that he was dismissing the state claims asserted against Dooley without prejudice.
Here, Dooley failed to establish that the doctrine of res judicata barred the instant action. In particular, he failed to show that any aspect of the federal action order resulted in a valid final judgment of dismissal of any of the claims asserted against Dooley in the federal action. In fact, since the dismissal of the claims asserted against Dooley in the federal action were explicitly done without prejudice, the federal action order was not intended to have any determinative effect on the merits of the action (see Landau, P.C. v. LaRossa, Mitchell & Ross , 11 NY3d 8, 13 n 3 [2008] ).
Dismissal Pursuant to CPLR 3211 (a) (7)
On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( J & JT Holding Corp. v. Deutsche Bank Nat'l Tr. Co. , 173 AD3d 704, 706 [2nd Dept 2019], citing, Shah v. Exxis, Inc. , 138 AD3d 970, 971 [2nd Dept 2016] ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( J & JT Holding Corp. , 173 AD3d at 706, quoting, Rabos v. R & R Bagels & Bakery, Inc. , 100 AD3d 849, 851—852 [2nd Dept 2012] ).
Dooley submitted an affirmation of his counsel describing the seven exhibits annexed to his motion. Dooley did not submit any sworn testimony from anyone with personal knowledge of any of the allegations of fact or occurrences alleged in the plaintiff's complaint. The annexed exhibits are nevertheless deemed evidentiary material and are considered on Dooley's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) without converting the motion into one for summary judgment. Consequently, the question is whether the plaintiff has a cause of action motion not whether she has stated one.
Dooley has contended, among other things, that the allegations of fact asserted against him in the instant action consist of nothing more than conclusory assertions and contradictions. CPLR 3014 provides in pertinent part that every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. The plaintiff in accordance with CPLR 3014 alleged one hundred and eighteen consecutively numbered allegations of fact. Dooley pointed out only three allegation of fact contained in paragraphs thirty-seven, thirty-nine, and forty-seven of the complaint as being conclusory statements of discriminatory animus. The complaint, however, alleges over twenty other specific and not conclusory facts of acts by Dooley in support of plaintiff's various claims.
Pursuant to the New York City Human Rights Law (hereinafter NYCHRL) it is an "unlawful discriminatory practice" for an employer, "because of an individual's ... gender or creed ..., to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment" (see Administrative Code § 8—107 [1] [a]; Ananiadis v. Mediterranean Gyros Products, Inc. ,151 AD3d 915 [2nd Dept 2017] ).
To make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct ( Sanderson—Burgess v. City of New York, 173 AD3d 1233 [2nd Dept 2019], citing, Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740 [2nd Dept 2013] ).
The elements of a cause of action to recover damages for fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury ( Tsinias Enterprises Ltd. v. Taza Grocery, Inc. , 172 AD3d 1271 [2nd Dept 2019], citing, GoSmile, Inc. v. Levine, 81 AD3d 77, 81 [2nd Dept 2010] ). To state a cause of action to recover damages for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury (Id. )
Dooley relies heavily on the contention that the federal action order has already dismissed the federal claims that plaintiff asserted against Dooley in the federal action based on pleading deficiencies. Dooley does not address the fact that the instant complaint is different from the pleadings in the federal action. Nor does he address the plaintiff's contention that the instant complaint was changed to supplement and correct the pleading deficiencies that were pointed out in the federal action order. Nor does Dooley identify what material facts that are alleged or that may be inferred in the instant complaint are not facts at all.
Accepting the facts alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference, the Court finds that the instant complaint does sets forth claims cognizable in law for discrimination and unlawful retaliation under the NYCHRL and sets forth a cognizable claim for fraudulent inducement.
CONCLUSION
Defendant John Dooley's motion for an order dismissing the complaint pursuant CPLR 3211(a) (1), (5) and (7) is denied.
The foregoing constitutes the decision and order of this Court.