Opinion
14674 Index No. 160117/15 Case No. 2021–00050
11-23-2021
Raul PICHARDO, Plaintiff–Appellant, v. CARMINE'S BROADWAY FEAST INC., Defendant–Respondent.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondent.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondent.
Acosta, P.J., Gische, Singh, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Alan C. Marin, J.), entered December 4, 2020, which, insofar as appealed from as limited by the briefs, granted in part defendant's motion for summary judgment, unanimously modified, on the law, to deny defendant's motion insofar as it seeks dismissal of the hostile work environment claims under the New York City Human Rights Law, and otherwise affirmed, without costs.
In support of his claim of a hostile work environment based on his race or color, which he commenced in October 2015, plaintiff cited incidents of allegedly harassing conduct in 2011 and early 2012, outside the three-year limitations period for commencing a discrimination action under the New York State Human Rights Law (State HRL) and the City Human Rights Law (City HRL) ( CPLR 214[2] ; Administrative Code of City of the City of New York § 8–502[d]). Plaintiff failed to cite any other incidents with any specificity in late 2012 through 2014. The only two other incidents he described, in May and September 2015 – both within the limitations period – largely involved different coworkers who purportedly engaged in harassing conduct under different circumstances. Thus, the later incidents do not evince a consistent pattern warranting application of the continuing violation doctrine to the earlier time-barred conduct (see Williams v. New York City Hous. Auth., 61 A.D.3d 62, 81, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ; Herrington v. Metro–North Commuter R.R. Co., 118 A.D.3d 544, 544, 988 N.Y.S.2d 581 [1st Dept. 2014] ; Ferraro v. New York City Dept. of Educ., 115 A.D.3d 497, 497–498, 982 N.Y.S.2d 746 [1st Dept. 2014] ).
As to the conduct at issue that is not barred by the limitations period, although the motion court properly concluded that it does not rise to the level of "severe and pervasive" under the applicable pre–2019 State HRL, plaintiff has raised triable issues of fact regarding the hostile work environment claims under the more protective City HRL ( Williams, 61 A.D.3d at 74, 872 N.Y.S.2d 27 ; Executive Law § 296[1][a] ; Administrative Code § 8–107[1][a][2], [3]). There was evidence that in May and September 2015, several of plaintiff's coworkers referred to him by using the Spanish word for "monkey," a racially humiliating and degrading term. Further, the evidence suggested that other coworkers and supervisors, if not everyone at the restaurant, knew that certain employees were using that term to refer to plaintiff (see White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 [4th Cir.2004] ; Sims v. Trustees of Columbia Univ. in the City of N.Y., 168 A.D.3d 622, 623, 92 N.Y.S.3d 277 [1st Dept. 2019] ). Under these circumstances, triable issues exist as to whether this rises above the level of a "truly insubstantial" case ( Williams, 61 A.D.3d at 80, 872 N.Y.S.2d 27 ). The evidence also raised triable issues as to whether plaintiff was treated differently from other employees of his ethnic background because of his skin color (see Williams, 61 A.D.3d at 78, 872 N.Y.S.2d 27 ; see generally Gonzalez v. EVG, Inc., 123 A.D.3d 486, 487–488, 999 N.Y.S.2d 16 [1st Dept. 2014] ).
Furthermore, triable issues of fact exist as to whether defendant was liable for the comments of its workers, and whether defendant took "immediate and appropriate corrective action" to prevent the conduct (Administrative Code § 8–107[13][b][2]; Zakrzewska v. The New School, 14 N.Y.3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 [2010] ).