Opinion
Index No. 500789/2023 Mot. Seq No. 2
05-08-2024
KENCES POULARD. Plaintiff; v. NORTHWELL HEALTH, INC., and NORTHWELL HEALTHCARE, INC., Defendants,
Unpublished Opinion
Motion Date: 4/1/24
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
Upon the following e-filed documents, listed by NYSCEF as item numbers 18-24. 28-30, and 31-33, the pre-answer motion of defendants NORTH WELL HEALTH, INC. and NORTHWELL HEALTHCARE, INC. (collectively, “defendants") for an order dismissing the amended Complaint, dated April 23, 2023, of plaintiff KENCES POULARD ("plaintiff”) is decided as follows:
In the interest of brevity, the Court assumes the parties' familiarity with the underlying facts, procedural history, arid the issues presented, to which the Court refers only as necessary to explain its determination (see e.g. Longe v City of NY, 802 Fed Apex 635. 636 [2d Cir 2020|).
The First branch of defendants' motion which is for an order, under CPLR 3211 (a) (1). dismissing the entirety of the am ended complaint as barred by documentary evidence, is denied. Defendants' proffered documents - the affidavit of Megan Curran, a Manager in the Human Resources Department (NYSCEF Doc No. 20). the affidavit of Amanda W. Elbayar, a Director of Talent Acquisition, On-boarding. and Compliance in the Human Resources Department (NYSCEF Doc No. 31). and the respective attachments to those affidavits (NYSCEF Doc Nos. 21 and 32) - are not “documentary”' in nature- under CPLR 3211 (a) (1), and, in any event, are incapable (either individually or collectively) of establishing a defense to plaintiff s claims as a matter of law (see Pergament v Government Empls. Ins, Co,, 225 A.D.3d 799 [2d Dept 2024]; Pasguaretto v Long Is, Univ., 106 A.D.3d 794, 795 [2d Dept 2013]).
The second branch of defendants' motion which is for an order, under CPLR 3211 (a) (2). dismissing the first and second causes of action of the amended complaint (as pleaded in ¶¶ 57 through 64) under the New York City Human Rights Law is granted, and such causes of action are dismissed . The alleged incidents, as pleaded in the amended complaint, took place in Long Island. New York, outside the boundaries of New York City, and caused no impact within New York City (see Hoffman v Parade Publications, 15 N.Y.3d 285. 291 [2010]: Hardwick v Auriemma, 116 A.D.3d 465, 466-467 [1st Dept 2014], Iv denied 23 N.Y.3d 908 [2014]; Fernandez v POP Displays, 2017 NY Slip Op 30012(U), *3 [Sup Ct. NY County 2017]: Ortiz v Haier Am. Trading, LLC. 2011 NY Slip Op 31414(H), *5 [Sup Ct, NY County 2011 ]).
See also Mejia v White Plains Self Stprage Corp., 2020 WL 247995, *3-4 (SD NY 2020): McKinney v Tanner, 2019 WL 3067116. *2 (SD NY 2019); Kearse v. A TC Healthcare Servs., 2013 WL 1496951, *2 (SD NY 2013); Wahlstrom v Metro-North Comnniter R.R.. Co., 89 F.Supp.2d 506. 527 (SD NY 2000). Accord Meyers v Medco Health Sols,. Inc., 2012 WL 4747173. *4-55 (SD NY 2012), modified on reconsideration on other grounds 2015 WL J 50021 7,Y5 (SD NY 2015).
The third branch Of defendants' motion which is for an order; under CPLR 3211 (a) (5). dismissing (as relevant herein) the third and fourth causes o f action of the amended complaint (as pleaded in ¶¶ 65 through 72) under the New York State Human Rights Law as time-barred is granted to the extent that such causes of action, insofar as predicated on the alleged incidents which look place prior to January 9. 2020. are dismissed. It is true. as plaintiff asserts, that the continuing violation doctrine permits consideration of all acts relevant to a claim. Including those that would otherwise be time-barred, so long as such acts are part of "a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint" (James v City of NY. 144 A.D.3d 466. 467 [J st Dept 2016] [internal quotation and citation omitted]). Nevertheless. "[t]he continuing violation doctrine may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Peckham v Island Park Union Free School Dist., 167 A.D.3d 641, 642 [2d Dept 2018] [internal quotation marks omitted]), "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs" (Henry v Bank of Am., 147 A.D.3d 599, 601 [1st Dept 2017] [internal quotation marks omitted]). Here, the continuing violation doctrine does not apply because the amended complaint fails to allege facts comprising a single continuing pattern of unlawful conduct extending into the limitations period immediately preceding the initiation of this action, but rather alleges discrete events, involving different actors, and occurring, months to years apart (see Campbell v New York City Dept, of Educ., 200 A.D.3d 488. 489 [1st Dept 2021 ]; Mira v Harder [Evans], 177 A.D.3d 426 [1st Dept 2019]: James, 144 A.D.3d at 467: Llanos v City of NY, 129 A.D.3d 620 [1st Dept 2015]).
Compare Crawford v American Broadcasting Co., Inc., 216 A.D.3d 507, 508 (1st Dept 2023): Long v Aerolek Inc., 202 A.D.3d 1216, 1.218-1219 (3d Dept 2022): Jeutdy v City of NY, 142 A.D.3d 821, 823 (1st Dept 2016): Kimmel v State, 49 A.D.3d 1210. 1210-1211 (4th Dept 2008). Iv dismissed 11 N.Y.3d 729 (2008).
The fourth and final branch of defendants' motion which is for an order, under CPLR 3211 (a) (7). dismissing the extant (i.e., the non-time-barred) portions of the third and fourth causes of action of the amended complaint under the New York State Human Rights Law (as pleaded in 65 through 72) for failure to stale a claim is denied as to the third cause of action (i.e., hostile work environment) with the exception of plaintiffs demand for punitive damages, and is granted as to the fourth cause of action (i.e., failure to promote/hire).
The amended complaint (in ¶¶ 66-68 as predicated on ¶¶ 38-50) adequately alleges, as and for its third cause of action, a timely claim for hostile work environment under the New York State Human Rights Law for the period from "mid-late January 2020" to "November . . . 2022." Defendants' contention that the complained-of conduct at issue was "a petty slight or trivial inconvenience" (while a potentially valid argument at the summary judgment stage) constitutes, at the pre-answer motion to dismiss stage, an affirmative defense to be raised in an answer (see Kassapian v City of NY, 155 A.D.3d 851, 853 [2d Dept 2017]; Kaplan v New York City Dept, of Health &Mental Hygiene, 142 A.D.3d 1050, 1051 [2d Dept 2016]: Williams v New York City Hous. Auth., 61 A.D.3d 62, 80 [1st Dept 2009], Iv denied 13 N.Y.3d 702 [2009]).
See e.g. DeAngelo v MAXIMUSNY Medicaid Choice, 2022 WL 3043665, *26 (SO NY 2022): Russo v New York Presbyterian Hosp,. 972 F.Supp.2d 429, 453 (ED NY 2013) (collecting authorities).
However, the allegations in the amended complaint do not support the demand for punitive damages against defendants (in ¶ 67 and in "Wherefore" clause, ¶ D) (see Del Vecchio v Gangi, 225 A.D.3d 666, 67] [2d Dept 2024]; Dash Windows of L. I., Inc. v Bivona, 216 A.D.3d 915. 916 [2d Dept 20231).
Conversely, plaintiffs fourth cause of action for failure to promote/hire under the New York State Human Rights Law fails to-allege (in ¶¶ 69-72 as predicated on ¶¶ 53-56) that she was not promoted (or hired) to a supervisor position in the summer of 2022 in retaliation for (or as a quid pro quo for her failure to accede to) the alleged sexual innuendos by one of the three individuals who interviewed her for the position. Further, the amended complaint fails to allege that plaintiff and the promoted individual were "similarly situated in all material respects" (Shah v Wilco Sys., Inc., 27 A.D.3d 169, 177 [1st Dept 2005] [internal quotation marks omitted ], Iv dismissed in part, denied in part 7 N.Y.3d 859 [2006]). Rather, the amended complaint simply alleges (in ¶ 56) that "[t]he individual selected for this promotion was a relatively new employee with 5+ years less tenure than [plaintiff]” The amended complaint is, thus, bereft of key allegations that the promoted individual had the same job title as plaintiff, had the same responsibilities pr job requirements as plaintiff, reported to the same supervisors, or was employed in the same unit as plaintiff (see Etienne v MTA New York City Tr. Audi., 223 A.D.3d 612, 612-613 [1st Dept 2024]).
In that regard, the amended complaint alleges (in ¶¶ 54-55) that "[a named individual] was one of the three managers who interviewed (plaintiff] for this position,' and that "[plaintiff] was informed she did not get the job by [such individual], who was a (or the) decision-maker as to who would be prompted into this position." The skimpy allegations are inadequate to establish a cause-and-effect relationship between the lack of promotion and the named individual 's participation in the interview.
Cf. Pelepelin v City of NY, 189 A.D.3d 450, 452 (1st Dept 2020).
Accordingly, it is ORDERED that defendants' pre-answer motion to dismiss is granted to the extent that:
(1) the first and second causes of action under the New York City Human Rights Law are dismissed for lack of subject matter jurisdiction under CPLR 3211 (a) (2):
(2) the portions of the third and fourth causes of action under the New York State Human Rights Law, insofar as predicated on the alleged incidents' which took place prior to January 9. 2020. are dismissed as time-barred under CPLR 3211 (a) (5):
(3) the balance of the fourth cause of action under the New York State Human Rights Law (i.e., failure to promote/hire) is dismissed for failure to state a claim under CPLR 3211 (a) (7): and
(4) plaintiffs demand for punitive damages (in ¶ 67 and in "Wherefore'' clause. ¶ D) as to, the surviving third cause of action under the New York State Human Rights Law for the alleged hostile work environment for the period from "mid-late January 2020" to "November . . . 2022" (¶¶ 66-68 as predicated on ¶¶ 38-50). is stricken: and the remainder of defendants' motion is denied: and it is further
ORDERED that for the avoidance of doubt, this action shall proceed solely on plaintiffs third cause of action under the New York State Human Rights Law (i.e., hostile-work environment claim), insofar as such claim is predicated on the alleged incidents which took place from "mid-late January 2020" to "November .. . 2022" as pleaded in the amended complaint (specifically. ¶¶ 66-68 as predicated on ¶¶ 38-50. with the exception of the stricken demand; for punitive damages): and it. is further
ORDERED that plaintiffs counsel is directed to electronically serve a copy o f this Decision/Order with notice of entry on defendants' counsel and to electronically file an affidavit of service thereof with the Kings County Clerk; and it is further
ORDERED that, in accordance with CPLR 3211 0), defendants shall interpose .an answer to the extant portions of the amended complaint within ten days after the aforementioned electronic service of this Decision-Order with notice of entry by plaintiff s counsel on defendants' counsel.
This constitutes the Decision/Order of the Court.