Opinion
51 Index No. 650940/11 Case No. 2022-03934
04-18-2023
Irving RUDERMAN, Plaintiff–Appellant, v. NEW YORK STATE INSURANCE FUND, Defendant–Respondents, John/Jane Does I-XX, Defendants.
Pardalis & Nohavicka, LLP, New York (Israel Klein of counsel), for appellant. Letitia James, Attorney General, New York (Kristin Cooper Holladay of counsel), for respondent.
Pardalis & Nohavicka, LLP, New York (Israel Klein of counsel), for appellant.
Letitia James, Attorney General, New York (Kristin Cooper Holladay of counsel), for respondent.
Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Richard Latin, J.), entered March 17, 2022, which granted defendant New York State Insurance Fund's (N.Y.SIF) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants John/Jane Does I–XX have not appeared in this action or sought representation from the Attorney General. In any event, the complaint is devoid of facts attributing any discrimination to any anonymous or unnamed person. Thus, the complaint is dismissed as to John/Jane Does I–XX as well as NYSIF.
The court correctly dismissed the complaint alleging age discrimination under the New York State Human Rights Law ( Executive Law § 296[1][a] ). NYSIF proffered legitimate, nondiscriminatory reasons for its refusal to hire plaintiff for its claims services representative or underwriter trainee positions, and plaintiff failed to raise a triable issue of fact as to whether the reasons were pretextual (see Sedhom v. SUNY Downstate Med. Ctr., 201 A.D.3d 536, 160 N.Y.S.3d 243 [1st Dept. 2022] ). It is undisputed that plaintiff was late for his interview, that his application was incomplete, and that his resume lacked details as to his past employment. Further, NYSIF was unable to verify plaintiff's employment with the employers that plaintiff provided. Plaintiff failed to show that any of the nondiscriminatory reasons proffered by NYSIF were "false or unworthy of belief" and that age discrimination was the real reason for its refusal to hire him ( DeFreitas v. Bronx Lebanon Hosp. Ctr., 168 A.D.3d 541, 541, 92 N.Y.S.3d 27 [1st Dept. 2019] ; see also Kwong v. City of New York, 204 A.D.3d 442, 444, 167 N.Y.S.3d 9 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1174, 174 N.Y.S.3d 697, 195 N.E.3d 532 [2022] ).
Although plaintiff's score on the New York State Professional Careers Test was higher than those of the selected candidates, state employers are not required to select the highest scoring individual, and factors outside of performance on the test may be taken into consideration in making civil service appointments (see Matter of Cassidy v. Municipal Civ. Serv. Commn. of City of New Rochelle, 37 N.Y.2d 526, 529, 375 N.Y.S.2d 300, 337 N.E.2d 752 [1975] ). Plaintiff's contention that his undergraduate degree and years of experience automatically make him more qualified than the selected candidates is unavailing, particularly in light of NYSIF's showing that other candidates were better suited for the roles based on the many factors considered.
Finally, most of NYSIF's interviewers were in plaintiff's protected class, and NYSIF ultimately selected candidates from a broad age range, including at least one candidate who was the same age as plaintiff (see Miller v. News Am., 162 A.D.3d 422, 422, 78 N.Y.S.3d 82 [1st Dept. 2018] ). These factors weigh against any inference of discrimination (see id. ; see also Sedhom, 201 A.D.3d at 537, 160 N.Y.S.3d 243 ), and undermine plaintiff's claim that the interviewers expressly told him that he would not be hired due to his age.
Plaintiff's challenges to the dismissal of his claims under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107[1][a]) are not properly before this Court, as he had withdrawn those claims pursuant to a stipulation and filed an amended complaint asserting only causes of action under the New York State Human Rights Law (see Weinstein v. City of New York, 103 A.D.3d 517, 517, 959 N.Y.S.2d 433 [1st Dept. 2013] ). In any event, as an "instrumentality of the State," NYSIF is not subject to the provisions of the New York City Human Rights Law ( Jattan v. Queens Coll. of City Univ. of N.Y., 64 A.D.3d 540, 542, 883 N.Y.S.2d 110 [2d Dept. 2009] ; see also Ajoku v. New York State Off. of Temporary & Disability Assistance, 198 A.D.3d 437, 437–438, 152 N.Y.S.3d 566 [1st Dept. 2021], lv denied 38 N.Y.3d 908, 2022 WL 2126292 [2022] ).