Dume v. City of New York

2025 NY Slip Op 30992(U)
New York Supreme Court, New York County·Decided March 26, 2025·No. Index No. 155486/2023·Unpublished

Opinion

Dume v City of New York

2025 NY Slip Op 30992(U)

March 26, 2025

Supreme Court, New York County Docket Number: Index No. 155486/2023 Judge: Ariel D. Chesler

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 03/27/2025 12:55 PM INDEX NO. 155486/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 03/26/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 62M -----------------------------------------------------------------------------------X JOSE DUME, INDEX NO. 155486/2023

Plaintiff,

MOTION DATE 01/25/2024 -v-

MOTION SEQ. NO. 001 CITY OF NEW YORK, PETER FIORILLO, SEAN PITMAN, JOHN WILSON, ROSEMARY DAVIS,

Defendants. DECISION + ORDER ON MOTION

-----------------------------------------------------------------------------------X

HON. ARIEL D. CHESLER:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 were read on this motion to/for DISMISS .

This is an action by a New York City police officer for discrimination based on national origin, and retaliation for engaging in protected activities. Defendants now move to dismiss Plaintiff’s First Amended Complaint (“FAC”) (NYSCEF Doc. No. 2) for failure to state a claim (CPLR 3211[a][7]). Plaintiff opposes the motion and cross-moves for leave to file a Second Amended Complaint (“SAC”).

FACTS / THE COMPLAINT

Plaintiff is a white male Muslim of Hispanic and Dominican origin who joined the New York Police Department (“NYPD”) in 2012 (FAC, ¶¶ 2-4. 10). Since December 23, 2022, he has been a Sergeant in Public Service Area (“PSA”) 4 (id., ¶¶ 199, 203). Prior to this, he was a Detective assigned to Manhattan North Narcotics since 2017, where he was primarily responsible for buying illegal drugs from drug dealers. From 2017 through 2020, Plaintiff had

evaluation scores of 4.5 or 5.0 out of 5.0 performance evaluations. Due to his stellar 155486/2023 DUME, JOSE vs. CITY OF NEW YORK ET AL Page 1 of 14 Motion No. 001

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performance, he was promoted to Detective on 3rd Grade on December 21, 2018 (id., ¶¶ 16-18, 21, 26).

During the relevant times, plaintiff reported to defendant Sean Pitman, a white male Sergeant one rank higher than plaintiff. Pitman reported to non-party Lieutenant Ramirez, a Hispanic male who reported to non-party Captain Allen, a Black male. Allen, in turn, reported to defendant Sean Wilson, a Deputy Inspector, and Wilson reported to defendant Peter Fiorillo, also a Deputy Inspector. Defendant Rosemary Davis is Lieutenant and the Integrity Control Officer of the Manhattan Detective Bureau (id., ¶¶ 6-9. 35-38, 182).

Plaintiff alleges on July 14, 2020, Fiorillo complimented plaintiff’s “great work” but then added that he “knew [Plaintiff] liked buying drugs.” Plaintiff found this statement to be “weird”, but indicative of how upper management treated undercover officers, who are mostly minorities because they are tasked with making drug buys in minority neighborhoods (id., ¶¶ 27-28).

In late 2020, there were several investigations in misuse of overtime by officers in plaintiff’s unit. Plaintiff, who had made an anonymous complaint about what he believed to this fraudulent practice, was rumored to have been the cause of this scrutiny. On the orders of Fiorillo, however, plaintiff was informed that an Inspector could approve overtime even it was not being earned, and the Internal Affair Bureau closed the investigation after Fiorillo did so. Nevertheless, plaintiff was given a perfect 5.0 performance evaluation for 2021 (id., ¶¶ 40-41 47- 51, 65-66).

Plaintiff had passed the civil service examination for Sergeant sometime between 2017 and 2020 but deferred the promotion as he enjoyed working as an undercover officer. He again deferred it in the summer of 2022. Around that time, Pitman informed plaintiff that Fiorillo was unhappy that he was not taking unearned overtime. To punish plaintiff for not committing that

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fraud, Fiorillo sought to strip plaintiff of his overtime but was forced to find other ways to harass him for objecting to the illegal practice. Sometime later, Pitman began inquiring more seriously about when plaintiff would be taking a promotion to Sergeant, which plaintiff understood to mean that Pitman wanted plaintiff out of the unit (id., ¶¶ 22-23, 55-60, 67-68).

Plaintiff’s son and son’s mother are both Ukrainian, with family in the Ukraine who had fled to Poland to avoid the war with Russia (id at ¶¶52-54). In July 2022, plaintiff filed a leave of absence form (known as a “28”) requesting nine weeks off between July and September 2022 to help his partner’s family (FAC at ¶¶ 70-72). The request was approved by Ramirez, Fiorillo, and a Sergeant Shanahan three weeks prior to plaintiff’s scheduled leave date (id at ¶¶73-75). Following the approval, Fiorillo asked plaintiff if he needed any support from the NYPD related to his partner’s family problem and offered to send plaintiff to either to Psychological Services, the Employee Assistance Unit or Police Organization Providing Peer Assistance, which plaintiff declined (id., ¶¶ 70-78).

In the Fall of 2022, several officers from plaintiff’s Unit attended an event called the Electric Zoo Music Festival against the orders of Fiorillo. On September 2, 2002, Pitman called plaintiff when he was in Europe to ask if plaintiff could speak with one of his Electric Zoo contacts to allow the officers into the VIP section to talk to women. Plaintiff missed the call, but the next day sent messages on a unit group chat stating that whoever wanted to go to Electric Zoo could do so on duty without supervision. Several officers got into the VIP room and stole expensive bottles of champagne, and word spread through the group chat of this misconduct. Plaintiff, who was monitoring the group chat, waited to see if anyone would be disciplined, but over the course of the weekend began deleting every text in the chat referencing the Electric Zoo. (id., ¶¶ 79-87).

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On September 6, 2022, after seeing that none of the officers were placed on modified duty, plaintiff filed an anonymous complaint with Internal Affairs. In it, he explained that Pitman had authorized officer to go to the Electric Zoo; that a group of officers got drunk while possessing firearms; that they used department vehicles to drive intoxicated co-workers home; that one officer had “sex with a drunk female,” that “[t]he people involved… deleted messages tampering with the current investigation”. Plaintiff also attached screenshots showing the deletion of messages. Plaintiff filed another complaint after no action was immediately taken (id., ¶¶ 88-92).

Plaintiff alleges that he suffered retaliation for reporting the misconduct. About a week later, a co-worker informed plaintiff that he was believed to have filed the complaint. A week after that, Wilson asked Pitman who approved plaintiff’s six-week leave, and plaintiff then began hearing from co-workers that the defendants were speaking about him in a derogatory manner and threatening him with command discipline if he did not return from his approved vacation (id., ¶¶ 93-97).

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