Simmons v. City of New York

2024 NY Slip Op 33619(U)

• Court: New York Supreme Court, New York County
• Decided: October 8, 2024
• Docket: Index No. 157761/2023
• Status: Unpublished

Opinion

Simmons v City of New York 2024 NY Slip Op 33619(U) October 8, 2024 Supreme Court, New York County Docket Number: Index No. 157761/2023 Judge: Jeanine R. Johnson 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. INDEX NO. 157761/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/10/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JEANINE R. JOHNSON PART 52-M Justice -------------------X INDEX NO. 157761/2023 SHARDESE SIMMONS, MOTION DATE 11/30/2023 Plaintiff, MOTION SEQ. NO. 001 - V -

THE CITY OF NEW YORK, THE NEW YORK CITY DECISION + ORDER ON DEPARTMENT OF CORRECTION MOTION Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for DISMISS

Upon the foregoing documents and oral argument held on 05/22/2024, Defendants-The

City of New York (hereinafter "The City") and The New York City Department of Correction's

(hereinafter "Defendant-DOC") motion to dismiss Plaintiff-Shardese Simmons's complaint

pursuant to CPLR § 321 l(a)(1)(5) & (7) is granted only as to the dismissal of Defendant-DOC

because it is not a suable entity and denied in all other respects.

DOC Is Not a Suable Entity

Pursuant to section 396 of the New York City Charter, all legal actions and proceedings

for the recovery of penalties for the violation of any law shall be brought against the City of New

York and not against a city agency. See New York City Charter, Ch. 17 396. "Suits against the

New York City Department of Correction are suits against a non-suable entity and are properly

dismissed upon that basis." See Echevarria v. Dep 't of Correctional Servs., 48 F.Supp.2d 388,

391 (S.D.N.Y. 1999). Thus, this Court amends its decision on the record at oral argument

denying the dismissal of Defendant.:.._DOC and grants that branch of the motion to dismiss.

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CPLR § 321 l(a)(l) & (5)

On a motion to dismiss pursuant to CPLR § 321 l(a)(l), the movant asserts that "a defense

is founded upon documentary evidence", and pursuant to CPLR § 321 l(a)(5), the movant asserts

that "the cause of action may not be maintained because of an arbitration and award, collateral

estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment,

release, res judicata, statute of limitations, or statute of frauds."

Settlement and Compromise, Waiver and Release Claim

The City argues that Plaintiffs claim is barred under the doctrines of settlement and

compromise and waiver and release. The City contends that Plaintiff waived her right to bring a

claim for employment discrimination because she violated a negotiated Plea Agreement that

included an 18-month probationary period, during which she could be terminated for time and

leave violations. (NYSCEF Doc. No. 9). Plaintiff alleges that she was.threatened with termination

unless she agreed to the Plea Agreement and contends that the agreement "does not provide [ ... ]

relief[ ... ] for discrimination on the basis ofrace, gender, or disability." (NYSCEF Doc. No. 14).

This Court finds that Plaintiff did not waive her rights to bring a claim for employment

discrimination. Pursuant to the Plea Agreement, she waived her rights under Civil Service Law

Section 75 and.Section 76, which applies to appeals from determinations in disciplinary hearings.

See Civil Service Law §§75-76. Here, Plaintiff is asserting employment discrimination claims

under State and City HRL, thus, Plaintiffs claims are not barred. See generally Johnson v.

Lebanese American University, 84 A.D.3d. 427 (1st Dep't 2011) (the court held that plaintiff did

not waive his rights to bring an action for employment discrimination because issues of fact existed

as to whether plaintiff intended to relinquish employment discrimination claims).

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CPLR § 3211 (a)(7)

On a motion to dismiss pursuant to CPLR § 3211 (a)(7), for failure to state a cause of action,

the pleading is to be afforded a liberal construction. Leon v. Martinez, 84 N.Y.2d 83 (1994). This

Court is required to "determine only whether the facts alleged fit within any cognizable legal

theory." Bernberg v. Health Mgmt. Sys., 303 A.D.2d 348, 349 (2d Dep't 2003). However,

allegations comprising bare legal conclusions are not entitled to the same consideration. See

Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 (2017) quoting Simkin v. Blank, 19

N.Y.3d 46_ (2012) .

.Race and Gender Discrimination Claim

The City's motion to dismiss Plaintiffs claims of race and gender discrimination is

denied. To sufficiently allege a prima facie case of employment discrimination under State HRL

and City HRL, the plaintiff must demonstrate they are: (1) a member of a protected class, (2)

qualified to hold their position, (3) suffered and adverse employment action, (4) the adverse

employment action occurred under circumstances that give rise to an inference of discrimination.

See Harrington v. City ofNew York, 157 A.D.3d 582 (1st Dep't 2018); see generally Hudson v.

Merrill Lynch & Co., Inc., 138 A.D.3d 511 (1st Dep't 2016).

The City argues that Plaintiff did not allege facts that give rise to an inference that The

City acted with discriminatory animus by terminating her employment. Plaintiff established that

she is a member of a protected class because she identifies as Black/African American and a

woman, she was qualified to hold her position as a Correction Officer, she was terminated from

her position and pied that she was deprived of the terms, conditions, and privileges of her

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employment under circumstances that inference discrimination. Affording Plaintiff the benefit of

every favorable inference, this Court finds that Plaintiff sufficiently ple_d a cause of action for

race and gender discrimination under State HRL and City HRL. Therefore, The City's motion to

dismiss Plaintiffs race and gender discrimination claims are denied.

Disability Discrimination Claim

The City's motion to dismiss Plaintiffs claim of disability discrimination is denied. In

addition to the Harrington factors, to sufficiently allege a prima facie case of disability

discrimination under State HRL and City HRL, "the plaintiff must demonstrate that he or she

suffered from a disability and that disability caused the behavior for which they were

terminated." Pimentel v. Citibank, NA., 29 A.D.3d 141, 144 (1st Dep't 2006). Under State HRL

disability is defined as "a physical, mental, or medical impairment ... which upon the provision of

reasonable accommodations, does not prevent the complainant from performing in a reasonable

manner the activities involved in the job or occupation sought or held." Id. at 1.45. Under City

HRL, disability is defined as "any physical, medical, mental, or psychological impairment ... and

an employe has the obligation to 'make reasonable accommodation to enable a person with a

disability to satisfy the essential requisites of a job ... provided that the disability is known or

should have been known by the [employer]."' Watson v. Emblem Health Services, 158 A.D.3d

179, 182 (1st Dep't 2018).

The City argues that Plaintiff failed to plead a cause of action for disability discrimination

because Plaintiff did not allege facts that give rise to an inference that The City acted with

discriminatory animus by terminating her employment. (NYSCEF Doc. No. 9). The City

contends that Plaintiff failed to show that she is a member of a protected class by establishing

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(NYSCEF Doc. No. 2). Plaintiff argues that The City was aware of her disability because, prior

to her termination, she was authorized to be absent from work pursuant to authorization by the

Health Management Division. (NYSCEF Doc. No. 14). Plaintiff contends that her termination

was based on disability discrimination because-although she had leave authorizations-she was

charged with misconduct, threatened with termination at an administrative hearing unless she

agreed to a probationary term of 18-months, and ultimately terminated for excessive use of leave

due .to the disability.

This Court finds that Plaintiff sufficiently pled a cause of action for disability discrimination.

Plaintiff alleged a disability within the meaning of State HRL and City HRL and suffered an

adverse employment action because of the disability. Thus, The City's motion to dismiss

Plaintiffs disability discrimination claim is denied.

Accordingly it is hereby,

ORDERED that Defendants- The City of New York and The New York City Department of

Correction's motion to dismiss is granted with respect to dismissal of Defendant-DOC, it is

further

ORDERED that Defendants-The City of New York and The New York City Department of

Correction's motion to dismiss is denied in all other respects

ORDERED that all claims against Defendant -The New York City Department of Correction

are dismissed, it is further ·.

ORDERED that the action is severed and continued against the remaining Defendant-

The City of New York; it is further

ORDERED that the caption is amended to read as follows:

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---------------------X SHARDESE SIMMONS,

Plaintiff,

-v- THE CITY OF NEW YORK

Defendant. ---------------------X

it is further;

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; it is further,

ORDERED that counsel for the moving party shall serve a copy of this order with notice

of entry upon the Clerk of the Court, who are directed to mark the court's records to reflect the

change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-

Filing" page on the court's website).

This constitutes the Decision and Order of the Court.

10/8/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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