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PETITIONERS’ EMPLOYMENT DISCRIMINATION AND RETALIATION CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW AGAINST THE NYC DEPARTMENT OF TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined petitioners’ retaliation and discrimination claims against the NYC Department of Transportation (DOT) should not have been dismissed. The facts of the case are too complex to fairly summarize here:

It is undisputed that petitioners sufficiently stated the first two elements of an employment discrimination claim on behalf of Bharat and Kubair under both the State and City HRLs[Human Rights Law’s] — namely, that they are both members of a protected class and were well qualified for their respective positions …. Petitioners also sufficiently stated the third element — that they were adversely (State HRL) or differently treated (City HRL) …. In particular, petitioners allege that DOT’s failure to upgrade Bharat to SMME II status (a position with greater salary and pension benefits) was discriminatory conduct as a less qualified white employee received the upgrade. * * *

Bharat’s allegations are sufficient, at the pleading stage, to permit the inference that the reason he was not awarded an upgrade and the determination was issued against him was because of his involvement in the prior federal action against the DOT, which resulted in the issuance of a consent decree that subjected the DOT to significant damages … . The petition provides additional support for an inference of retaliation in the fact that an employee with less experience was upgraded over Bharat shortly after the consent decree was issued. Matter of Local 621 v New York City Dept. of Transp., 2019 NY Slip Op 08014, First Dept 11-6-19

 

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PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s employment discrimination action could go forward:

Plaintiff, Stevenson Petit, commenced this employment discrimination action on or about July 1, 2016, against his former employer, the Department of Education (DOE). Plaintiff was hired by the DOE in 1994 as a paraprofessional. In 2010, he became a guidance counselor at the Tilden Educational Campus and received tenure.

Plaintiff, a 55-year-old black male from Haiti, who alleges that he studied voodoo, but does not practice it, asserts that he was discriminated against by the principal of the school, Marina Vinitskaya (a Caucasian woman), due to his Haitian origin and her belief that he is a voodoo priest. Since his hiring in 2010, plaintiff had no performance issues until Vinitskaya became the school’s principal in the 2008-2009 school year. He asserts that Principal Vinitskaya then began creating a hostile work environment, by targeting him due to his Haitian origin. Plaintiff asserts that Principal Vinitskaya falsely accused him of misconduct, subjecting him to an Office of Special Investigations investigation, during which Vinitskaya falsely accused plaintiff of being a voodoo priest.

Plaintiff also asserts that Principal Vinitskaya assigned him to an unsanitary basement office upon his return to Tilden Educational Campus from a temporary administrative office assignment. Plaintiff asserts that Principal Vinitskaya did this maliciously in disregard of his seniority even though there were other available offices. Reportedly, both plaintiff and his union submitted administrative complaints to no avail. Ultimately, Principal Vinitskaya demoted plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

Crediting plaintiff’s allegations for the purpose of this pre-answer, pre-discovery motion to dismiss the complaint …, we find that the complaint states a causes of action for discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws. These allegations are sufficient to give defendant DOE “fair notice” of the nature of plaintiff’s claims and their grounds … . Petit v Department of Educ. of the City of N.Y., 2019 NY Slip Op 07990, First Dept 11-7-19

 

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THE TRIAL COURT PROPERLY PRECLUDED DEFENDANTS FROM CALLING PLAINTIFF’S TREATING PHYSICIANS AS WITNESSES IN THIS POLICE EXCESSIVE FORCE CASE BECAUSE OF INADEQUATE NOTICE AND THE TRIAL COURT PROPERLY ACCEPTED PLAINTIFF’S REDACTIONS OF THE MEDICAL RECORDS BECAUSE DEFENDANTS FAILED TO SUGGEST THEIR OWN REDACTIONS (FIRST DEPT).

The First Department determined the trial court properly precluded the defendants to call plaintiff’s (Walid’s) treating physicians as witnesses and properly redacted plaintiff’s medical records. Plaintiff, a teenager with autism, brought this action against police officers for assault, battery and use of excessive force. Defendants did not give timely notice of their wish to call the treating doctors and did not supply their own suggested redactions:

We find that, under the circumstances, the trial court did not improvidently exercise its discretion in precluding defendants from introducing testimony from Walid’s treating doctors at Ferncliff Manor. Defendants failed to disclose any of these witnesses until four days before trial, after having previously affirmatively represented to the court that they did not intend to call any witnesses. The court and plaintiffs relied on this representation in estimating the length of trial and selecting a jury. In view of the trial court’s broad authority to control its courtroom, it was not unreasonable for the court to decline to add these witnesses and prolong the trial when a jury had already been chosen (twice) based on certain representations about its length … .

The trial court also did not improvidently exercise its discretion in allowing only a limited subset of Walid’s records from Ferncliff Manor to be admitted into evidence. It is clear that these records required at least some redaction, including to eliminate double hearsay … and propensity evidence … . Because defendants refused to propose any redactions, after having been given ample opportunities to do so, the trial court was justified in adopting plaintiffs’ proposed redactions instead. Even if defendants are correct that the complete records contain additional relevant evidence that should not have been excluded, having failed to propose any redactions of their own, defendants cannot now complain that the records should have been redacted less heavily. Walid M. v City of New York, 2019 NY Slip Op 07739, First Dept 10-29-19

 

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ALTHOUGH THE EXCUSE WAS INADEQUATE, THE CITY HAD ACTUAL NOTICE OF THE HOLE PETITIONER STEPPED IN AND DELAY IN FILING THE NOTICE OF CLAIM DID NOT PREJUDICE THE CITY, PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s motion for leave to file a late notice of claim in this slip and fall case should have been granted. Although the excuse was inadequate, the city had actual notice and was not prejudiced by the delay:

Petitioner’s assertion that he was unaware of the requirement that he file a notice of claim within 90 days of his accident is not a reasonable excuse for failing to file a timely notice … . His contention that his injuries prevented him from timely filing a notice of claim is not an acceptable excuse, because he failed to provide any medical documentation to support his claimed incapacity … . Notwithstanding, his failure to establish a reasonable excuse for not timely filing a notice of claim is not fatal … .

The City obtained actual notice of the accident within a reasonable time after the 90-day period expired … . It does not contest petitioner’s assertion that the condition of the hole remained unchanged at the time he sought leave … . Although petitioner does not address whether anyone saw the accident, the bare claim that the delay would make it difficult for the City to locate witnesses is insufficient to establish prejudice … . Matter of Montero v City of New York, 2019 NY Slip Op 07732, First Dept 10-29-19

 

RES IPSA LOQUITUR DOCTRINE MAY APPLY IN THIS ELEVATOR MALFUNCTION CASE (FIRST DEPT).

The First Department determined the res ipsa loquitur doctrine may apply to this elevator malfunction case and defendant’s motion for summary judgment was properly denied:

Summary judgment was properly denied in this action where plaintiff was injured when the elevator door in defendant’s building closed unexpectedly on her hand as she attempted to exit. Defendant has failed to establish, as a matter of law, that res ipsa loquitur is inapplicable to this case … . In order for the doctrine to apply, three elements must be established: 1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must be cause by an agency or instrumentality within the exclusive control of defendant; and 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff … . The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may -— but is not required to -— draw the permissible inference … . Here, plaintiff claims that she was injured while attempting to exit an elevator in defendant’s building, and that the elevator which malfunctioned was within the exclusive control of defendant. Elevator malfunctions are circumstances giving rise to the possible application of res ipsa loquitur to prove negligence … . Carter v New York City Hous. Auth., 2019 NY Slip Op 07722, First Dept 10-29-19

 

COURT SHOULD HAVE INQUIRED OF JURORS WHETHER THEIR CONCERNS ABOUT NOT BEING PAID BY THEIR EMPLOYERS DURING JURY DUTY WOULD AFFECT THEIR ABILITY TO RENDER AN IMPARTIAL VERDICT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial judge should have conducted further inquiry when three jurors stated that they could not continue deliberating because they were not being paid by their employers for the days they were on jury duty:

The court should have granted the defense request for inquiries into whether the financial pressure the jurors were experiencing had any bearing on their ability to deliberate fairly. In People v Hines (191 AD2d 274 [1st Dept 1993], lv denied 81 NY2d 1074 [1993]), this Court held that although “financial hardship is generally not a sufficient reason to warrant discharge when the trial is near completion,” the trial court “should have ascertained whether the juror’s financial difficulties would have affected his ability to deliberate impartially” (id. at 276). Similarly, in People v Cook (52 AD3d 255, 256 [1st Dept 2008], lv denied 11 NY3d 735 [2008]), we observed that “a juror’s personal or financial inconvenience alone would be insufficient to establish the requisite manifest necessity” for a mistrial, but we went on to state that the fact that “the juror was unable to declare her continued ability to deliberate fairly” weighed in favor of a mistrial.

Here, the jury’s note raised the possibility that one or more of the jurors referred to was unqualified, and the fact that they did not specifically volunteer, in their colloquies with the court, that financial pressures might compromise their impartiality did not obviate the necessity of an inquiry. People v Alexander, 2019 NY Slip Op 07715, First Dept 10-29-19

 

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK CONSTITUTED ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 241 (6); ACTION AGAINST OUT-OF-POSSESSION LANDLORD PROPERLY DISMISSED, NO SUPERVISORY CONTROL OF THE WORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment should not have been granted in this Labor Law 241 (6) action. But action against the out-of–possession landlord was properly dismissed because the landlord did not exercise and supervisory control over the work:

Plaintiff alleges that he was injured while installing a refrigeration condenser unit at premises owned by Boss and leased by Antillana. We find that the motion court improperly granted Antillana’s motion for summary judgment dismissing the Labor Law § 241(6) claim. Plaintiff was engaged in an activity within the purview of Labor Law § 241(6). Plaintiff worked at the subject premises during the build-out installing three refrigeration system condensers, which weighed about 3000 pounds and had to be moved with a forklift. Three weeks after the store was opened, plaintiff was asked to install an additional condenser which weighed about 200 pounds. The president of Antillana acknowledged that there had been a renovation project underway at the premises before plaintiff’s accident.

We find that there is an issue of fact whether the subsequent installation of the condenser constituted an “alteration” of the premises, which falls within the ambit of “construction” work under Labor Law § 241(6) … .

We also find triable issues of material fact as to whether Antillana violated 12 NYCRR 23-1.25(d), (e)(1), (e)(3), and (f), relied upon by plaintiff to support his Labor Law § 241(6) claim. Rodriguez v Antillana & Metro Supermarket Corp., 2019 NY Slip Op 07714, First Dept 10-29-19

 

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SPECIAL NEEDS STUDENT’S STATUTORY ACTIONS AGAINST THE NYC DEPARTMENT OF EDUCATION’S OFFICE OF PUPIL TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED; THE AUTISTIC SIX-YEAR-OLD STUDENT WAS TRANSPORTED TO SCHOOL ON A FULL-SIZED BUS, GENERATING NINE INCIDENT REPORTS IN A SIX-WEEK PERIOD, INSTEAD OF THE MINI-BUS REQUIRED BY THE INDIVIDUALIZED EDUCATION PROGRAM (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, over and extensive dissenting opinion, determined that a special needs student’s statutory actions against NYC’s Office of Pupil Transportation should not have been dismissed. The opinions are too detailed and comprehensive to fairly summarize:

[Plaintiff student, I.M., who was six at the time, is] a nonverbal diapered child with autism spectrum disorder, moderate to severe intellectual disability, and attention deficit disorder. His 2005-06 Individualized Educational Program (IEP) stated, in bold faced type, that he required a “mini-bus” to transport him to and from school … . However, due to a computer coding error he was placed on a full-sized school bus operated by defendant the Pioneer Transportation Corporation (Pioneer) from September 8, 2005 through October 19, 2005. During this period, Pioneer filed nine incident reports with I.M.’s school in connection with these trips. I.M.’s family also repeatedly complained to I.M.’s school and to the New York City Department of Education’s Office of Pupil Transportation (OPT). The problem was not rectified until October 20, 2005, when I.M. was placed on a minibus in accordance with his IEP.

Plaintiff … appeals from Supreme Court’s dismissal of his claims under section 504(a) of the Rehabilitation Act of 1973 … (the RA), Title II of the Americans with Disabilities Act of 1990 (the ADA), section 296(2)(a) of the New York State Executive Law, and section 8-107 of the Administrative Code of the City of New York (the State and City HRLs). Supreme Court dismissed these statutory claims on the basis that “[t]here is no evidence that the infant was purposefully discriminated against as a result of his disability when he was placed on the full-sized bus.” … It let stand plaintiff’s common-law negligence and gross negligence claims. The only issue on appeal is whether Supreme Court properly dismissed plaintiff’s statutory discrimination claims.

We … reverse … and reinstate these statutory discrimination claims against the Board of Education of the City of New York, its employees Lorraine Sesti and Joanne Richburg, and OPT (collectively DOE) … . We affirm Supreme Court’s dismissal of the statutory claims against Pioneer but on different grounds. Viewing the evidence, much of which is uncontested, … issues of fact exist as to whether DOE violated the discrimination statutes by acting with bad faith, gross misjudgment, or deliberate indifference to [plaintiff’s] rights to be transported by minibus, thereby depriving him of a FAPE [free appropriate public education]. A reasonable jury could conclude that a simple bureaucratic mistake was compounded by inaction into a violation of the RA, the ADA and the State and City HRLs. I.M. v City of New York, 2019 NY Slip Op 07756, First Dept 10-29-19

 

JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE WERE ADEQUATE, ARGUMENTS TO THE CONTRARY WERE NOT PRESERVED (FIRST DEPT).

The First Department determined the jury was properly instructed on the justification defense and any argument that the court’s instructions and the jury sheet did not comply with Velez (requiring the instruction that acquittal on the top count based upon the justification defense requires that deliberations on the lesser counts stop) was not preserved:

Defendant also asked the court, pursuant to People v Velez (131 AD3d 129 [1st Dept 2015]) and its progeny, to charge that, if the jury acquitted him of the higher count of attempted first degree assault based on justification, then it should not continue with deliberations on the lower count of second-degree assault.

The court charged the jury on the defense of justification to prevent a burglary, but declined to give a justification charge based on defense of a person. The court also told the jury that if they find defendant not guilty of either count in the indictment by reason of justification, they must also find defendant not guilty of the other count as well “because justification is a complete defense to both counts of the indictment.” Finally, the court instructed the jury on the elements of each crime, with the third element of both being “that the defendant was not justified.” During deliberations, the jury asked the court for reinstruction on the elements of the charged crimes. In a supplemental charge, the trial court reread the elements of each offense, with both including the element “that the defendant was not justified.” The jury returned a verdict finding defendant not guilty of attempted assault in the first degree, but guilty of assault in the second degree.

On appeal, defendant contends that the court’s initial and supplemental charges did not comply with Velez, and that the verdict sheet erroneously omitted the issue of justification. These claims are unpreserved. During a colloquy on the Velez issue, the court showed defense counsel a copy of its proposed charge, and defense counsel expressly agreed that it “satisfies Velez.” Further, defense counsel made no objection to the charge as given. As to the supplemental charge, defense counsel never asked the court to repeat its Velez instruction, and did not object to its absence after the charge was given. Likewise, defendant made no objections to the verdict sheet. Under the circumstances, we decline to exercise our interest of justice jurisdiction to review these unpreserved claims. People v Davis, 2019 NY Slip Op 07754, First Dept 10-29-19

 

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INSURER’S ACCIDENT INVESTIGATION REPORT IS PRIVILEGED AND NOT DISCOVERABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an insurer’s accident investigation report is privileged and not discoverable:

Documents in an insurer’s claim file, including an accident investigation report, that were prepared for litigation against its insured are immune from disclosure (see CPLR 3101[d][2] … ). Although documents in a first-party insurance action prepared in an insurer’s ordinary course of business in investigating whether to accept or reject coverage are discoverable (see CPLR 3101[g] … ), there is no indication that such documents are being protected here. In the absence of any demonstration of hardship by plaintiff, the insurer’s accident investigation report remains privileged … . Dabo v One Hudson Yards Owner, LLC, 2019 NY Slip Op 07751, First Dept 10-29-19

 

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