Armstrong v SENSORMATIC/ADT

[*1] Armstrong v SENSORMATIC/ADT 2009 NY Slip Op 52264(U) [25 Misc 3d 1223(A)] Decided on March 27, 2009 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2009
Supreme Court, Bronx County

Ronald K. Armstrong, Plaintiff

against

SENSORMATIC/ADT, Defendant.



22031/2005



For Plaintiff

David Zevin Esq.

8A Oaklawn Avenue, Glen Head, NY 11545

For Defendant

Jennifer Rygiel-Boyd Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

521 5th Avenue, New York, NY 10175

Lucy Billings, J.

Plaintiff sues defendant, his former employer, for lost earnings and emotional distress caused by defendant's race and gender discrimination in its employment of him and its retaliation against him because he complained about the discrimination, in violation of New York Executive Law § 296(1)(a) and (e) and (7). Defendant moves to amend its answer, C.P.L.R. § 3025(b), to interpose a defense that the applicable statute of limitations bars plaintiff's claims. C.P.L.R. § 214(2); NY Exec. Law § 297(9). Upon oral argument, for the reasons explained below, the court grants defendant's motion, but concludes that the statute of limitations has little effect in limiting the claims alleged in the complaint.

I.STANDARDS APPLICABLE TO DEFENDANT'S MOTION TO AMEND ITS ANSWER

C.P.L.R. § 3025(b) permits defendant to amend its answer as long as the proposed defense has merit, Sabo v. Alan B. Brill, P.C., 25 AD3d 420, 421 (1st Dep't 2006); Thompson v. Cooper, 24 AD3d 203, 205 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352, 355 (1st Dep't 2005); Watts v. Wing, 308 AD2d 391, 392 (1st Dep't 2003), and the amendment does not unfairly surprise or otherwise substantially prejudice plaintiff. Cherebin v. Empress Ambulance Serv., Inc., 43 AD3d 364, 365 (1st Dep't 2007); Katechis v. Our Lady of Mercy Med. Ctr., 36 AD3d [*2]514, 516 (1st Dep't 2007); Thompson v. Cooper, 24 AD3d at 205; Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d at 354-55. As the party seeking the amendment, defendant must demonstrate the proposed defense's merit. Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d at 355; Pacheco v. Fifteen Twenty Seven Assoc., 275 AD2d 282, 284 (1st Dep't 2000); Non-Linear Trading Co. v. Braddis Assocs., 243 AD2d 107, 116 (1st Dep't 1998). See Spence v. Bear Stearns & Co., 264 AD2d 601, 602 (1st Dep't 1999). Here, plaintiff does not dispute that C.P.L.R. § 214(2)'s limitations period of three years applies. Miccio v. Fits Sys., Inc., 25 AD3d 439 (1st Dep't 2006); Kent v. Papert Cos., 309 AD2d 234, 240 (1st Dep't 2003); Cordone v. Wilens & Baker, 286 AD2d 597, 598 (1st Dep't 2001). See NY Exec. Law § 297(9).

Since plaintiff filed his complaint September 30, 2005, the applicable statute of limitations bars any claims of defendant's discriminatory adverse actions in its employment of plaintiff that accrued before September 30, 2002. Kent v. Papert Cos., 309 AD2d at 240. The issue posed by defendant's motion thus boils down to whether this added defense now would change plaintiff's position or hinder his claims in a way that would have been avoided if the amendment had been pleaded originally, so as now to prejudice plaintiff. Whalen v. Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 (1998); Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 18, 23 (1981); Cherebin v. Empress Ambulance Serv., Inc., 43 AD3d at 365; Valdes v. Marbrose Realty, 289 AD2d 28, 29 (1st Dep't 2001).

II.DEFENDANT'S INEXPLICABLE DELAY

Defendant maintains it was unaware that plaintiff alleged discriminatory actions by defendant that predated September 30, 2002, until he testified about them, including a denied promotion in 1999, at his deposition April 11, 2007. Yet plaintiff responded to this inquiry and other disclosure inquiries by defendant regarding its employment of him before September 30, 2002, and, encountering no statute of limitations in defendant's answer, pursued his own disclosure requests covering the employment relationship before September 30, 2002.

Moreover, plaintiff's amended complaint served March 20, 2006, makes clear that, while plaintiff challenges his employment termination in October 2002, within the limitations period, he also alleges he was denied promotion to the all-Caucasian . . . sales staff, because, he was told, he didn't "want to be a salesman," the "stress" would be too much for him, and he was not familiar with the equipment line, although . . . he in fact had comprehensive knowledge of the line.

Aff. of Jennifer Rygiel-Boyd, Ex. C ¶ 1. See id. ¶¶ 20, 22-27, 29. Then, after he complained "over a period of years" "about the aforementioned racial and gender discrimination," id. ¶ 4, he was "pretextually and retaliatorily terminated from his position." Id. ¶ 5. See id. ¶¶ 28, 50-56, 58, 60-61, 71-74. Significantly, however, plaintiff seeks lost earnings, [*3]compensatory damages for emotional distress and other pain and suffering, and punitive damages only for after September 30, 2002.

Given the specificity of plaintiff's March 2006 amended complaint, defendant fails to demonstrate an excuse for defendant's claimed unawareness, at least from March 2006, of plaintiff's allegations regarding defendant's discriminatory actions before September 30, 2002. Nowhere does defendant explain what plaintiff left undisclosed in the amended complaint that he did not reveal until over a year later at his deposition. In sum, defendant bases its September 2007 motion to amend its answer on facts fully known to defendant almost 18 months earlier and fails to explain why it waited so long. Excelsior Ins. Co. v. Antretter Contr. Corp., 262 AD2d 124, 126 (1st Dep't 1999); Prince v. O'Brien, 256 AD2d 208, 211 (1st Dep't 1998); Cseh v. New York City Tr. Auth, 240 AD2d 270, 271 (1st Dep't 1997). See Valdes v. Marbrose Realty, 289 AD2d at 29.

III.PREJUDICE TO PLAINTIFF FROM DEFENDANT'S DELAY

If plaintiff's conduct, in confusing allegations in his complaint, for example, excuses defendant's delay in seeking the amendment, plaintiff may not claim prejudice to prevent defendant's belated response once plaintiff's essential allegations emerge. If he has omitted allegations he now seeks to include or misrepresented allegations he now seeks to correct, however, such an amendment by him would require the court's permission and allow defendant to amend its answer without leave. Here, plaintiff sticks by his current complaint, and neither party suggests the allegations are subject to misinterpretation.

Yet, even if in this instance defendant lacks an excuse for its delay in seeking the amendment, that unexcused delay dictates denial of defendant's motion only insofar as its delay inflicts prejudice on plaintiff. Antwerpse Diamantbank, N.V. v. Nissel, 27 AD3d 207, 208 (1st Dep't 2006); Norwood v. City of New York, 203 AD2d 147, 148 (1st Dep't 1994). See Excelsior Ins. Co. v. Antretter Contr. Corp., 262 AD2d at 126; Prince v. O'Brien, 256 AD2d at 211; Cseh v. New York City Tr. Auth, 240 AD2d at 271. Although plaintiff cites authority outside the First Department indicating that, beside the amendment's merit, only the length of and reasons for the delay are determinative, the abundant Court of Appeals and First Department authority and the full context of all departments' authority indicate that in those select decisions the delay was prejudicial, Gross, Shuman, Brizdle & Gilfillan v. Bayger, 256 AD2d 1187, 188 (4th Dep't 1998) (citing Rose v. Velletri, 202 AD2d 566, 567 (2d Dep't 1994)), or the amendments lacked merit. Romeo v. Arrigo, 254 AD2d 270, 271 (2d Dep't 1998). See Public Adm'r of Kings County v. Hossain Constr. Corp., 27 AD3d 714, 716 (2d Dep't 2006); Santori v. Met Life, 11 AD3d 597, 598 (2d Dep't 2004); Northbay Constr. Co. v. Banco Constr. Corp., 275 AD2d 310, 311 (2d Dep't 2000).

A.Plaintiff's Claimed Prejudice

While plaintiff may not have caused defendant's unexcused [*4]delay, the prejudice that delay has caused him is imperceptible. He points to the hours spent at his deposition while defendant explored the parties' employment relationship before September 30, 2002, and the interrogatories, document requests, and responses exchanged by both sides, without defendant's objection, also covering the period of employment before September 30, 2002. Nevertheless, even limiting plaintiff's amended complaint to his pretextual and retaliatory termination, by his pleading's own terms or by the statute of limitations defense defendant seeks to interpose, plaintiff needed that disclosure regarding the earlier period to prove the pretext and retaliation, just as defendant needed that disclosure to defend against that claim. See Norwood v. City of New York, 203 AD2d at 149; Northbay Constr. Co. v. Banco Constr. Corp., 275 AD2d at 312. Thus, allowing defendant's newly proposed defense has not caused plaintiff unnecessary disclosure. See Cseh v. New York City Tr. Auth, 240 AD2d at 271. Nor does the new defense inflict the more frequent prejudice, by depriving an opponent of the opportunity to conduct disclosure on the new issue. Excelsior Ins. Co. v. Antretter Contr. Corp., 262 AD2d at 126; Prince v. O'Brien, 256 AD2d at 210.

Plaintiff also suggests that he engaged in settlement negotiations from June 2006 until defendant served its current motion that he would not have engaged in had he believed his claims were limited to the pretextual and retaliatory termination. Were plaintiff's suggestion that he conceded too much under a false impression that his claims were narrower than later determined to be, then the time spent on negotiation might be prejudicial. Here, however, plaintiff maintains the opposite: that he was negotiating under the false impression that his claims were broader than as reduced by his pleading's terms or the statute of limitations. Regardless whether he was diverging from his own pleading, this posture presumably only strengthened his hand. If not, he fails to rebut this presumption with a showing that such negotiations did waste time that he would not have expended or otherwise prejudiced him. He never indicates, for example, that negotiations progressed to where defendant offered an amount that plaintiff now would accept, but now is withdrawn.

As set forth in the amended complaint, plaintiff seeks no damages for the period before he was terminated in October 2002. In opposition to defendant's motion, moreover, he expressly concedes that he would not have earned more had he secured the salesman position. Thus his monetary objective in settlement was and is the same whether or not the statute of limitations cuts off the prior period. B.Actual Effect of Defendant's Proposed Defense

Against this backdrop, defendant's motion is no more than an effort to pin down the meaning of the amended complaint's very terms and to assure that plaintiff's claims do not extend beyond what the amended complaint itself sets forth. While defendant also may seek by this effort to limit the admissibility of evidence regarding the parties' conduct and interaction before [*5]October 2002, the statute of limitations does not so limit the relevance of evidence from before October 2002 if it bears on the reasons for or other relevant circumstances leading to plaintiff's October 2002 termination.

Defendant's conduct for which plaintiff seeks damages is not its refusal to consider him for the salesman position or other treatment of him outside the limitations period, from which he concedes he did not lose any earnings. Defendant's conduct for which he seeks damages is his termination within the limitations period, which did cause him lost earnings and associated damages, and which was retaliatory and motivated by race and gender discrimination. Nevertheless, defendant's reasons or motivation for the termination may be evidenced by its prior treatment of plaintiff, from rejecting him for a salesman position to rebuffing, suppressing, or ignoring his complaints about race and gender discrimination. Kent v. Papert Cos., 309 AD2d at 240-41.

Thus, while plaintiff's claim of a retaliatory and discriminatory termination accrued when plaintiff was terminated in October 2002, e.g., Pinder v. City of New York, 49 AD3d 280, 281 (1st Dep't 2008); Cordone v. Wilens & Baker, 286 AD2d at 597-98, defendant's prior conduct before the limitations period beginning September 30, 2002, is relevant regarding its reasons or motive in terminating him. Kent v. Papert Cos., 309 AD2d at 241; Chefalas v. Taylor Clark Architects, 283 AD2d 174, 175 (1st Dep't 2001); Sogg v. American Airline, 193 AD2d 153, 157, 161 (1st Dep't 1993). See Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 308 (2004); Brennan v. Metropolitan Opera Assn., 284 AD2d 66, 67, 69-70 (1st Dep't 2001). The statute of limitations does not limit the relevance and admissibility of this evidence that plaintiff may introduce regarding defendant's treatment of him and their interactions during his employment, to show its discrimination or retaliation against him within the limitations period. Kent v. Papert Cos., 309 AD2d at 241; Sogg v. American Airline, 193 AD2d at 157. See Forrest v. Jewish Guild for the Blind, 3 NY3d at 308.

In particular, if defendant presents evidence that defendant terminated plaintiff for a legitimate, non-discriminatory reason, then plaintiff may present evidence regarding defendant's treatment of him during his employment to show that the justification defendant offers is a pretext to conceal a discriminatory motive. Kent v. Papert Cos., 309 AD2d at 241; Chefalas v. Taylor Clark Architects, 283 AD2d at 175; Sogg v. American Airline, 193 AD2d at 157, 161. The statute of limitations does not provide defendant a defense because defendant's discriminatory motive for its subsequent adverse action was revealed before the limitations period. Kent v. Papert Cos., 309 AD2d at 241. See Forrest v. Jewish Guild for the Blind, 3 NY3d at 308. Plaintiff's showing, for example, that, leading up to his termination, defendant's rejection of him for a salesman position, reaction to his complaints, or other treatment of him was discriminatory, would raise an inference that defendant's subsequent termination of him "was motivated [*6]

. . . by the same discriminatory reasons." Sogg v. American Airline, 193 AD2d at 161. In sum, the statute of limitations does not bar plaintiff's evidence, but bars only a remedy, regarding defendant's actions before the limitations period, which plaintiff already has excluded from his amended complaint. Kent v. Papert Cos., 309 AD2d at 241.

Finally, even though a statute of limitations of three years governs plaintiff's claims, if plaintiff shows defendant continued a series of identified discriminatory acts starting before the limitations period and extending into it, the statute of limitations would not bar the inclusion of claims for relief relating to the earlier acts in his complaint. Resnick v. Town of Canaan, 38 AD3d 949, 953 (3d Dep't 2007); Town of Lumberland v. New York State Div. of Human Rights, 229 AD2d 631, 634 (2d Dep't 1996). See 9 N.Y.C.R.R. § 465.3(e). This result would ensue even if plaintiff suffered no economic impact from the earlier acts, as long as they affected his work environment and performance in a discriminatory as well as continuous manner. Town of Lumberland v. New York State Div. of Human Rights, 229 AD2d at 634. Defendant's denial of a promotion to plaintiff and its subsequent termination of him may not necessarily be viewed "as two completely separate and discrete incidents of discrimination, but, rather, . . . as an unbroken continuum, with discriminatory denial of the promotion serving as the direct consequential catalyst of the ultimate termination of plaintiff's employment." Sogg v. American Airline, 193 AD2d at 162.

IV.CONCLUSION

Although defendant's only excuse for waiting so long to serve its motion to amend its answer is a sudden, unexplained concern that plaintiff's claims extended beyond what is expressed in his amended complaint, by the same token, the proposed statute of limitations defense does not perceptibly alter the posture of this action and thus prejudice plaintiff. As prejudice is the overarching test for denying amendment to a pleading, because of this amendment's negligible effect, the court grants defendant's motion. C.P.L.R. § 3025(b).

Nonetheless, two points bear emphasizing, in view of defendant's apparent expectation to the contrary. (1) First, the statute of limitations defense does not bar evidence from more than three years before plaintiff commenced his action alleging his termination claims. Further, if plaintiff shows "a continuous series of discriminatory acts," leading up to his termination, he may claim violations of Executive Law § 296 before the limitations period, as long as specified acts in that series continued within the limitations period. Resnick v. Town of Canaan, 38 AD3d at 953.

Since defendant's proposed amended answer attached to its notice of this motion is unsigned and undated, defendant shall serve and file an executed copy of the same answer within 10 days after service of this order with notice of entry. This decision constitutes the court's order. The court will mail copies to the parties' attorneys. [*7]

DATED: March 27, 2009

_____________________________

LUCY BILLINGS, J.S.C.