Fruchtman v City of New York

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Fruchtman v City of New York 2012 NY Slip Op 30247(U) January 30, 2012 Sup Ct, NY County Docket Number: 113520/08 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 21212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY , PRESENT: - m c BARBARA JAFFE J.S.C. Index Number : 113520/2008 FRUCHTMAN, SUNITA vs. CITY OF NEW YORK SEQUENCE NUMBER : 004 - Lj- - PART INDEX NO. MOTION DATE MOTION SEQ. NO. REARGUMENTlRECONSlDERATlON The followlng papers, numbered I to ,were read on thli motion toflor Notlce of MotlonlOrder to Show Cauio Answerlng Affldavlts - Affldavlts - Exhlblb INo(+ INO(@). INo(@. - Exhlblta Replying Affldavik Upon the foregolng papem, it is ordered that thio motion is F I * LE D NEW YORK COUNTY CLERK'S OFFICE / I /' I I. CHECK ONE: 2. 'JAN s f) ..................................................................... CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: ,J.S.C. I I MOTION IS: ................................................ CASE DISPOSED I7GRANTED N-FINAL DISPOSITION $IDENIED 0SETTLE ORDER 0DO NOT POST GRANTED IN PART OTHER 0SUBMIT ORDER [7 FIDUCIARY APPOINTMENT REFERENCE [* 2] Index No. 113520/08 Plaintiff, Motion Date: Motion Seq. No.: 11/1/11 004 -againstDECISION AND ORDER THE CITY OF NEW YORK, DEPARTMENT OF ENVIRONMENTAL PROTECTION, GEROULD MCCOY, KEVIN GOYETTE, ANTHONY BELLANTONI, FILED FEB 02 2012 NEW YORK COUNTY CLERKS OFFICE F& plaintiff Shelley-Ann Quilty, Esq. Meenan & ASSOCS., LLC 64 Fulton St., Ste. 502 New York, NY 10038 212-226-7334 For defendants: Daniel Chiu, ACC Michael A. Cardozo Corporation Counsel 100 Church St., Rm. 2-1 18 New York, NY 10007 212-788-1 158 By notice of motion dated August 9,201 1, plaintiff moves pursuant to CPLR 2221 for an order granting her reconsideration of a prior application for discovery, which resulted in an order dated July 28,201 1. Defendants oppose. In this action, plaintiff sues defendants for their alleged employment discrimination and retaliation against her, based on her allegations that McCoy, her former supervisor, disciplined her differently than he disciplined Goyette and Bellantoni, her former co-workers, and that she was terminated after complaining about the disparate treatment and other matters. Specifically, plaintiff contends that Goyette and Bellantoni lived in Connecticut in violation of defendant Department of Environmental Protection's (DEP) employee residence rules and that McCoy [* 3] failed to address the issue, although he allegedly referred plaintiffs complaint about it to the Department of Investigation (DOI). By letter application dated January 10,20 1 1, plaintiff sought an order requiring defendants to provide any documents relating to DOI s investigation, and by decision and order dated July 28,20 11, I denied the request, finding that plaintiff and Goyette and Bellantoni were not similarly situated as required for her claim of disparate treatment, as she was a probationary employee and Industrial Hygienist while they were neither probationary employees, nor Industrial Hygienists, and as she was terminated for improperly using a DEP vehicle for her personal use, while she had accused Goyette and Bellantoni of violating City residency rules, and that the records sought were thus not likely to lead to relevant evidence. Plaintiff now argues that I overlooked the fact that defendants raised the DO1 investigation as a defense to her claim, that Goyette and Bellantoni s non-compliance with the residency rules is relevant to her claim of disparate treatment as she raised the issue in her complaints, and that they were similarly situated as they were all subject to the same residency rules and McCoy was their supervisor and responsible for disciplining them. (Affirmation bf Shelley-Ann Quilty, Esq., dated Aug. 9,201 1). Defendants deny that I overlooked any matter of fact or law raised by plaintiff on her letter application or that plaintiff and Goyette and Bellantoni were similarly situated. (Affirmation of Daniel Chiu, ACC, dated Sept. 23,201 1). In reply, plaintiff reiterates her prior arguments. (Reply Affirmation, dated Sept. 29, 201 1). A motion for leave to reargue shall be based upon matters of fact or law allegedly 2 [* 4] overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. (CPLR 2221 [d][2]). Whether to grant re- argument is committed to the sound discretion of the court, and a motion to re-argue may not serve as a vehicle to permit the unsuccesshl party to argue once again the very questions previously decided. (Foley v Roche, 68 AD2d 558, 567-568 [lut Dept 19791, Zv denied 56 NY2d 507 [1982]). In the July 201 1 order, I addressed plaintiff s argument that she and Goyette and Bellantoni were similarly situated, and, in any event, she submits no authority warranting a different result. Moreover, the Second Circuit has held that a probationary employee is not similarly situated to a non-probationary employee (Desir v City ofNew York, 2011 WL 5 176178 [2011] [as other employees were tenured while plaintiff was probationary, they were not subject to same performance evaluation and discipline standards and thus not similarly-situated]), and it is undisputed that she and Goyette and Bellantoni had different job titles and responsibilities (see Jones v Yonkers Pub. Schools, 326 F Supp 2d 536 [SD NY 20041 [ a probationary civil service employee generally is not situated similarly to a non-probationary employee as a matter of law; responsibilities and seniority of employees relevant to whether they are similarly-situated]). Plaintiff also fails to explain how the records of the DO1 investigation bear on her claims against defendants, as she knows the result of the investigation and does not state how the facts uncovered during it relate to whether defendants discriminated or retaliated against her. (See eg Fitzgerald v City ofTroy, 201 1 WL 6030868 [ND NY 201 1J [finding that as plaintiff already knew details of investigation, request for statements contained in investigative file not calculated to lead to admissible evidence of disparate treatment but to impeachment material]). 3 [* 5] Moreover, plaintiffs assertion that defendants rely on the facts underlying the investigation is supported by no evidence. However, should defendants subsequently seek to introduce any evidence relating to the facts of the investigation, plaintiff may move for leave to renew her application. (Compare McGrath v Nassau County Health Cure Corp.,204 FRD 240 [ED NY 20011 [defendant ordered to produce documents relating to internal investigation of plaintiffs complaint as it put sufficiency of investigation at issue in its defense]). Accordingly, it is hereby ORDERED, that plaintiffs motion for leave to reargue is denied. ENTER: DATED: Jmu?7 New ork,New York 30, 2012 4

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