Perez v City of New York

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Perez v City of New York 2012 NY Slip Op 31838(U) July 5, 2012 Supreme Court, New York County Docket Number: 111768/11 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 711312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Justice . - Index Number : 1I 1 7681201 I PEREZ, IRMA VS - INDEX NO. MOTION DATE CITY OF NEW YORK SEQUENCE NUMBER : 001 DISMISS &L :l ? MOTION SEQ. NO. p The following papem, numbered 1 to Notlce of Mofonlorder to Show Cauae Anrwerlng Affldavh L? , were read on thl8 motion toffor * INo(r). I ; ! 3 INO(d. Y -Affldavlk - Exhibits - Exhlbltm I NO(@). Replying Affldavlts Upon the foregolng papers, It Is ordered that thls motlon I s Datod: [rj 7 'JUL 0 J.S.C. 2012 ..................................................................... CHECK AS APPROPRIATE: ........................... MOTION IS: 1. CHECK ONE: CASE DISPOSED 2. GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0DENIED c GRANTED IN PART ] SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. 11176811 1 Plaintiff, Motion arg.: Motion seq. no.: 4/3/12 00 1 -against- DECISION & ORDER THE CITY OF NEW YORK, YORK COUNTY CLEWS OFFICE For plaintiff: Stewart Lee Karlin, Esq. 9 Murray St., Ste. 4W New York,NY 10007 2 12-792-9670 For Clty: James L. Hallman, ACC Michael A. Cardozo Corporation Counsel 100 Church St., Rm.2-108 New York, NY 10007 212-788-0960 By notice of motion dated December 13,2011, defendant City moves pursuant to CPLR 321 1(a)(7) for an order dismissing &e complaint. Plaintiff opposes and, by notice of cross motion, moves for an order granting her leave to amend the complaint. L PLEAaINGS In her complaint, plaintiff alleges, as pertinent here, that since 2000 she has been employed by the New York City Police Department as a police officer, that on July 25,201 1, her request for overtime was denied, she w s disciplined instead, discriminated against based on her a gender, and w s then assigned to the "graveyard shift," and that City has taken adverse a employment actions against her and subjected her to disparate treatment based on her gender. (Affirmation of James L. Hallman, ACC, dated Dec. 13,201 1, Exh. A). In her proposed amended complaint, plaintiff adds that other similarly-situated male [* 3] police officers have had their overtime approved and not been disciplined, and also alleges that since commencing the action, she has been retaliated against wt disciplinary actions for ih conduct engaged in by male offcers who have not been so disciplined. (Affirmation of Stewart Karlin, Esq., dated Feb. 29,2012, Exh. A). A, Motion, to m e n d Pursuant to CPLR 3025(b), a party may amend its pleading at any time by leave of the court, and leave shall be freely given upon such terms as may be just. It is within the court s discretion whether a party may amend its complaint. (Murray v Ciw ofNew York, 43 NY2d 400, 404-405 [1977], rearg dismissed 45 NY2d 966 [1978]; Lanpont v Sawas Cab Corp., Inc., 244 AD2d 208,209 [ 1st Dept 19971). The factors to be considered are whether the proposed amendment would surprise or prejudice the opposing party (Murray, 43 NY2d at 405; Lanpont, 244 AD2d at 209,211; Nomoodv Ciw ofNew York, 203 AD2d 147,148 [I Dept b 19941, lv dismissed 84 NY2d 849), and whether the amendment has merit (Thomas Crimmins Con@.Co., v City ofNew York,74 NY2d 166, 170 [1989]). Where a proposed defense lnc. plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore properly denied (Id. at 1701; 360 J ] I t h LLC v ACG Credit Co.Il, LLC, 90 AD3d 552 [ lstDept 201 13; Ancrurn v St. K Barnabus Hosp., 01 AD2d 474,475 [lnt Dept 20031). Here, as plaintiff seeks to cure deficiencies cited by City in her first complaint, and as she also seeks to add a retaliation claim related to events that occurred after she commenced the action, the amendment appears meritorious and would not prejudice City. (See Janssen v h c . Vil. 2 [* 4] o Rockville Centre, 59 AD3d 15 [2d Dept 20081 blaintiff properly granted leave to amend f complaint as proposed amendment sought to cure deficiencies in original complaint which led to dismissal of complaint]). J3. Motion to dismiss 1, 1 icable law Pursuant to CPLR 32 11(a)(7), a party may move at any time for an order dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83,87 [ 19941; Thomas v Thomas, 70 AD3d 588 [la Dept 20101). The court need only determine whether the alleged facts fit within any cognizable legal theory. (Zd). Moreover, complaints in employment discrimination cases are held to lesser pleading standards. (Vig v New York Hairspray Co., LP,67 AD3d 140 [ 1st Dept 20091, lv denied -NY3d \ - 2012 NY Slip Op 77207[U] [employment discrimination claims reviewed under notice , pleading standards and need not plead specific facts establishing prima facie claim]). 2D 1 - . . .nation &QJ . Pursuant to Executive Law $296(1)(a), it is unlawful [flor an employer. . . ,because of an individual s age . . . ,to refuse to hire or employ or to bar or discharge Gom employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment. In order to establish a prima facie discrimination claim, the plaintiff must demonstrate: (1) that she is a member of a protected class; (2) that she was qualified to hold her position; (3) that she suffered an adverse employment action; and (4) that the adverse 3 [* 5] employment action occurred under circumstances giving rise to an inference of discrimination. (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of the AFL-CIO, 6 NY3d 265,271 [2006]; Ferrante v Am. Lung. Assn., 90 NY2d 623 [ 19971; Mete v A? Y State Ofice of Mental Retardation & Dev.Disabilities, 21 AD3d 288 [lH Dept 20051). Here, as plaintiff has alleged that she w s not granted overtime and was instead a disciplined while similarly-situated male police officers were treated differently, she has sufficiently stated a claim for gender discrimination. (Compare Eric H Green & Assocs. v Jennings ToEbert, 306 AD2d 3 [lBt 20031 [finding of discrimination supported by evidence Dept that complainant s request for leave was denied while her male counterparts were permitted to take leave], with Tucker v Battery Park City Parks Corp., 227 AD2d 318 [1jt Dept 19961 [discrimination claim dismissed -its plaintiff failed to allege disparate treatment of similaflysituated employees]). 3, Retaliation a \ Pursuant to Executive Law § 296(7), an employer may not retaliate or discrimhate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified, or assisted in any proceeding under this article, To establish aprima facie retaliation claim, the plaintiff must show: (1) that she engaged in a protected activity; (2) that the employer w s aware of the protected activity; (3) that a the employer took an adverse employment action against her; and (4) that her protected activity and the adverse employment action were causally related. (Forrest v Jewish Guildfor the Blind, 3 NY3d 295 [2004]). Plaintiff alleges that since commencing the action, she has been disciplined for certain 4 [* 6] actions while her male counterparts have not been disciplined for the same actions. She has thus sufficiently stated a claim for retaliation. (See Brightman v Prison Health Svces., Inc.,62 AD3d 472 [ 1 Dept 20091 [plaintiff stated retaliation claim by alleging, among others, that defendants gave her more onerous workload than her similarly-situated colleagues]). CONCLU$KW Accordingly, it is hereby ORDERED, that defendant City of New York s motion to dismiss is denied; it is further ORDERED, that plaintiffs cross motion for leave to amend her complaint is granted; and it is further ORDERED, that the amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upun all parties who have appeared i the action. n ENTER: DATED: July 5,2012 New York, New York ..- JUi D 5 z m 5

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