Green v Canarsie A.W.A.R.E., INC.

[*1] Green v Canarsie A.W.A.R.E., INC. 2012 NY Slip Op 50702(U) Decided on April 10, 2012 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2012
Supreme Court, Kings County

Kimberly Green, Plaintiff,

against

Canarsie A.W.A.R.E., INC., and Yanira Peralta, Individually, Defendant.



30832/10



Plaintiffs Attorney:Scott Kreppein

Reynolds, Caronia, Gianelli et al.

Defendants Attorney:William K. Phillips

Phillips & Phillips

Yvonne Lewis, J.

Kimberly Green filed this action against the Defendant, Canarsie, A.W.A.R.E., INC. ("Canarsie") for alleged acts of discrimination and harassment on the basis of her race and gender and her retaliatory termination by defendants for her refusal to participate in sexually and racially explicit conversations. Canarsie moves to dismiss the complaint pursuant to CPLR§ 32 11(a)(7) for failure to state a cause of action and CPLR§ 3211(a)(1) based upon a defense founded upon documentary evidence. Canarsie asserts that the language used and the use of the word nigger by minority employees during the one month that Ms. Green was employed does not give rise to an inference of racial or sexual animus. Canarsie argues that Ms. Green failed to plead that any discriminatory conduct was alleged toward her, and failed to allege how any of the actions of the defendants support a claim for hostile work environment. Additionally, the defendants argue that the work conditions, and allegations do not satisfy the adverse employment action requirement because the alleged acts of discriminatory intimidation, ridicule, and insult must be severe or pervasive enough to alter the conditions of the plaintiff's employment, thereby creating a hostile environment. The events, according to the defendants, happened over a two day period and were offensive but not discriminatory. They assert that Ms. Green was not terminated from her job, but that she quit after she received an unsatisfactory evaluation. And, Canarsie alleges that the plaintiff never complained of the alleged discriminatory acts to anyone in management or supervisory authority. It avers that the conduct of a "supervisor without the knowledge or acquiescence of the employer does not constitute unlawful discriminatory practice," citing , Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 786 N.Y.S2D 382 {2004] as its authority.

The plaintiff's complaint alleges that Canarsie violated the laws of the State of New York (Executive Law § 296 and the Administrative Code of the City of New York § 8-107); that she was subject to numerous acts of discrimination and sexual harassment which created a hostile and intimidating work environment. Ms. Green alleges that on a regular basis in the month that she was employed Yanira Peralta, who was one of her supervisors, would use vulgar and derogatory language such as "fuck", "mother fucker", "bitch,""dick" and pussy. She contends that supervisor constantly [*2]used the word, "nigger," including but not limited to "you're my nigger," "nigger please," and "that nigger"; Ms. Peralta would regularly pull up pornography on her cell phone and show pornography to clients and co-workers. According to Ms. Green, on October 14, 2010, Ms. Peralta showed a client and co-workers, a video of a woman with a penis stuck to her forehead, and stated, "that bitch had a dick stuck to her forehead, that shit is funny;" on another occasion Ms. Peralta, discussed a video of a woman's vagina being penetrated by a bottle with co-workers. Ms. Green stated that she heard her other supervisor, Joel Cummings, telling a co-worker that he could turn one of the employees gay by having oral sex. On yet another occasion, Ms. Green alleges that Joel Cummings said to her that "he had a friend who has a really big dick and flashes people." On October 16, 2010, Ms. Peralta was heard to say, "I want that dumb bitch fired."

Ms. Green avers that her refusal to participate in the racially and sexually explicit conversations resulted in termination of her employment on November 1, 2010. She asserts that contrary to the defendants assertion, she does allege facts to state a cause of action and sufficient facts to support the allegations. Ms Green articulates that from the beginning of her employment until her termination, she was subjected to numerous acts of discrimination and sexual harassment from her supervisors, and thus, forced into a hostile work environment.She contends that although her complaint may not be properly or artfully worded, the complaint is sufficient to give the defendants notice of the claim; in other words, the employer knew of the offending employees' unlawful discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action, or the employer should have known of the offending employees unlawful discriminatory conduct and failed to exercise reasonable diligence to correct the offense. Canarsie replies that even though the plaintiff may have been personally offended by the remarks she overheard in the work place, neither the complaint nor the plaintiff's affidavit allege any "gender or racial animus, hostility or bias" in the office work environment. Canarsie contends that the remarks made, if in fact they were made, over the period of one month and that the remarks not "severe and pervasive" as defined by the New York State Human Rights Law and would be considered trivial inconveniences and petty offenses under the New York City Administrative Code.

Dismissal of a case, pursuant to CPLR § 3211(a)1, grounded in a defense based upon documentary evidence, requires that the documentary evidence offered by the movant " be such that it resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claims." (Ruffino v. New York City Transit Authority 55 AD3d 817, 865 N.Y.S.2d 667 [2 Dept. 2008]). "As Professor Siegel has noted in his commentary to CPLR 3211, there is "a paucity of case law" as to what is considered " documentary' under [CPLR 3211 (a) (1)]" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case (id.; see 2 Commercial Litigation in New York State Courts § 7:60 [3 West's NY Prac Series 2d ed]). For example, in Matter of Casamassima v Casamassima (30 AD3d 596 [2006]), this Court held that a trust agreement qualified as "documentary evidence" in a dispute between cotrustees." (Fontanetta v John Doe 1, 73 AD3d 78, 898 N.Y.S.2d 569 [2d Dept. 2010]).

The affidavit of Joel Cummings, given in support of defendant's motion, is not documentary evidence. The mere fact that the affidavit disputes the fact that Ms. Green was discriminated against and quit after only one month of employment because of a negative performance review and never raised any complaints is not sufficient to resolve all issues of fact to dispose of the plaintiff's claim. The standard for a document to be considered documentary' is that it must consist of "a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based." (See, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 22). The affidavit of Joel Cummings cannot meet the essentially undeniable' test because an affidavit can easily be challenged by an opposing affidavit , which in fact was done in the case at bar. In her opposition, the plaintiff filed the affidavit of Ms. Green dated May 11, 2011, which basically [*3]contradicts and challenges that of Mr. Cummings. As the court in Fontanetta, supra pointed out, affidavits and depositions, though staples of most CPLR 3211(a) motions, are not considered "documentary" under CPLR 3211(a)(1), even though they and other paper proof are often referred to as "documentary" in other contexts.

Upon a motion to dismiss a complaint, a plaintiff must be given the benefit of every possible favorable inference (see Rovello v. Orofino Realty Co., 40 NY2d 633, 634) and the complaint should not be dismissed if "upon examination of the four corners of the pleading *** the factual allegations contained therein indicate the existence of a cause of action" (Melito v. Interboro-Mutual Ind. Ins. Co., 73 AD2d 819, 820; see, also, Guggenheimer v. Ginzburg, 43 NY2d 268, 275; Reifenstein v. Allstate Ins. Co., 92 AD2d 715. Fleming v. Allstate Ins. Co. 106 AD2d 426, 482 N.Y.S.2d 519, (2d Dept. 1984) affirmed 66 NY 2d838, 498 N.Y.S.2d 365, 489 N.E.2d 252, certiorari denied 106 S. Ct. 1493). The court notes also that "when considering a motion to dismiss for failure to state a claim, it also "may consider evidence outside the allegations in the complaint, but only to support and expand on the complaint and to determine whether plaintiff raises any material issue of fact to sustain a cause of action, however inartfully pleaded."

(Monogram Credit Card Bank of Georgia v. Mata, 895 Misc 2d 96, 57 NYS 2d 676. 2001, (internal citations omitted)).

This motion to dismiss the complaint for failure to state a cause of action is premature under CPLR § 3211 (7). The plaintiff asserts that she was discriminated against based upon race and sexual harassment and the circumstances were such that it created a hostile work environment. The allegations that a supervisor on several occasions within a one month period, subjected the plaintiff to the conduct alleged in the complaint imposes liability, if true, on the employer under the New York City Human Rights Law and the small size of the office, raises the issue of whether a supervisor knew or should have known of the unlawful discriminatory acts and should have done something about it. The issues of fact are numerous: was there vulgar and derogatory language and pornography in the presence of the plaintiff; was Ms. Green in a hostile environment and unable to avoid the remarks, or were such remarks directed toward her and were said remarks and photos present on numerous occasions rather than on just one or two in less than a one month period; were the complained of actions, severe or pervasive or just petty offenses? In addition, there is a material issue with respect to whether she was terminated because of her refusal to blend in, to accept and be apart of the environment that existed on the job or whether she quit or was terminated because of an unsatisfactory work performance.Canarsie must move forward and answer the complaint if it has not done so and continue with discovery. Canarsie may file another motion to dismiss, via a summary judgment motion. This constitutes the decision and order of the court.

E N T E R

____________________________

yvonne lewis, J.S.C.