DeMarzo v Urban Dove, Inc.

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DeMarzo v Urban Dove, Inc. 2017 NY Slip Op 32612(U) November 21, 2017 Supreme Court, Kings County Docket Number: 500466/13 Judge: Larry D. Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. . [*FILED: KINGS COUNTY CLERK 12/18/2017 03:20 PM 1] INDEX NO. 500466/2013 ~ NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 12/18/2017 At an lAS Term, Part 41 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthous,e.:3t Civic Center, Brooklyn, New York, on the ~ day of November, 2017. PRESENT: - '\ '.'" --70 " HaN. LARRY D. MARTIN, .: - Justice. - - - - - - - - - - - - - - - - - -- - -'-- - - - - - - - - - - - - - -x JENINEM. DEMARZO, Plaintiff, DECISION AND ORDER Index No. 500466/13 - against- Mot. Seq. No. 9-10 THE URBANDOVE, INC., URBANDOVETEAMCHARTERSCHOOL, JAI NANDA,and MARIANNEROSSANT, Defendants. . - - - - - - - - - :.- - -'-- - - - - - - - - - - - - - - - - - - - - - -x The following e-filed papers read herein: NYSCEF Docket No. Notice of Motion, Affidavits (Affirmations), Memoranda of Law, and Exhibits Annexed, _ Affirmations (Affidavits) in Opposition and Exhibits Annexed __ ' Reply Affirmations _ 96-106,114-119, 121, 125:130, 131, 133 The plaintiff individual, Jenine M. DeMarzo commenced (hereafter, the plaintiff), an allegedly this action against her former employer, the defendant disabled Urban Dove Team Charter School (hereafter, the School); her alleged joint employer, The Urban Dove, Inc. (hereafter, (hereafter, Urban Dove); the Chairman of the Board of Directors of the School the Board), the defendant Jai Nanda (hereafter, Nanda); and the School Principal, the defendant Marianne Rossant (hereafter, Rossant); alleging that the defendants violated the New York State Human Rights Law (Executive Law art 15; hereafter, the State HRL) and the New York City Human Rights Law (Administrative et seq.; hereafter, the City HRL) by subjecting Code of City of New York her to a hostile work environment S 8-101, based on her disabilities (the first and second causes of action, respectively). the defendants retaliated' against her in violation of the State and City HRL by terminating her employment because of her prior written complaint 1 of 5 She further alleges that of <:lisability discrimination to the ~ [*FILED: KINGS COUNTY CLERK 12/18/2017 03:20 PM 2] .. ., NYSCEF DOC. NO. 135 INDEX NO. 500466/2013 RECEIVED NYSCEF: 12/18/2017 Board (hereafter, the discrimination complaint) (the third and fourth causes of action, respectively). She lastly alleges that, at an office meeting between her and the defendant Rossant, the latter falsely imprisoned her by blocking her exit from the office (the fifth cause of action). By stipulation, dated March 3, 2014, the plaintiff discontinued this action against the defendant Urban Dove (NYSCEF No. 23). Hereafter, the term "defendants" collectively refers to the School, Nanda, and Rossant. Before the Court are (1) the defendants' motion for summary judgment dismissing the amended complaint against them for failure to serve a notice of claim (Seq. No. 10), and (2) the plaintiff s motion for partial summary judgment on liability on her claim of retaliation under the City HRL against the School and Nanda (Seq. No.9). Defendants' Motion The defendants contend that the amended complaint should be dismissed as against them for failure to serve a notice of claim before the inception of this action. In response, the plaintiff concedes that she did not serve a notice of claim before the inception of this action and, moreover, that she does not oppose summary judgment in favor of the School on that ground (see Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, at 1 [NYSCEF No. 121]). Thus, the branch of the defendants' motion for summary judgment dismissing the amended complaint against the School for failure to serve a notice of claim is granted without opposition. This leaves for consideration whether all or a portion of the amended complaint should be dismissed against the remaining defendants Nanda and Rossant. The governing statute is Education Law 9 3813 (2), which provides, in relevant part, that: "[N]o action or special proceeding founded upon tort shall be prosecuted or maintained ... against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed by such teacher or member or employee acting in the discharge of his duties within the scope 2 2 of 5 .• [*~3] FILED: KINGS COUNTY CLERK 12/18/2017 03:20 PM NYSCEF DOC. NO. 135 INDEX NO. 500466/2013 RECEIVED NYSCEF: 12/18/2017 , of his employment and/or under the direction of the board of education, trustee or trustees, or governing body of the school unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law" (emphasis added). Whereas Education Law 9 3813 (2) dictates that no action "where the alleged tort" was committed by any teacher or member of administrative staff may be commenced "unless a notice of claim shall have been made and served," an action brought under the State or City HRL is not a "tort" claim within the meaning of the statute (see Lane-Weber v Plainedge Union Free School Dist., 213 AD2d 515, 516 [2d Dept 1995], lv dismissed 87 NY2d 968 [1996]; see also Thygesen v North Bailey Volunteer Fire Co., Inc., 106 AD3d 1458, 1460 [4th Dept 2013]; Doe v Belmare, 31 Misc 3d 904,908-909 Knipel J.] [collecting authorities D. [Sup Ct, Kings County 2011, Thus, the branch of the defendants' motion for summary judgment dismissing the amended complaint for failure to serve a notice of claim is denied as to the plaintiff's disability discrimination and retaliation clams against Nanda and Rossant (the first, second, third, and fourth causes of action). On the other hand, the plaintiff's claim of false imprisonment against Rossant is a"tort" claim within the meaning of Education Law 9 3813 (2) because the latter was allegedly acting within the scope of her employment, and in the performance of her work duties, for the School at the time of its alleged commission. Thus, the remaining branch of the defendants' motion for summary judgment dismissing the amended complaint for failure to serve a notice of claim is granted as to the plaintiff's false imprisonment claim against Rossant (the fifth cause of action). To summarize, this action is continued against Nanda and Rossant on the plaintiff's disability discrimination and retaliation clams against them (the first, second, third, and fourth causes of action). Plaintiffs Motion As noted, the plaintiff moves for partial summary judgment on liability on her claim of retaliation under the City HRL against the School and Nanda. In light ofthe dismissal of the amended complaint against the School for failure to serve a notice of claim, the branch 3 3 of 5 [*FILED: KINGS COUNTY CLERK 12/18/2017 03:20 PM 4] ,NYSCEF DOC. NO. 135 INDEX NO. 500466/2013 RECEIVED NYSCEF: 12/18/2017 of her motion for partial summary judgment on liability as against the School is denied as moot. This leaves for consideration the remaining branch of the plaintiffs motion for partial ~ummary judgment on liability on her claim of retaliation under the City HRL against Nanda. In support of her motion, the plaintiff contends that she was reprimanded one day after she complained about the disability discrimination, permitting an inference of a causal connection between her complaint and her subsequent discharge. Viewing the plaintiffs contention in the light most favorable to Nanda as the non-movant (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27NY3d 1048, 1049 [2016]), the facts are not so undisputed as to support it as.a matter oflaw .. Contrary to the plaintiffs position, the jury may reasonably find that (1) the basis for Nanda's reprimand of the plaintiff was nonpretextual, and (2) the acts and omissions referred to in the reprimand, rather than her discrimination complaint, were considered in determining whether to discharge her. Morever, the jury may reasonably find that Nanda's subsequent reprimand of the plaintiffa matter about which the plaintiffis entirely silent in her moving papers - was non-pretextual (see Letter, dated December 16, 2012 [NYSCEF No. 130]). The record further discloses a triable issue of fact as to whether the plaintiff was disabled. Accordingly, the remaining branch of the plaintiffs motion for partial summary judgment on liability on her claim of retaliation under the City HRL against Nanda is denied (see e.g. Macchio v Michaels Elect. Supply Corp., 149 AD3d 716, 720 [2d Dept 2017]; Teran v JetBlue Airways Corp., 132 AD3d 493,494 [1st Dept 2015]). Based on the foregoing and after oral argument, it is ORDE~D that the defendants' motion in Seq. No. 10 for summary judgment dismissing the amended complaint because of the plaintiffs failure to serve a notice of claim is granted to the ext~nt that (1) the amended complaint against the School is dismissed in its entirety, and (2) the fifth cause of action for false imprisonment against Rossant is dismissed; and the defendants' motion in Seq. No. 10 is otherwise denied; and it is further 4 . 4 of 5 5] FILED: I[*.•...• INDEX NO. 500466/2013 KINGS COUNTY CLERK 12/18/2017 03:20 PM NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 12/18/2017 ORDERED that the action is severed and continued against the remaining defendants Nanda and Rossant on the plaintiff s disability discrimination and retaliation claims (the first, second, third, and fourth causes of action); and it is further ORDERED that the branch ofthe plaintiffs motion in Seq. No.9 for partial summary judgment on liability on her claim of retaliation under the City HRL against the School is denied.as moot, as the action has been dismissed against the School; and it is further ORDERED that the remaining branch of the plaintiffs motion in Seq. No.9 for partial summary judgment on liability on her claim of retaliation under the City HRL against Nanda is denied; and it is further ORDERED'that to reflect the prior stipulated dismissal of the defendan~ Urban Dove and the dismissal of the School herein, the caption is amended to read in its entirety, as follows: - - - - - - - - - - - - - - - - _. ..- - - - - - - - -- - - - - - - - -x lENINE M. DEMARZO, Plaintiff, - against- Index No. 500466/13 lAI NANDA and MARIANNE ROSSANT, Defendants. -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X This constitutes the Decision and Order of the Court. ENTER, ~DV 2 1 LDll E~. ~r, HO~\Ii !\RRV Mt\iJ';Trw",1 ~I'\j JUSTiCE OF THE GUfR.a:H: COURT ~ !I.>;~ ~ . g \D. 5 5 of 5 ~ ~li' ••~. i '<.-d '"

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