Liguori v Brown Harris Stevens Residential Mgt. LLC.

[*1] Liguori v Brown Harris Stevens Residential Mgt. LLC 2006 NY Slip Op 51913(U) [13 Misc 3d 1219(A)] Decided on September 29, 2006 Supreme Court, Bronx County Guzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2006; it will not be published in the printed Official Reports.

Decided on September 29, 2006
Supreme Court, Bronx County

Kecia Liguori, Plaintiff,

against

Brown Harris Stevens Residential Management LLC., and Doe Corp 1-5, Defendants.



20138/2004

Wilma Guzman, J.

Defendant Brown Harris Stevens Residential Management LLC (hereinafter referred to as Brown Harris) motion for summary judgment to dismiss plaintiff's complaint for discrimination based on her claims of disability in violation of the New York City Human Rights Laws (Administrative Code of City of NY § 8-107) is denied.Plaintiff alleges that she was hired by the defendant Brown Harris on or about January 28, 2002 to manage mostly residential properties together with some commercial properties; however, on March of 2003, she took a medical leave of absence in order to have a surgical procedure. When she began an authorized medical leave of absence in March 14, 2003 with an anticipated return date of April 14, 2003 but before completion of her medical leave of absence, plaintiff alleged that she was fired by the defendant on April 4, 2003 because of her disability. According to the plaintiff, she was initially hired by the defendant to replace an accounts receivable clerk [FN1] who worked on residential properties (plaintiff's affidavit ¶8). Plaintiff admits that although defendant did inform her during the initial interview that the defendant was " thinking' about acquiring commercial properties to manage . . . there was nothing definite . . . . and . . . my primary function would be to replace Ada Dee and work on residential properties"(plaintiff's affidavit ¶9). Plaintiff points to the Human Resources/ Payroll Action Approval notice [*2]which indicates that plaintiff was the replacement of Ada Dee and that plaintiff's position was that of an account receivable/lease administrator (See Affidavit of Kecia Liguori, Exhibit C).

Plaintiff asserts that although she did manage commercial properties, these properties were "a small percentage" of her work (plaintiff's affidavit ¶2 pg 2). When the defendant learned that it will no longer manage these properties, plaintiff claims that she was given a raise and bonus as well as other duties so she can continue to have a "full work load"(plaintiff's affidavit ¶2 pg 2). However, after defendant learned that she was taking a medical leave to have fibrous tumors removed, she was fired and a temporary replacement was hired to fulfill her duties (plaintiff's affidavit ¶2 pg 2). This employee, Poitevien Archange, was hired as a "temp"to fulfill plaintiff's duties while she was out on medical leave (plaintiff's affidavit ¶39); however, after she was fired, Mr. Archange was employed full time and "took over my [plaintiff's] duties with regard to commercial and residential properties (plaintiff's affidavit ¶52). Plaintiff claims "the real reason I was fired was because I had to have surgery to remove fibrous tumors, just months after my mother had passed away from cancer"(plaintiff's affidavit ¶3).

However, plaintiff's version as to the reasons for which she was employed directly contradicts defendant's version. According to Alan Kersner, chief operating officer of Terra Holdings Llc [FN2]., he made the decision to hire the plaintiff in order to fill a new position at the company which was that of a lease administrator of certain commercial properties [FN3] which the defendant had just acquired to manage (Kersner's affidavit ¶3). Kersner affirms that plaintiff did some work regarding residential properties but it "only occupied 10 to 15 percent of the Ms. Liguori's work time"(Kersner's affidavit ¶4). Nevertheless, on or about February of 2003, the defendant was notified by JEMB Realty Corp., that it was dissatisfied with the management of its commercial properties and as a result was transferring the commercial properties to a different management company. According to Kersner, he ended plaintiff's employment as her position of a lease administrator was no longer necessary due to the loss of the commercial properties (Kersner's affidavit ¶6) He states that even though he was aware that plaintiff was taken medical leave, his reason for terminating her employment was due to business loss. He further states " I certainly did not have any reason to believe that she was suffering from cancer, and, even if I had been so aware, it would not have affected my decision . . . , just as it did not affect the decision with respect to employment of the 20 or so other persons who took medical leave over the years." (Kersner's affidavit ¶7) Defendant points to the spreadsheet prepared by Judith Caplan which shows how many of the defendant's [*3]employees were on medical leave of absence and their employment status on the company. Although defendant admits that it hired Mr. Archange initially as a "temp" and then as a permanent employee, his duties were that of a bank messenger, file clerk and trainee of accounts receivable clerk as well as "certain ministerial/clerical duties regarding the JEMB Realty properties during the period they remained at Brown Harris Stevens client . . . "(Kersner's affidavit ¶8 fn.) Defendant now moves for summary judgment claiming that plaintiff's termination from her employment did not violate the New York City Human Rights Laws (Administrative Code of City of NY § 8-107) as her termination was not as a result of her alleged disability but instead loss of business. In support of the motion, defendant submits a copy of the summons and complaint, the affidavit of Alan Kersner, e-mails dated February 3 and April 7 of 2003 from Richard Chin from JEMB Realty Corp., the affidavit of Judith Caplan together with a spreadsheet that she prepared of defendant's employees status after taking a medical leave of absence.

This Court notes in the first instance that although defendant has annexed a copy of the summons and complaint, it has failed to annex a copy of its answer to the instant motion. Pursuant to CPLR 3212[b] "a motion for summary judgment shall be supported (inter alia) by . . . a copy of the pleadings." Defendant's failure to support the motion with copies of all of the pleadings as required by [the] statute requires the motion's summary dismissal since it was facially insufficient as a matter of law ( e.g., Welton v. Drobnicki, 298 AD2d 757 [Because plaintiffs did not include a copy of the answer with their moving papers, they failed to satisfy their initial burden on the motion . . . ."]; see also DiSano v. KBH Constr. Co., 280 AD2d 951, 952 [2001]; Lawlor v. County of Nassau, 166 AD2d 692), regardless of the merits" (Nationwide Mut. Ins. Co. v. Piper, 286 AD2d 903, 904). Thus, although defendant's motion for summary judgment is denied for failure to annex a copy of the pleadings, this Court will nevertheless examine the merits of defendant's motion for summary judgment.

The New York City Human Rights Law (N.Y.C. Administrative Code Title 8)§ 8-107(1)(a) prohibits discrimination based upon a perceived disability in the work place.

To state a prima facie case of employment discrimination due to a disability under the New York City Administrative Code, a plaintiff must show that (1) that he or she suffered from a disability; (2) that the plaintiff is otherwise qualified to perform the essential functions of the job; and (3) that the plaintiff suffered the alleged adverse employment actions because of the disability.( see, Matter of McEniry v. Landi, 84 NY2d 554, 558, 620 NYS2d 328). Applying these principles to the facts of this case, defendant's motion must be denied. Plaintiff established a prima facie case that she was terminated by defendant because she was perceived to be disabled by showing that perceived disability is a protected class under the New York City Human Rights Law; that defendant perceived her as having a disability; that she was qualified for her position; that she was terminated by defendant; and, that the circumstances of her discharge gave rise to an inference of discrimination. Indeed, defendant does not contest that plaintiff made out a [*4]prima facie case. Instead, defendant contends that it articulated a legitimate, nondiscriminatory reasons for terminating plaintiff, namely, that the termination was due to loss of business.

Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate "that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason" ( Matter of McEniry v. Landi, supra ). If the employer establishes that it had valid, nondiscriminatory reasons for discharging the plaintiff from employment, the burden shifts back to the plaintiff to raise a triable issue of fact as to whether the stated reasons for discharge were pre textual ( see Cooks v. New York City Tr. Auth., 289 AD2d 278, 279, 734 NYS2d 207). Here the defendant established its prima facie entitlement to judgment as a matter of law on the plaintiff's employment discrimination claim by proffering sufficient evidence that the plaintiff's employment was terminated for legitimate reasons unrelated to his alleged disability (see Clemens v. MTA NY City Tr. Auth., 19 AD3d 636, 798 NYS2d 115; Blum v. New York Stock Exch., 298 AD2d 343, 344, 751 NYS2d 202). In opposition, the plaintiff raised a triable issue of fact as to whether the reasons stated for her discharge were pretextual (see, Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595).

As evidenced by the competing affidavits of both the plaintiff and Mr. Kersner, and given the different versions of the events, there remain questions of fact precluding the granting of summary judgment. "When a key issue turns on the credibility of opposing affiants, summary judgment should be denied. See Siegel, NY Practice, § 278 (3d Ed.1999). Accordingly, viewing the evidence in the light most favorable to the plaintiff, (Siegel, NY Practice, § 278, p. 438; and § 281, p. 442 [3d Ed.1999]; Morris v. Lenox Hill Hospital 232 AD2d 184, 647 NYS2d 753, aff'd 90 NY2d 953; Metcafe Cleaning Inc. v.Chemical Bank 216 AD2d 231, 628 NYS2d 700) this Court concludes that material issues of fact exist, particularly as to whether plaintiff was hired primarily to work on the commercial properties recently acquired by the defendant; whether her work involving residential properties was minimal as claimed by the defendant; whether the employee named Mr. Archange was hired to replace the plaintiff and whether said employee continued to perform plaintiff's duties thereby confirming plaintiff's position that she was fired as soon as Mr. Kersner learned that plaintiff was taking a medical leave of absence in order to have a surgical procedure. Thus, based on the foregoing, defendant's motion for summary judgment is denied. This constitutes the decision and order of the Court.

Dated: Bronx, New York________________________

Hon. Wilma Guzman

Justice, Supreme Court [*5] Footnotes

Footnote 1:The clerk's name is Ada Dee.

Footnote 2:Terra Holdings Llc., is the parent company of defendant Brown Harris.

Footnote 3:JEMB Realty Corp., hired the defendant at the end of 2001 or in early 2002 to manage certain commercial properties.