Wixon v Broadway Regency Rest. LLC

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Wixon v Broadway Regency Rest. LLC 2013 NY Slip Op 30145(U) January 17, 2013 Sup Ct, New York County Docket Number: 111927/11 Judge: Debra A. James 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 112812013 [* 1] $UPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY L PRESENT: DEBRA A. JAMES PART 59 Justice Index No.: 111927/11 Motion Date: ROCHELLE WIXON, TERESA RIVERA, DRAGANA TATIC, CHARKARMALY SIDNEY, HODAN BULHAN, CHRISTINE ANDERSON, RAND1 MARTIRE, and NIDIA BRAVO, Plaintiffs, 05/11/12 Motion Seq. No.: 01 Motion Cal. No.: -vBROADWAY REGENCY RESTAURANT LLC, ROOFTOP LOUNGE LLC, ASCOT PROPERTIES, LLC, VIKRAM CHATWAL, VIVEK CHATWAL, RICHARD ADDISON, and JASON ASH, Defendants. The following papers, numbered 1 to PAPERS NUMBERED Notice of Motion/Order to Show Answering Affidavits - Exhibits ' Replying Affidavits - Exhibits _+' Cross-Motion: Upon the foregoing papers, Defendants move to dismiss portions of plaintiffs' complaint in this action alleging sexual harassment and discrimination in violation of the New Y o r k City Human Rights Law (Administrative Code of City of NY) 58-107 ("HRL"). Defendants' assert that the claims of plaintiffs' Charkarmaly Sidney a n d Randi Martire should be dismissed on the Check One: 0 FINAL DISPOSITION Check if appropriate: DO NOT POST 181 NON-FINAL DISPOSITION REFERENCE SETTLElSUBMlT ORDERIJUDG. [* 2] A grounds of statute of limitations and failure to state a cause of action. C P L R 3211 (a) ( 5 ) & ( 7 ) . Defendants argue that these p l a i n a i f f s fail to establish any acts of defendants occurred within the limitations period. Human Rights Law is g o v e r n e d by a three-year Statute of Limitations. Jones v State, 149 AD2d 4 7 0 , 471 (26 Dept 1989) This action was commenced on October 20, 2011. e With r e s p e c t to plaintiff Charkarmaly Sidney, the complaint a l l e g e s that s h e was employed until December 2008 and alleges discriminatory a c t s during November 2008. These allegations combined with the affidavit in opposition to the motion that states t h a t she received cash for shifts worked after September 2008, a r e sufficient, f o r purposes of CPLR 3211, t o s u r v i v e defendants statute of limitations challenge. As stated by the Court, The defendants contend that t h e cause of action based on [I discrimination must be dismissed as barred by the Statute of Limitations. However, the allegations in the complaint, if proven, would establish a continuous violation. Therefore, the cause of action to recover damages for [I discrimination should not be dismissed a s time-barred. Dve v Catholic Medical Center of Brooklyn and Oueens, Inc., 273 A D 2 d 193, 194 ( 2 d Dept 2000). Similarly, the affidavit of plaintiff Randi Martire in opposition to the motion s e t s forth that the general allegations in the cornplaint with respect to the harassment were individually suffered by h e r and that she as well -2- [* 3] * was paid on a cash basis by the defendants through November 2008. Therefore, based upon the current f a c t s asserted by plaintiffs Randi Martire's claims are not time-barred. Defendants also assert that the claims of plaintiffs Teresa Rivera, Dragana Tatic and Randi Martire f a i l to state any cause of action against the defendants (CPLR 3211 [a] [ 7 ] ) . The court shall deny this application. In analyzing plaintiffs' claims this court is directed that On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the facts alleged in the complaint must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference. * The plaintiff * * alleged, in h e r complaint, that her routinely, repeatedly, and over a significant period of time, directed sexually and racially offensive language at her. She asserted t h a t she repeatedly told them to r e f r a i n from such behavior, and complained to her supervisors about the behavior, but that the behavior continued, unaddressed and consciously ignored by [the employer's] * management. The plaintiff further alleged that the environment at h e r place of employment consequently became intolerable, and t h a t , as a r e s u l t , she felt constrained to leave h e r employment with [the employer]. Because the complaint expressly alleged that the challenged conduct occurred on more than a few isolated occasions, but instead pervaded the workplace, and that [the employer] acquiesced in or condoned the conduct, the complaint states a cause of action pursuant to Executive Law 5 296 (1) (a), based on sex and race harassment that creates a hostile work environment. coworkers, . . . , Mitchell. v TAM Equities, Inc., 27 AD3d 703, 704-706 (2d Dept 2006). This court is further directed that "the pertinent issue -3- [* 4] *d Brown v State, 125 A D 2 d 750, 751 been stated in the complaint. (3d Dept 1986). For HRL liability, therefore, the primary issue for a trier of fact in harassment c a s e s , as in o t h e r terms and conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender. At the summary judgment stage, judgment s h o u l d normally be denied to a defendant if t h e r e exist triable issues of fact as to whether such canduct occurred. Dept 2009). Unlike the standard that prevails under t h e federal and state anti-discrimination statutes, plaintiffs a r e not required to plead or prove under the HRL that t h e complained of acts were severe or pervasive. I . at 78-79; see Farruqia v d North Shore Universit-v H o s p . , 13 Misc3d 740, 748-749 (Sup Ct, NY County, 2006). Here, the common allegations in the complaint set forth that the plaintiffs collectively suffered the discriminatory acts complained of over a period of time and that they left their employment because of the conduct. At this stage of the litigation these allegations are sufficient to set forth a viable fact that certain of the individual plaintiffs also allege discriminatory acts unique to themselves. As to individual plaintiff Randi Martire, the court shall deny the motion as the allegations in the complaint as amplified by the affidavit in opposition to the motion set forth that she -4- [* 5] 7 . ' h e r s e l f specifically suffered the a c t s complained of individually. See Brown v State, 125 A D 2 d 750, 751 (3d Dept 1986) ("where the parties have submitted evidentiary material, i n c l u d i n g affidavits, the pertinent issue is whether claimant h a s a cause of action, not whether one has been stated in the complaint"). With respect to defendant Richard Addision, plaintiffs allege in paragraph 33 of t h e complaint that he along with defendant Jason Ash would initiate inappropriate contact with plaintiffs and s u c h a claim i s sufficient to survive CPLR 3211 dismissal. The c o u r t shall also d e n y defendants' application to dismiss t h e action against defendants Ascot Properties, Vikram Chatwal and Vivek Chatwal on the grounds that the allegations t h a t they are "employers" under the HRL are insufficient p l e a d . Plaintiffs argue that those defendants may be held liable under the "single employer" doctrine a n d this c o u r t finds t h a t f o r pleading purposes the plaintiffs' argument has merit. The Appellate Division has held that Patrowich v Chemical Bank (63 NY2d 541 [1984]) has been broadly read to adopt t h e '\economic reality" test for determining who may be sued as an "employer" under the Human Rights Law (Executive Law art. 15), although the cases do not invariably use the phrase "economic reality." T h i s test requires the plaintiff to p u t forth evidence that shows the corporate employee s u e d (i.e., the putative employer) has an ownership interest in the company or power to do more than carry out personnel decisions made by others. -5- [* 6] Kaiser v Raoul's Restaurant C o r D . , 72 AD3d 539, 540 (lstDept 2010) (citations and internal quotations omitted). In Kaiser, analogous to this case, the Court held that the two individual defendants, who were owners and officers of the co-defendant corporate restaurant t h a t employed the plaintiffs, could be h e l d liable for violations of the State Human Rights Law under the applicable standard. In their complaint, plaintiffs allege variously that they were employed at AVA Lounge, and that Ascot Properties LLC, Vikram Chatwal, Vivek Chatwal, Rooftop Lounge LLC and/or Broadway Regency Restaurant LLC a r e co-owners or have an ownership interest in AVA Lounge, which allegations are sufficient to meet their pleading b u r d e n for purposes of going forward. Accordingly, it is ORDERED that defendants' motion is DENIED; and it is further ' ORDERED that the parties are directed to attend a preliminary conference on February 5, 2013, at 9: Courthouse, Room 103, 71 Thomas Street, This is the decision and o r d e r of Dated: ENTEA Januarv 17, 2013 -6- \ \ \

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