Pacheco v Tryax Realty Mgt., Inc.

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Pacheco v Tryax Realty Mgt., Inc. 2014 NY Slip Op 31684(U) May 22, 2014 Sup Ct, Bronx County Docket Number: 300341/11 Judge: Jr., Kenneth L. Thompson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jun 05 2 14 Bronx County Clerk UPREME OURT OF THE STATE OF NEW YORK OUNTY 0 BRONX IA 20 Index No. 300341/11 Plaintiff, DECISION/ORDER againstRYAX REA TY MANAGEMENT, INC., MICHAEL EON, indivi ual, MICHAEL SCHMELZER, individual, ATTHEW CHMELZER, individual, ALEX UERRERO individual, Present: HON. KENNETH L. THOMPSON, Jr. Defendants. APERS NUMBERED _ _ _ I _ __ - - -2- - - - - -3- - - - Defe dants move pursuant to CPLR 3212 for summary judgment dismissing the omplaint. laintiffwas a live-in superintendent in a building owned by defendant, Tryax Realty anagemen , Inc., (Tryax). Tryax was owned by defendants, Michael Schmelzer and Matthew chmelzer. laintiffs former direct supervisors were defendants, Michael Leon, (Leon), and lex Guerre o, (Guerrero). After plaintiff has withdrawn other causes of action, his remaining auses of ac ion are for failure to accommodate his disability and retaliation, therefore violating t e New Yo k City Human Rights Law, (NYCHRL). Specifically, plaintiff alleges that he was account of the time he needed be away from his job on account of this treatment r cancer. The YCHRL provides in relevant part that, It sh 11 be an unlawful discriminatory practice:(a) For an employer or employee or agen thereof ... because of disability ... to discharge from employment such pers nor to discriminate against such person in compensation or in terms, cond tions or privileges of employment. [* 2] FILED Jun 05 2 14 Bronx County Clerk Adm nistrative Code §8-107(a)(l) Plain iffs discharge letter dated August 9, 2010, signed by Michael Schmelzer, chmelzer) references two warning letters dated May 7, 2010 and June 10, 2010, that plaintiff llegedly re eived. The Schmelzer termination letter states that plaintiff had told his supervisor t at he woul be absent from the building July 19 through July 26, 2010, (one week). However, i is undispu ed that plaintiff took a two week leave from his work. Defendants argue that it ischarged p aintiff essentially on account of alleged unauthorized absences from work. "It is not uncommon for covered entities to have multiple or mixed motives for their ction, and t e City HRL proscribes such "partial" discrimination since "[u]nder Administrative ode § 8-10 , discrimination shall play no role in decisions relating to employment, housing or odations" (see Williams, 61 AD3d at 78 n 27; see also Rep of Comm on Gen elfare, Lo al Law No. 85 [2005] of City of New York, 2005 NY City Legis Ann, at 537; Weiss JP Morga Chase & Co., 2010 WL 114248, 2010 US Dist LEXIS 2505, [SD NY 2010] [the ity HRL "r quires only that a plaintiff prove that age [disability herein], was 'a motivating adverse employment action"])." (Ben ett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 40 [Pt Dept 2011]). Plai iff avers that "Michael Schmelzer threatened me that he would terminate me if I e off from work and that I would lose my apartment as well." He further avers that elzer told him "that ifl kept taking off sick from work I wouldn't have a job." laintiff ave s that both of his supervisors, Guerrero and Matthew Schmelzer "would make omments t me repeatedly during the time that I was being treated like 'If you're sick, why are ou here?' hey told me that I didn't belong at work ifl had an illness." Plaintiff further avers e received ermission from Guerrero to take two weeks leave beginning on July 19, 2010 to rest 2 [* 3] FILED Jun 05 2 14 Bronx County Clerk om treatm nt with two different types of chemotherapy. Plaintiff also avers that he sought a s cond opini n in the Dominican Republic. Plaintiff avers that Guerrero told him Adan Battista, ( attista), w uld cover for him for the two weeks. Plaintiffs averment regarding his uthorizatio to have two weeks leave is corroborated by the sworn statement of Battista. While efendants c rrectly assert that plaintiff cannot produce a leave form for the two week period laintiff was absent from work, plaintiff avers he was not offered a leave form, but was given ral authoriz tion to leave work. On a summary judgment motion the "court should draw all r asonable i ferences in favor of the non-moving party and should not pass on issues of redibility." (Dauman Displays Inc. v. Masturzo, 168 AD2d 204 [1st Dept. 1990]). ere a defendant on a summary judgment motion has produced evidence that stifies its verse action against the plaintiff on nondiscriminatory grounds, the plaintiff may ot stand sil nt. The plaintiff must either counter the defendant's evidence by producing pretext vidence (or otherwise), or show that, regardless of any legitimate motivations the defendant , the defendant was motivated at least in part by discrimination." Id. at 39. In the laintiff has not stood silent, but rather has directly submitted evidence that the r ason offer d by defendants for plaintiffs discharge was pretextual. With respect to the i dividual d fondants, "[t]he local ordinance (NYCHRL), thus includes fellow employees under t e tent of li bility, but only where they act with or on behalf of the employer in hiring, firing, aying, or i administering the "terms, conditions or privileges of employment" --in other words, i some age cy or supervisory capacity." (Priore v New York Yankees, 307 A.D.2d 67, 74 Plai iffs attorney argues that Leon "participated in the decision to discharge the laintiff fro employment." While the plaintiffs reference to page 124 of the transcript of 3 [* 4] FILED Jun 05 2 14 Bronx County Clerk Michael Sc elzer is inaccurate, the transcript is rife with references to the involvement of the agers, Leon and Guerrero with the issue of plaintiff's unauthorized leave. Michael Schmelzer estified that he did not speak with plaintiff directly about the subject matter herein, ut it is cle that Leon and Guerrero, as field managers, were closely involved in plaintiff's ermination (Michael Schmelzer transcript pp. 88-90; 148-157). Michael Schmelzer was very nvolved in he termination process and decision. Michael Schmelzer himself signed the ermination letter. However, there is no proffered evidence of any involvement of Matthew chmelzer i plaintiff's termination. Ace rdingly, defendants' motion is granted to the limited extent that the complaint is ismissed a against Matthew Schmelzer only. Defendants' motion is otherwise denied. The foregoing constitutes the decision and order of the Court. J.S.C. N JR. KENNETH L THOMPSO ¢ 4

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