Sassi v Mobile Life Support Servs., Inc.

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Sassi v Mobile Life Support Servs., Inc. 2016 NY Slip Op 33143(U) December 14, 2016 Supreme Court, Dutchess County Docket Number: 2016-51918 Judge: James V. Brands 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: 1] DUTCHESS COUNTY CLERK 12/15/2016 04:14 PM NYSCEF DOC. NO. 23 INDEX NO. 2016-51918 RECEIVED NYSCEF: 12/14/2016 EWYORK SUPREME YORK P .. M COURT- STATE 0OF NEW TY DUTCHESS COUNTY Present: Pr ent: Hon. JAMES V.BRANDS Ju tice. Justice. TY 0 SUPREME COURT: DUTCHESS COUNTY 0 R ' :D ______________________x X RICHARD J. SASSII III Ill, Plaintiff, Plaintiff A DORDER DECISIO ORDER I IO AND D o: 2016-51918 Indexx No: 2016-51918 Ind -against-t-again MOBILE PPORT SERVICES. INC.. IF SUPPORT OBILE LIFE Defendant. ______________________x _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x The following papers were defendant's motion dismisss pur pursuant The following pap rs w r read and cconsidered n id red on defendant motion to dismi uant to CPLR P R 93211 (a)(7). 321 l(a (7 . y NYSCEF E-FILED F E-F L -- D DOCS. NO.. 14-22 Background Facts: Background acts: Plaintiff need this action action all ging that d fondant violated violated Executive Plaintiff comm commenced alleging that th the defendant Executive Law Law 9296.15 and Corrections Law Article 23-A by willfully failing to rere-employ plaintiff after after hi his §296.15 orrections Law Arti I 23willfully failing mploy plaintiff criminal iction and 60-day 60-day incarceration. cording to the Verified criminal con conviction incarceration. According Verified Complaint, omplaint, plaintiff plaintiff appli mployment with with the ddefendant fendant onn orr about about June 2014 at which appliedd for employment June 2014 which tim time he claims have claims to have been facing faeing a mi misdemeanor relating to an alleged falsee 911 emergency call made made in August August demeanor charge charg relating alleged fal emergency call while worked aas a ppolice Plaintiff alleges alleges that hired as a pper-diem lie officer. offi r. Plaintiff that he was first hired r-diem 2012 whi le he worked communication specialist and thereafter as a full-time dispatcher for dcfendant. It is further alleged communication p cialist ther aft r full-tim dispatcher£ r defendant. further alleged that during during th that the course of hi his empl employment plaintiffwas re-tried on the misdemeanor misdemeanor cour e of yment with with defendant, defendant plaintiff was re-tried 16 at whi ely reporting charg earl 20 charge in early 2016 whichh tim time plaintiff plaintiff was found guilty guilty offal of falsely reporting an emergency emergency and sent sentenced 60-day incarc incarceration. Plaintiff forth furtherr all alleges that the defendant defendant denied need to 60-day ration. Plaintiff ges that denied reemployment ba basedd solely solely upon upon his conviction incarcerationn thus thus violating violating the aforementioned convi tion and incarcerati aforementioned employment statutes. statutes. Defendant in tant mot.ion di missal pursuant Counsel Defendant fil filedd th the instant motion for dismissal pursuant to CPLR CPLR §321 93211l(a)(?). (a)(7). Counsel contends that statutess are inapplicable since since th theyy ppertain denial of of contends that the aforementioned afor mention d statut ar inapplicable rtain to denial employment ba based prior to 10 one's employment ed on on convictions convi.cti n that ooccurred cuned prior one s employment, mployment vwhercas herea the plaintiffs plaintiff's omplaint alleges allege that re-employ plaintiff plaintiff following criminal conviction conviction complaint that th the defendant defendant failed tto re-elllploy following a criminal and 60-da 60-day incarceration. incarceration. Plaintiff argue argues that his employment employment upon upon commencement of hi his t rminat d from hi commencement of Plaintiff that he h was a terminated 60-day incarcerati incarcerationn sentcnce uponn completion plaintiff applied applied for employment with 60-da n:t nc and up c mpletion thereof, th r f plaintiff mploym nt with defendant which which was denied upon his priorr conviction. defendant d n.ied solely olel based ba d upon hi pri c nvicti n. 1 of 3 [* 2] Decision: on: Decisi shall the statute that the ically states Section 751 of 23-A of Corrections specifically states that statute "shall tions Law specif of the Conec Article 23-A of Article ection 751 crimin more or more criminalal one or of one conviction of apply to any any ... ... emplo employment person whose whose conviction yment held by any person ...to apply ... by held by yment ... held no emplo that "no offenses such employment" stating that employment... continues stating tatue continues employment" the statue precedes such offen es precedes having s ual indjvid the of ely by reason an denied or accept accepted adversely reason of the individual's having ed upon advers be denied shall be individual. ...shall an individual.. the ise, Sectio Likew es.' offens al been previously convicted of one or more criminal offenses." Likewise, Sectionn 296.15 296.15 of of the crimin more been previously convicted of employment to employment, prior to occun ed prior that occurred tions that Executive Law states states that that the statue only only applies convictions applies to convic the statue tive Law Execu deny to deny person any person ... stating that shall be be an discriminatory practicee for any ... to inatory practic w1lawful discrim an unlawful 'it shall that "it stating one or of one convicted of been convicted having been any ... ... employment individual reason of of his or her having or more more ual by reason any individ to any employment to any of -A 23 Article of ions of Article 23-A of the criminal ... when such denial of the provis provisions the violation of denial is in violation when such offenses ... al offenses crimin asis added Correction Law" (emph (emphasis added).). Correction Law' complaint is iffs complaint ing stah1te Based on the expres expressed of the forego foregoing statutes,s, plaint plaintiffs is language of sed language on the Based d asserte as facts the by belied is on violati ry dismissed as a maHer of law since the alleged statutory violation belied by the facts as asserted alleged statuto dismissed as a matter of law since prior occur that tions convic apply to convictions that occur prior only apply in the the verified statutess only aforementioned statute The aforementioned complaint. The verified complaint. in which defendant after by defendant, employed by fust to one's employment, whereas plaintiff alleges was first employed after which he alleges iff to one's employment whereas plaint to resum iff sough after which he was of aa crime crime and incarcerated 60-days,s after which plaint plaintiff soughtt to resumee erated for 60-day and incarc convicted of was convicted he 575 AD3d 105 Y, of N. r, 105 AD3d 575 his employment Martinoov. v. Consolidated Edison Co. ofN. Consolidated Edison defendant. (See Martin with defendant. yment with his emplo 25 [Mar. 25, 10 at [1st1 Dept. Dept. 2013]; LLC v Edible Edible Arrangements, LLc' 2014 2014 WL 12262 1226210 at p. p. 14 14 [Mar. Arrangements, LLC, Sunny, LLC 2013]· Sunny, [P 2014]).. 2014]) Based on the forego foregoing, hereby ing it is hereby Based sed. ORDERED plaintiffs dismissed. complaint is dismis iff's complaint that plaint RED that ORDE court. order of The foregoing decisionn and order of this court. constitutes the decisio ing constitutes The forego R: ENTER: ENTE 2016 December 14,2016 ber 14, Dated: Decem Poughkeepsie, New York York keepsie New Pough Michaell H. Sussman, ussman, Esq. Micha Watkins Sussman an and Watkins Sussm Allorney Plaint iff for Plaintif]' ey for Attorn Avenue Suite P.O. Box 1005- 1 Railro Railroad Suite 3 ad Avenue, P.O. Goshen, 0924 n NY I10924 Goshe Esq. Gutstein Esq. Keith Gutstein, Matthew E. Cohen, Matthew Cohen, Esq. dants Allorneysfor Defendants eys for Defen Attorn uite 20 135 Crossways Park Drive Drive, Suite 2011 Crossways Park 11797 Woodbury, bury, NY Wood 2 2 of 3 [* 3] after service days after within thirty Pursuant to CPLR right must taken within thirty days service must be taken of right appeal as of 513 an appeal ection 55513, CPLR Section Pursuant and written appealed form by a party party upon appellant of of the judgment form and written notice notice order appealed judgment or order copy of of a copy upon the appellant written order judgment the of copy of its entry, except that when the appellant has served a copy of the judgment or order and written served appellant the when that except of entry days thereof. rty days within thi notice entry, the the appeal taken within thirty thereof. must be taken appeal must of its entry, notice of any submit any When submitting motion paper papers to .Judge Brands' Chambers, pleasee do not submit Chambers, plea Judge Brands' submitting motion When copies.. Submit Submit only the original papers. papers. the original copies 3 3 of 3

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