Rosenwasser v Carroll

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Rosenwasser v Carroll 2017 NY Slip Op 32392(U) May 12, 2017 Supreme Court, New York County Docket Number: 105186/2011 Judge: David B. Cohen 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] SUPREME COURT OF THE STATE OF NEW YORK .·.·:::NEW YORK COUNTY PART 58 ---·~-~~~~~:~~~~---~~~-------~------------------------------ ----X MATTHEW J. ROSENWASSER; Index No.: 105186/2011 Plaintiff, \ \i . -against. ·, . · JOHN CARROLL & FORDHAM L ~;· ODF~~isION/ORD~RB. Cohen : Hon. David i Pr~·t: : UNIVE~IT~A1 2~4 Defendants. ~iuN't'/ C~ . ..Ji..,,, . -----------------------------------------------------~~~:~...-:--.~ .. Recitation, as required by CPLR §2219(a), ot'the.papers considered in the underlying motion: Papers · Number Notice of Motion for Summary Judgment and affidavits annexed ........................ 1 Affirmation in Opposition and affidavits ..................................................... 2 Reply ............................................................................................... 3 Upon the foregoing cited papers, the decision/order on this motion for summary judgment pursuant to CPLR 3212: is as follows; . I I ~ I I Plaintiff Matthe~ J. Rosenwasser had registered and taken two classes at defendant ! I Fordham University in Fall 2008 and Fall 2009. On January 21, 2010, at a time period when I • . I plaintiff was not currenflY enrolled or taking ahy classes at .Pordham, plaintiff submitted an ! application for Alumni Borrowing Privileges to the Quinn Library of Fordham and was issued an I alumni_ lib~ary card. Plaintiff contends that the alumni application was provided to him because I I th~re was no other cardifor a "working-class student that was paying off a large tuition bill." P.~aintiff was able to obtain access to the Fordham library through this card. Between January 2010 and May 2010, plaintiff came to the library often and spoke with many people including a security guard named Melinda Joyner. On May 14, 2010, Joyner complained to the Fordham Safety and Security Department that she felt :hara;ssed by plaintiff. Joyner complained about : ,; [* 2] several instances, incluqing that she felt that plaintiff had followed her down the street to the subway, that plaintiff flashed the headlights of a car at her one day and that she found plaintiff in the corridor at 2:00 am upon exiting the locker room. Joyner complained that she felt harassed by pfaiiltiff." Following Joyner's complaint, on May 17, 2010, three security guards approached I . ' plaintiff in the library aqd ordered him to leave the library and go with them. The guards did not grab plaintiff, nor place plaintiff in handcuffs. The security guards brought plaintiff to a security . . ·:·:,.office where they proce~ded to ask plaintiff questions about Joyner's allegations. On May 19, 2019, Joyner's complaint was reduced to a written form, on which the type of incident is listed as "harassment." Plaintiff wrote several emails to various Fordham staff ~!t.empting .to explain and defend against the complaint made by Joyner. On May 21, 2010, John Garr.oil, tp~ipea~:~f the Fordham Safety and Security Department wrote a letter to plaintiff stating that plaintiff was not cu~rently enrolled at Fordham, had no legitimate reason to be on any Fordham campus and there was no reason to. discuss, defend or consider Joyner's allegations. The • I l~tt~r went ' ' on to advise plaintiff that he was not permitted on Fordham University property for any • I reason and should plaintiff disregard this, campus security was permitted to take him into custody ~a file trespassing charges. At some point, Fordham became aware that plaintiff had obtained an alumni library card and paid the $100 fee. Fordham then sent plaintiff a r~fund for his library card as he was not an ; ~ l .. ; .... \. • • • • ' • I alumni of Fordham. Fordham did not rescind the prohibition on plaintiffs entry on Fordham • • I prpperty:: According to tµe University Cod<f of Conduct, Fprdham reserves the right to withdraw t~e .. privilege of an invite~ or licensee on its premises. ' 2 [* 3] .• .. :·; I :e1~ntiff .~ommenced ..,. .. . . . . :... . . . n~ed this action and alleges seven causes of action against the currently ~ defendants, Joyner and Joyner's employer, Summit Security. Following motion practice, on October 11, 2011, Justice Mills dismissed Joyner and Summit from this action. Justice Mills ·.. , a~~? di~ll_lissed the I ••..• 5 ', 3rd, 4t11, 5lh, 61h and 7th causes of action. 1 The remaining cause of action ·1-.· ...... alle'g·es'thafFordham and Carroll failed to follow university procedures in permanently banning plaintiff from campus. Specifically, the second cause of action alleges that defendants failed to I provide him with the due process required under Fordham's sexual harassment policy by not I performing a proper investigation, by not referring the sexual harassment allegations to Fordham's Director of Equity and ~qual Opportunity, by not maintaini 11g confidentiality and other portions of the sexual harassment policy. ~ • I Summary judgm~nt is a drastic remedy that should not be granted where there exists a tr:i~~bJ~,}.~~qe:~ff~~~ .(lnte,rgrated Logistics Consultants v. Fida/a Corp., 131AD2d338 [1st Dept 1987]; Ratner v. Elovitz,; 198 AD2d 184 [1st Dept 1993]). On a summary judgment motion, the . ' court must view all evid~nce in a light most favorable to the non-moving party (Rodriguez v. P~':~c~este~ South Con~ominium Inc., 178 AD2d 231 [1st Dept 1991 ]). The moving party must ·~~w that as a matter of 1Jaw it is entitled to judgn:iynt [Alvarez v. Prospect Hosp., 68 NY2d 320 I • I • 324 [1986p. The propo~ent of a summary judgment motion must make a prima facie showing of I entitlement to judgment :as a matter of law, t~~dering sufficient evidence to eliminate any material ~~:su~~ .~f fact from the case (Wine grad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). After 1 Although the Ordered paragraphs do not clearly specify that the 3rd Cause of action was dismissed, ·the 3rd cause of action was for intentional infliction of emotional distress which Justice Mills clearly ruled must .be dismissed in the body of the decision. 3 [* 4] "- :_ :th(!Jnoving party has demonstrated its prima facie . entitlement to summary judgment, the party . . . ""'t "-_.:. - .. ~·, -:·l'-~t·:' ~.:. . _·._ ... :. opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial (Zuckenrian v. City ofNew I • Y,o~~, 49 . NY2d ?57 [1980]). " . Here, defendants, have submitted the deposition of Mr. Carroll, who stated that Joyner did ·· riofeverflle a.complaint for sexual harassment. Joyne~' s complaint was for harassment and at no time did Joyner complaip that she was being sexually harassed. Further, Carroll specifically testified that the written report states that the incident report type was for harassment and not sexual harassment. In sum, defendant acknowledges that it did not follow the sexual harassment • • . I • I • • • '. ! • I' ~ ' • procedures for the simplF reason that this was not a sexual harassment matter but one of regl:llar harassment. Plaintiff argues tpat the actions alleg!!s by Joyner are actions that would constitute sexual harassm~nt.. However, even if true, Joyner dip not complaint of sexual harassment and Fordham . ·--~·~.--· ..... ~, . . . . . . . . . t.· ·, . took actions based upon1what her complaint was for, regul~ harassment. As defendants' were not I I investigating a claim fo~ sexual harassment, Fordham was not under any duty to follow the sexual ha!assqient policy. Upon learning that plaintiff was not an enrolled student, defendants exercised ..,., . die.ircrights under .the University Code of Conduct and withdrew plaintiffs privilege as an invitee • • •' ' i or licensee. Plaintiffs allegations that defendants have violated his Federal rights was not pied, is Peing brought up at this juncture for the first time and is not being cfsi,ei\ii. "'' . For the above re~sons it is therefore '.":';,;. £i~ou~ MAY 2 2 7.0\1, _,jl ORDERED, that the remaining cause of action i~ dismiss~~ . Dated:Mayl2,2017 , . · New York, NY --~-#-~~-----Hon. ~s:cc;hen, J.S.C . ~;.· 4

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