Schmittau v City of New York

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Schmittau v City of New York 2017 NY Slip Op 32539(U) July 28, 2017 Supreme Court, Richmond County Docket Number: 102020-2011 Judge: Thomas P. Aliotta 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. [* 1] Office of the Richmond County Clerk - Pagel of 6 12/6/2017 9: 47 :35 AM SUPREME COURT OF Tl IE STATE OF NEW YORK COUNTY OF RICHMO 'D: PART C-2 ------------------------------------------------------------------)( JOHN SCII MITTAU and DEN ISE SCHMITTAU, Plaintiff, - against - DECISION & ORDER Index No.: 102020-201 1 Motion No.: 2195-002 2645-003 THE CITY Or: EW YORK, NYC DEPARTMENT OF SANITATION AND STEPIIEN MONTANINO, Defendants. ------------------------------------------------------------------)( Recitation, as required by C.P.L.R. 2219(a), of the papers considered on the review of this motion fu ll y submitted on July 5, 20 17. PAPERS NUMBERED ...... ,...,,, --' Plaintiffs' Notice of Motion (002) and Affirmation with Exhibits Annexed ......................................................... I, 2 :::> t..:: (..) I ...D Defendants' Notice of Cross-Motion (003) ................................................. ) Plaintiffs Affirmation in Opposition to Cross-Motion and Reply with Exhibits Annexed .................................... 4 -0 f".,.) .0 -:;n ' ~- n ...., .·' • j .. ~ ; -< . ,-, ( ') ;.; ..~: Upon the foregoing cited papers, the decision on plaintifrs motion (002) and defendants' cross-motion (003), is as follows: This is an action for damages commenced by plaintiff John Schmittau. The complaint filed alleges several causes of action including hostile work environment, slander, libel, slander per se, negligent training, intentional and negligent inniction of emotional distress and a derivative cause of action on behalf of his wife, Denise. Decedent, John Schmittau, was a sanitation supervisor for the City of New York. The acts alleged in plaintiffs' notice of claim commenced on May 29, 20 I 0 when the decedent was subjected to drug testing, i.e., a breathalyzer and a full body cavity search of his genitals and Index No.: 85044/2017 Page 1 of 6 [* 2] Office of the Richmond County Clerk - Page 2 of 6 12/6/2017 9:47:35 AM rectum. His supervisors deemed the testing appropriate based upon decedent ' s alleged "irrational behavior." The foregoing results were negative. After a formal investigation into this incident, decedent's supervisor was reassigned to another borough. Decedent' s co-workers and subordinates mocked him and undermined his authority as a supervisor causing him physical and emotional distress. Plaintiffs filed a notice of claim on August 29, 2010 and each of them appeared for a statutory hearing on January 25, 2011. Thereafter, plaintiffs commenced this action on June 29, 2011 and defendants served an answer on February 29, 2012. Thereafter, John Schmittau passed away on November 28, 20 12. The Surrogate of Richmond County issued Limited Letters of Administration on April I 0, 2015 and the powers thereunder were expanded by a further Order dated March 29, 2017. Plaintiff, Denise Schmittau, has now filed the instant motion substituting her as plaintiff in this action in her capacity as the Administratrix of the Estate of John chmittau. Defendants have cross-moved to dismiss, seeking an order "dismissing the Complaint on the grounds that plaintifrs motion to substitute is untimely and because the Complaint fails lo state a cause of action." In support of the cross-motion, defendants have submitted only a memorandum of law. Upon the death of a party to an action, the Court shall order that the proper party be substituted in their stead if the substitution occurs before final judgment and is made within a reasonable time (CPLR § I 0 l 5la] and § I 021 ). "The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit" (Terpis "· Regal lleights Rehabilitation and Health Care Center, Inc.. 108 A.0.3d 618, 619 12d Dept. 2013]). Index No.: 85044/2017 Page 2 of 6 [* 3] Office of the Richmond County Clerk - Page 3 of 6 12/6/2017 9:47:35 AM I !ere, unlike the facts presented in Terpis wherein the proposed plaintiff did not attach an affidavit of merit, plaintiff has demonstrated through the sworn notice of claim and the sworn testimony of John Schmittau, that meritorious claims exist as to the second, third, seventh and eighth causes of action (infra.) and that defendants were not prejudiced by the delay. The timely notice of claim and the hearing conducted pursuant to the General Municipal Law afforded defendants a full and fair opportunity to investigate the facts and circumstances of decedent's claims as early as August 20 I 0 (See, Nasca ''· County ofNassau, 10 A.D.3d 415). The notice of claim and testimony also preserved the identity of ten separate sanitation employees and union members who were either witnesses to or participants in the alleged acts claimed by plaintiff. By contrast, defendants' unsworn and conclusory allegation that " [Tjhe prejudice to defendants resulting from plaintiffs delay is as obvious as it is real" in their memorandum oflaw in opposition to plaintiffs motion lacks probative value and is not properly before this Court (Zawatski v. Cheekrowaga-Maryva/e Union Free School Dist., 261 A.D.2d 860 [ 4lh Dept. 1999) Iv. denied 94 .Y.2d 754). 1 Therefore, defendants have not established through admissible evidence that their defense has been prejudiced in any way (Connell v. Brink, 199 A.D.2d I 032, citing, Zuckerman v. City ofNew York, 49 N.Y.2d 557, 562). Despite this lack of prejudice, plaintiff has failed to establish a meritorious cause of action for negligent hiring and supervision (Karoon v. New York Ciry Transit Authority, 241 A.D.2d 323, 324), and harassment, hostile work environment, as plaintiff has neither pleaded nor 1 The action is also distinguishable from Cue//er'" Betanes Food Corp., 24 A.D.3d 20 I (1st Dept. 2005). In Cuel/er, the action was marked ofTthe calendar and dismissed one year later pursuant to CPLR 3404. Although the dismissal was a nullity because it occurred after plaintiff's death and prior to the substitution of a legal representative for him, the Court denied the motion to restore due to the six-year delay in obtaining letters of administration plus the resulting prejudice to defendant. I lere, the action was stayed on the calendar and, therefore, a motion to restore is not before this Court. Index No.: 85044/2017 Page 3 of 6 [* 4] Office of the Richmond County Clerk - Page 4 of 6 12/6/2017 9:47:35 AM . .. established through the pre-action testimony that decedent was a member of a protected class (Johnson v. North Shore Long Island Jewish Ilea/th System, Inc., 137 A.D.3d 977). The sixth cause of action for intentional infliction of emotional distress is also without merit as public policy prohibits such liability against a municipality (Sawitsky v. State, 146 A.D.3d 914, 915). However, there is no such prohibition of liability with respect to a claim for negligent infliction of emotional distress. Although a physical injury is not a necessary element to maintain a cause of action for negligent infliction of emotional distress, '·it must be premised upon conduct which unreasonably endangers the plaintiffs physical safety" (Glendora v. Gal/icano, 206 A.D.2d 456) resulting in contemporaneous or consequential physical harm supported by objective manifestations (Johnson v. State, 37 N.Y.2d 378, 383), or the existence of special circumstances giving rise to the likelihood of genuine and serious mental distress that guarantees the claim is not spurious and allows for recovery in the absence of physical harm or fear of physical harm(/ lering v. Lighthouse 2001, LLC, 21 A.D.3d 449, 45 I, citing Johnson v. State, 37 N.Y.2d 382 [internal quotations omitted]). I lcrc, plaintiff has presented facts that lit within the elements of this cause of action through the sworn notice of claim and pre-action testimony, i.e., that despite a brcathalyzer and body cavity search returning negative results, the events were negligently communicated to his co-workers and subordinates who, in tum, then ridiculed decedent causing him to suffer mental distress, insomnia, irritable bowel syndrome and difficulty in his marriage. Again, defendants' unsworn statement that the foregoing was neither published nor communicated to third parties is without probative value. At the pleading stage and prior to discovery, plaintiff docs not have knowledge of, and cannot possibly plead, any further factual allegations concerning publication of the alleged defamatory statements (See, Knulf v. Metro. 91 A.D.3d 915). Decedent's sworn testimony has Index No.: 85044/2017 Page 4 of 6 [* 5] Office of the Richmond County Clerk - Page 5 of 6 12/6/2017 9:47:35 AM set forth facts which support the prima facie publication of the allegations of drug usage and irrational behavior to his co-workers and subordinates. These facts also, on their face, fit within a cognizable cause of action for libel and slander per se in that the alleged fa lse statements caused decedent to be injured in hi s trade or profession as a sanitation supervisor (See Liberman v. Ge/stein, 80 N.Y.2d 429). Therefore, defendants' motion to dismiss with respect to decedent's second, third and seventh cause of action, and the Administratrix' eighth cause of action, is denied with leave to renew upon the conclusion of discovery. Accordingly, it is hereby ORDERED, that the Administratrix' motion to be substituted as plaintiff in this action is granted; and it is further ORDERED, that the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICI IMOND ------------------------------------------------------------------)( DENISE SCI IMITl'AU, as the Administratrix of The Estate of JOHN SCHMITTAU, and DENISE SCI IMITTAU, Individually, Plaintiff, - against TI IE CITY OF NEW YORK, NYC DEPARTMENT OF SANITATIO A D STEPllEN MO TANINO, Defendants. ----------------------- ---------------- -- ------- --- ---- -----------)( and it is further, ORDERED, that defendants' cross-motion to dismiss is granted as to the first, fourth, fifth and sixth causes of action only; and it is further Index No.: 85044/2017 Pages of 6 [* 6] Office of the Richmond County Clerk - Page 6 of 6 12/6/2017 9:47:35 AM ORDERED, that defendants' cross-motion is denied as to the second, third, seventh and eighth causes of action. This constitutes the decision and order of the Court. DatcdJ ... L~ l8, 2017 ENTER: IION. THOMAS P. ALIOTTA, J.S.C. Index No.: 85044/2017 Page 6 of 6

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