Lax v City Univ. of N.Y.

[*1] Lax v City Univ. of N.Y. 2022 NY Slip Op 22270 Decided on August 25, 2022 Supreme Court, Kings County Abadi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 25, 2022
Supreme Court, Kings County

Jeffrey Lax, Plaintiff,

against

The City University of New York and Stuart Suss, Defendants.



Index No. 508042/2021

Gina Abadi, J.

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/Petition/
Cross Motion and Affidavits (Affirmations) Annexed 4, 6-9
Opposing Affidavits (Affirmations) 16-18
Affidavits/ Affirmations in Reply 22-24
Defendants' Memorandum of Law 5
Plaintiff's Memorandum of Law 15
Defendants' Reply Memorandum of Law 21

Upon the foregoing papers, in this action by plaintiff Jeffrey Lax (plaintiff) against defendants the City University of New York (CUNY) and Stuart Suss (Suss) (collectively, defendants) alleging claims of employment discrimination, hostile work environment, and retaliation, defendants move, under motion sequence number one, for an order, pursuant to CPLR 3211 (a) (1), (5), and (7), dismissing plaintiff's complaint based on the grounds that plaintiff's claims are barred by his inadequate notice of claim, barred by the applicable statute of limitations period, and, to the extent otherwise potentially viable, fail to state a claim upon which relief can be granted.

Facts and Procedural Background

Plaintiff is a professor and the chairperson of the business department of Kingsborough Community College (Kingsborough), a public community college that is part of the CUNY system. Plaintiff commenced his employment with Kingsborough in 2004, was promoted to associate professor in 2010, became chairperson of the business department in 2011, and was promoted to professor in 2013. Plaintiff is an Orthodox Jew, who characterizes himself as an "obvious Jew" or "outward Jew."

Suss is the former provost, acting president, and vice-president of academic affairs of [*2]Kingsborough. Plaintiff claims that during his employment at Kingsborough, Kingsborough and Suss harassed him and subjected him to disparate treatment and a hostile work environment due to his religion, and subjected him to retaliation after he made complaints of discrimination.

Plaintiff filed a notice of claim on August 19, 2015 (NYSCEF Doc No. 9). In this notice of claim, plaintiff describes the nature of the claim as: "breach of fiduciary duties, libel per se, slander per se, intentional infliction of emotional distress, libel, slander." Plaintiff's notice of claim states the place where the claim arose as Kingsborough and the time when it arose as "June 2, 2015 letter to claimant culminated, months and years of tortious activity." It lists the items and damages of the injuries claimed by him as: "failure to promote, damage to reputation, slandered, libel and . . . intentional infliction of emotional distress." It lists $15 million as the amount of damages claimed. Plaintiff's notice of claim does not list any claims of discrimination or retaliation under the New York State Human Rights Law (Executive Law § 290, et seq.) (NYSHRL) or the New York City Human Rights Law (Administrative Code of the City of New York § 8-107, et seq.) (NYCHRL).

Approximately six months after filing the notice of claim, plaintiff, on February 16, 2016, filed an action in the United States District Court for the Eastern District of New York, alleging federal claims under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, et seq., and under 42 USC § 1983, as well as NYSHRL claims and NYCHRL claims against defendants. Defendants moved, pursuant to rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing all of plaintiff's claims.

District Court Judge LaShann DeArcy Hall, in a judgment signed on October 21, 2020, granted defendants' motion for summary judgment to the extent that she dismissed plaintiff's claims asserted under federal law, with prejudice. Having dismissed all of the federal claims in that action, Judge Hall declined to exercise supplemental jurisdiction pursuant to 28 USC § 1367 (c) (3), over plaintiff's claims under the NYSHRL and the NYCHRL, and dismissed those claims, without prejudice (NYSCEF Doc No. 7; Lax v City Univ. of New York, 2020 WL 6161253, 2020 US Dist LEXIS 195687 [ED NY Oct. 21, 2020, 16-CV-799 (LDH) (VMS)]). On November 19, 2020, plaintiff appealed the District Court's judgment. By a decision and order dated January 11, 2022, the United States Court of Appeals, Second Circuit, affirmed the District Court's judgment (NYSCEF Doc No. 23; Lax v City Univ. of New York, 2022 WL 103315, 2022 US App. LEXIS 792 [2d Cir Jan. 11, 2022, 20-3906-CV]).

On April 6, 2021, within six months of dismissal of the federal action, pursuant to the tolling provision of CPLR 205 (a), plaintiff filed the instant action, in which he alleged his NYSHRL claims and NYCHRL claims (NYSCEF Doc No. 1). Plaintiff's complaint (NYSCEF Doc No. 8) alleges that defendants engaged in a systematic policy or practice of discrimination that commenced in approximately 2011 and continues today. Plaintiff describes how defendants ridiculed, intimidated, and insulted Jewish employees by systematically eliminating Jews from the faculty, excluded and minimized the roles of the Jewish faculty members who survived elimination, subjected Jewish faculty members to frequent verbal harassment and disparate treatment, and encouraged anti-Semitism on Kingsborough's campus.

Specifically, plaintiff sets forth that discriminatory hiring practices reduced the number of Jewish faculty members at Kingsborough and contributed to a pervasively hostile work environment. He alleges that commencing in approximately 2011, Suss excluded duly elected Departmental Personnel & Budget Committee members who were Jewish from screening candidates on the basis that there were "too many Jews." He further alleges that on multiple [*3]occasions, Suss summarily refused to interview the candidates chosen by the Departmental Personnel & Budget Committee if such candidates had a Jewish name.

Plaintiff alleges that in order to minimize the Jewish faculty, Suss refused to allow him and the other Jewish chairpersons to serve on any college committees that met in 2013-2014 and 2014-2015, other than those to which they were already entitled on account of their positions as chairpersons. Plaintiff further alleges that in 2014, Suss insisted upon scheduling the interviews of Jewish candidates for positions at Kingsborough on Jewish holidays. Plaintiff asserts that "[b]y mid-2015 the religious discrimination became so palpable that some department chairs encouraged Jewish candidates to remove all religious head coverings, and any other personal items symbolic of their religious beliefs, before meeting with Suss."

Plaintiff further alleges that various comments and hostile behavior contributed to a hostile work environment and atmosphere at Kingsborough. He describes how Suss mocked the religious head coverings of Jewish faculty members; voiced support for suicide bombers and their attacks against Jews; referred to Jews as "horrible"; called Jews "the Devil," "crazy," and "evil"; agreed that some departments at Kingsborough should "never hire Jews"; denigrated people for keeping kosher; assumed that all Jews know one another's business; referred to Jews as the "enemy"; and constantly reminded people that he knew that they were Jewish. Plaintiff states that on June 3, 2014, he complained to interim provost, Dr. David Gomez, about Suss' comments and discriminatory conduct, and while Dr. Gomez held a meeting between him and Suss in an attempt to resolve this issue, Dr. Gomez failed to investigate or address Suss' conduct at the meeting and allowed Suss' "crusade against Jewish faculty members to continue unabated."

Plaintiff also alleges that he suffered disparate treatment because despite his outstanding work performance, he was treated less favorably and with hostility by defendants, as compared with similarly situated non-Jewish employees. Plaintiff states that in mid-2013, defendants used extraordinary measures to prevent him from obtaining a promotion to professor, and that in March 2014, when he "was ripe for a salary increase," and requested a raise from the provost, Suss overruled the provost and denied his application. Plaintiff also states that defendants refused to appoint him to any active college committees, while awarding committee appointments to less qualified non-Jewish faculty members. Plaintiff claims that religious discrimination motivated the hostile working environment and disparate treatment.

In addition, plaintiff alleges that Kingsborough fostered anti-Semitism by, among other things, failing to investigate complaints about anti-Semitic comments and declining to implement remedial action. He asserts that since 2013, numerous swastikas were drawn or scratched at various locations throughout Kingsborough's campus.

Plaintiff describes how he made four formal complaints of discrimination. Plaintiff states that on March 17, 2014, he made a complaint of religious discrimination to Kingsborough's general counsel, but Kingsborough failed to investigate or address it and the discrimination and harassment that he was subjected to only intensified, including Suss' refusal, on March 25, 2014, to meet with him to discuss a compensation increase. Plaintiff further states that on June 3, 2014, he made a complaint of religious discrimination and retaliation to interim provost, Dr. Gomez, that on May 11, 2015, he made a complaint of discrimination to the Director of Human Resources Investigations at CUNY, Pinar Ozgu, and that on October 23, 2015, he issued a complaint of religious discrimination and retaliation to Kingsborough's Chief Diversity Officer. He asserts that after each of these complaints, the discrimination and harassment, to which he [*4]was subjected, only intensified. Plaintiff alleges that he also filed a charge of discrimination against defendants with the Equal Employment Opportunity Commission (the EEOC).

Plaintiff alleges that after he filed the federal action on February 16, 2016 and the EEOC charge, defendants engaged in further disparate acts and defendants' retaliation intensified. Specifically, plaintiff claims that CUNY significantly reduced his compensation and excluded him from a compensation increase that the majority of Kingsborough's chairpersons received.

Plaintiff's first cause of action under the NYSHRL and second cause of action under the NYCHRL allege that defendants discriminated against him based upon his religion, and that the hostile work environment at Kingsborough was sufficiently severe and pervasive so as to alter the terms and conditions of his employment and created a subjectively and objectively abusive/discriminatory work environment. Plaintiff's third cause of action under the NYSHRL and fourth cause of action under the NYCHRL allege that defendants retaliated against him, and as a direct and proximate result of defendants' retaliatory practices, he was humiliated and embarrassed within the work atmosphere, which was brought about by virtue of defendants' systematic and continuous unlawful harassment and multiple discriminatory practices and acts. Plaintiff alleges that he has sustained substantial damages. He seeks, among other things, a money judgment against defendants, including but not limited to lost wages, lost benefits, other economic damages, a promotion or front pay, punitive damages, and attorney's fees.

On July 28, 2021, defendants filed the instant motion, under motion sequence number one, to dismiss plaintiff's complaint (NYSCEF Doc No. 4). Plaintiff filed opposition papers on November 19, 2021, in which he withdrew his claims under the NYSHRL (NYSCEF Doc No. 15 at 3). Thus, plaintiff's only remaining claims are his second and fourth causes of action under the NYCHRL.

Discussion

In support of their motion, defendants contend that plaintiff's NYCHRL claims against them are barred in their entirety as a result of plaintiff's failure to file a sufficient and timely notice of claim as mandated by Education Law § 6224. Education Law § 6224 provides as follows:

1. The provisions of sections fifty-e and fifty-i of the general municipal law shall, notwithstanding any inconsistent provision of law, continue to apply to actions and proceedings based on a cause of action involving a community college of the city university of New York or an officer, agent, servant or employee of such community college acting in the course of his employment. The provisions of subdivisions four, five and six of this section shall not apply to such actions and proceedings.2. No action or proceeding based on a cause of action involving a community college of the city university of New York or an officer, agent, servant or employee of such community college acting in the course of his employment may be prosecuted or maintained unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since a demand setting forth the underlying basis for such matter was presented to the city university for adjustment, and that the officers or bodies having the power to adjust or pay such demand have neglected or refused to make an adjustment or payment thereof for thirty days, after such presentment.

Thus, Education Law § 6224 requires a plaintiff to file a notice of claim within 90 days of the events giving rise to his or her lawsuit. Plaintiff does not contend that he has filed a valid [*5]notice of claim in this action. Plaintiff only contends that he was not required to file a notice of claim because this notice of claim requirement only applies to tort claims and his claims are for discrimination and retaliation under the NYCHRL, which are not torts.

However, in McKie v LaGuardia Community Coll./CUNY (85 AD3d 453, 454 [1st Dept 2011]), the Appellate Division, First Department, held that "pursuant to the plain language of Education Law § 6224 (1), which expressly incorporates the requirements of General Municipal Law §§ 50-e and 50-i, the requirement of filing a notice of claim within 90 days as a condition precedent to bringing suit against a community college of the City University of New York (CUNY) applies to all claims asserted against such community college, not just tort and wrongful death claims (emphasis added) (see also Rodriguez v City Univ. of New York, 2021 WL 1345363, *1 [Sup Ct, NY County 2021, 20-CV-8143 (ER)]).

While plaintiff cites to Margerum v City of Buffalo, 24 NY3d 721 [2015]), the Court of Appeals, in Margerum, held only that the notice of claim requirements of General Municipal Law §§ 50-e and 50-i do not apply in "an action based on the Human Rights Law . . . where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria"(id at 730). Margerum did not involve a claim against an educational institution and, therefore, did not involve Education Law § 6224.[FN1] Here, Education Law § "6224 'provide[s] alternate notice of claim criteria,' and, unlike General Municipal Law §§ 50-e and 50-i, Education Law § 6224's notice of claim requirement applies to all claims [involving a community college of the city university of New York], including discrimination claims" (Rodriguez, 2021 WL 4555598, *2, quoting Washington v Borough of Manhattan Community Coll., 2016 WL 7410717, *2, 2016 US Dist LEXIS 176593, *4 [SD NY Dec. 21, 2016, No. 16 Civ 6168 (PAE)]).

Indeed, the plain language of Education Law § 6224 indicates that the notice of claim requirement is not restricted to tort claims. Education Law § 6224 (1) applies to "actions and proceedings based on a cause of action involving a community college"; Education Law § 6224 (2) similarly applies to an "action or proceeding based on a cause of action involving a community college"; and Education Law § 6224 (3) applies to "any person presenting to [the city university] for settlement an account or claim for any cause whatever against it" (emphasis added). This language reflects Education Law § 6224's broader application, as compared to General Municipal Law §§ 50-e and 50-i. Thus, while Education Law § 6224 incorporates the procedural requirements of General Municipal Law § 50-e and § 50-i, it imposes those requirements on all claims, including discrimination claims (see Rodriguez v City Univ. of New York, 2021 WL 1345363, *2 [Sup Ct, NY County, April 8, 2021, Engoron, J., index No. 152260/2021]).

There are two federal district court cases, namely, Keles v Yearwood (254 F Supp 3d 466 [*6][ED NY 2017]), and Colas v City of Univ. of NY, (2019 WL 2028701, 2019 US Dist LEXIS 80279 [ED NY May 7, 2019, No. 17-CV-4825 (NGG)]), which have construed Education Law § 6224 narrowly. However, the decisions in these two federal district court cases are contrary to the plain language of Education Law § 6224 and the numerous decisions of other federal district court cases which have addressed this same issue and ruled that Education Law § 6224 applies to discrimination claims (see James v Borough of Manhattan Community Coll., 2021 WL 5567848, *4, 2021 US Dist LEXIS 229173, *9 [SD NY Nov. 29, 2021, 20-CV-10565 (LJL)]; Rodriguez v Hostos Community Coll., 2021 WL 4555598, *2, 2021 US Dist LEXIS 192080, *3 [SD NY Oct. 5, 2021, 20-CV-8143 (ER)]; Fells v Borough of Manhattan Community Coll. of City Univ. of New York, 2018 WL 4925658, *6, 2018 US Dist LEXIS 146509, *12 [SD NY Aug. 27, 2018, 17 Civ 7117 (AT) (HBP)]; Washington v Borough of Manhattan Community Coll., 2016 WL 7410717, *1, 2016 US Dist LEXIS 176593, *3 [SD NY Dec. 21, 2016, No. 16 Civ 6168 (PAE)]; Goldstein v Borough of Manhattan Community Coll., 2013 WL 3784146, *4, 2013 US Dist LEXIS 102277, *11 [SD NY July 18, 2013, 12 CIV 08589 (CM)]; Siegel v LaGuardia Community Coll., 2006 WL 1084780, *6, 2006 US Dist LEXIS 22931, *17 [ED NY 2006, No. 05 CV 320 (SLT) (RER)], affd 249 Fed Appx 850 [2d Cir 2007]).

In any event, a federal decision on a matter of state law, such as the construction of a state statute, is not binding on the state court in the absence of a federal constitutional question (see Harnett v New York City Tr. Auth., 200 AD2d 27, 32 [2d Dept 1994], affd 86 NY2d 438 [1995]). On the other hand, where an issue has not been addressed within the Supreme Court's own Department, "the Supreme Court is obligated to follow the precedent set by the Appellate Division of another Department until its home Department or the Court of Appeals pronounces a contrary rule" (Maple Med., LLP v Scott, 191 AD3d 81, 90 [2d Dept 2020], affd sub nom. Columbia Mem. Hosp. v Hinds, — NY3d —, 2022 NY Slip Op 03306 [May 19, 2022]; see also Phelps v Phelps, 128 AD3d 1545, 1547 [4th Dept 2015]; D'Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014]; Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984]).

Thus, this court is bound to follow the precedent set by the Appellate Division, First Department, in McKie (85 AD3d at 454), which, as noted above, held that pursuant to Education Law § 6224, the requirement of filing a notice of claim applies to all claims, including discrimination claims, asserted against a community college of CUNY, not just tort and wrongful death claims (see also Rodriguez, 2021 WL 1345363, *1). Thus, a failure by plaintiff to file a valid notice of claim in this action requires that this action be dismissed for failure to comply with Education Law § 6224 (see CPLR 3211 [a] [7]).

The court notes that in response to defendants' argument that the August 19, 2015 notice of claim was insufficient based on its failure to sufficiently encompass the discrimination and retaliation claims brought in his instant complaint, plaintiff does not even attempt to argue that this was a valid notice of claim. Plaintiff's complaint and his opposition papers also did not refer to this notice of claim (see Education Law § 6224 [2]).

General Municipal Law § 50-e (2) sets forth the criteria for the contents of a notice of claim. In pertinent part, the requirements of General Municipal Law § 50-e (2), which are incorporated in Education Law § 6224 (1), provide that the claimant must state "the nature of the claim," "the time when, the place where and the manner in which the claim arose," and "the items of damage or injuries claimed to have been sustained" (see Matter of Melissa G. v N. Babylon Union Free School Dist., 50 AD3d 901, 902 [2d Dept 2008]). "The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity [*7]to investigate the circumstances surrounding the [incident] and to explore the merits of the claim while information is still readily available" (Vallejo-Bayas v New York City Tr. Auth., 103 AD3d 881, 882 [2d Dept 2013]). Here, plaintiff's August 19, 2015 notice of claim only referred to breach of fiduciary duties, libel, slander, and intentional inflection of emotional distress, and did not give defendants notice of plaintiff's NYCHRL claims of discrimination and retaliation. It also only referred to a June 2, 2015 letter.

"'Causes of action for which a notice of claim is required which are not listed in the plaintiff's . . . notice of claim may not be interposed'" (Finke v City of Glen Cove, 55 AD3d 785, 786 [2d Dept 2008], quoting Mazzilli v City of New York, 154 AD2d 355, 357 [2d Dept 1989]; see also Meyer v Magalios, 170 AD3d 1163, 1166 [2d Dept 2019]; O'Connor v Huntington U.F.S.D., 87 AD3d 571, 571 [2d Dept 2011]; Semprini v Village of Southampton, 48 AD3d 543, 544 [2d Dept 2008]). As previously noted, plaintiff's NYCHRL claims were not listed in his notice of claim. By asserting the NYCHRL claims in his complaint, plaintiff substantively changed the nature of the claims listed in his notice of claim from breach of fiduciary duties, libel, slander, and intentional infliction of emotional distress. Plaintiff's NYCHRL claims "were not referred to, either directly or indirectly in [his] . . .notice of claim," and "would substantially alter the nature of the plaintiff['s] claims" (Demorcy v City of New York, 137 AD2d 650, 650-651 [2d Dept 1988]; see also Meyer, 170 AD3d at 1166; Finke, 55 AD3d at 786; Rice v New York City Hous. Auth., 149 AD2d 495, 497 [2d Dept 1989]; Mojica v New York City Tr. Auth., 117 AD2d 722, 723 [2d Dept 1986]). The court does not find that plaintiff's NYCHRL claims can be inferred from his claims alleging breach of fiduciary duties, libel, slander, and intentional infliction of emotional distress.

Furthermore, plaintiff's NYCHRL claims are not corrections to the notice of claim that may occur under General Municipal Law § 50-e (6) since "'amendments of a substantive nature are not within the purview of General Municipal Law § 50-e (6)'" (Palmer v Society for Seamen's Children, 88 AD3d 970, 972 [2d Dept 2011], quoting Demorcy, 137 AD2d at 651; see also Harrington v City of New York, 6 AD3d 662, 663 [2d Dept 2004]; Johnson v County of Suffolk, 238 AD2d 480, 480 [2d Dept 1997]). Thus, inasmuch as the notice of claim failed to adequately apprise defendants of plaintiff's NYCHRL claims, it was insufficient to satisfy the notice of claim requirement of Education Law § 6224.

Therefore, without reaching the merits of plaintiff's NYCHRL claims, dismissal of these claims is mandated based upon this procedural defect (see CPLR 3211 [a] [7]). Furthermore, it is noted that since plaintiff filed his notice of claim on August 19, 2015, any allegations concerning events occurring prior to May 21, 2015, i.e., 90 days prior to such filing, would, in any event, be time-barred (see CPLR 3211 [a] [5]).

Defendants also contend that this action should be dismissed on the basis of collateral estoppel. "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). To invoke the issue preclusion doctrine of collateral estoppel, the following four conditions must be satisfied: "'(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits'" (Conason v Megan Holding, LLC, 25 NY3d 1, 17 [*8][2015], quoting Alamo v McDaniel, 44 AD3d 149, 153 [1st Dept 2007]; see also Clifford v County of Rockland, 140 AD3d 1108, 1109 [2d Dept 2016], lv denied 28 NY3d 906 [2016]; Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 116 AD3d 134, 138 [1st Dept 2014]). "The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" (Matter of Dunn, 24 NY3d 699, 704 [2015], see also Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]).

"Where a federal court declines to exercise jurisdiction over a plaintiff's [NYSHRL and NYCHRL] claims, collateral estoppel may still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff's state [and city] claims" (Milione v City Univ. of NY, 153 AD3d 807, 808-809 [2d Dept 2017], lv denied 30 NY3d 907 [2017], cert denied — US — 138 S Ct 2027 [2018]; see also Clifford, 140 AD3d at 1110; Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 23 [1st Dept 2014]). Notably, there is a more liberal analysis of claims of discrimination and disparate treatment under the NYCHRL than under the NYSHRL or federal law (see Johnson v IAC/InterActiveCorp, 179 AD3d 551, 552 [1st Dept 2020], lv denied 35 NY3d 912 [2020]). Nevertheless, a "federal court's decision collaterally estops [a] plaintiff[ ] from relitigating [the] discrete factual issues that were decided against [him or her] in the federal action" (Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 515 [1st Dept 2016], lv denied 28 NY3d 902 [2016]).

"[A] plaintiff alleging employment discrimination in violation of the NYCHRL 'has the initial burden to establish a prima facie case of discrimination'" (Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 [1st Dept 2012], quoting Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). "'To meet this burden, [a] plaintiff must show that (1) [he or she] is a member of a protected class; (2) [he or she] was qualified to hold the position; (3) [he or she] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination'" (Melman, 98 AD3d at 113, quoting Forrest, 3 NY3d at 305; see also Ayers v Bloomberg, L.P., 203 AD3d 872, 874 [2d Dept 2022]; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1002 [2d Dept 2021]; Askin v Department of Educ. of the City of NY, 110 AD3d 621, 622 [1st Dept 2013]). "'The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision'" (Melman, 98 AD3d at 113-114, quoting Forrest, 3 NY3d at 305). "'In order to nevertheless succeed on [his] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason'" (Melman, 98 AD3d at 114 [1st Dept 2012], quoting Forrest, 3 NY3d at 305).

"Under the NYCHRL, a plaintiff claiming a hostile work environment need only demonstrate that he or she was treated 'less well than other employees' because of the relevant characteristic" (Bilitch, 194 AD3d at 1003, quoting Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020], lv denied 36 NY3d 904 [2021]; see also Nelson v HSBC Bank USA, 87 AD3d 995, 999 [2d Dept 2011]). "'The conduct alleged must, however, exceed 'what a reasonable victim of discrimination would consider petty slights and trivial inconveniences'" (Bilitch, 194 AD3d at 1003, quoting Williams v New York City Hous. Auth., 61 AD3d 62, 80 [1st Dept 2009], lv denied 13 NY3d 702 [2009] [internal quotation marks omitted]), and "'mere [*9]personality conflicts' will not suffice to establish a hostile work environment" (Bilitch, 194 AD3d at 1003, quoting Forrest, 3 NY3d at 309).

" ' "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct" ' " (Bilitch, 194 AD3d at 1004, quoting Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235-1236 [2d Dept 2019], quoting Brightman v Prison Health Serv., Inc., 108 AD3d 739, 740 [2d Dept 2013]). "Where a defendant produces 'evidence that justifies [his or her] allegedly retaliatory conduct on permissible grounds . . . [t]he plaintiff must either counter the defendant's evidence by producing evidence that the reasons put forth by the defendant were merely a pretext, or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by an impermissible motive' " (Bilitch, 194 AD3d at 1004-1005, quoting Brightman, 108 AD3d at 741; see also Reichman, 179 AD3d at 1120).

Here, the District Court found that defendants "[s]ufficiently demonstrated they had a legitimate, nondiscriminatory reason for failing to promote [p]laintiff in May of 2013," that plaintiff had not "[o]vercome [d]efendant's legitimate basis for denying [p]laintiff a promotion in May 2013," and that plaintiff failed to adduce sufficient evidence to show that defendants' denial of a compensation increase to him occurred under circumstances giving rise to an inference of discrimination. Furthermore, the Second Circuit affirmed the District Court's decision dismissing all of plaintiff's federal claims, and held, among other things, that "[n]one of the [purported] adverse employment actions on which [plaintiff] relie[d] support[ed] his disparate treatment claims," that plaintiff had not adduced evidence of harassment or discrimination sufficient to constitute a hostile work environment, and that with respect to plaintiff's retaliation claim, plaintiff had "adduced no evidence showing that he was qualified for a salary increase, nor d[id] he proffer evidence disputing the interim provost's statement that Suss was not made aware of [plaintiff's] complaints about Suss."

Even affording plaintiff's NYCHRL claims the liberal analysis to which they are entitled and without reaching the merits of these claims, these claims would be barred under the doctrine of collateral estoppel based on Judge Hall's October 21, 2020 decision and order, and the Second Circuit's January 11, 2022 decision and order (see CPLR 3211 [a] [5]; Russell v New York Univ., 204 AD3d 577, 578 [1st Dept 2022]; Johnson, 179 AD3d at 552; Karimian v Time Equities, Inc., 164 AD3d 486, 489 [2d Dept 2018], lv dismissed 32 NY3d 1074 [2018]; Hudson, 138 AD3d at 515). In any event, even if all of plaintiff's NYCHRL claims now alleged were not barred by the doctrine of collateral estoppel, this action must be dismissed since, as discussed above, plaintiff failed to file a proper notice of claim (see CPLR 3211 [a] [7]).

Conclusion

Accordingly, defendants' motion, under motion sequence number one, to dismiss plaintiff's complaint against them is granted.

This constitutes the decision, order, and judgment of the court.

E N T E R
Hon. Gina Abadi
J.S.C. Footnotes

Footnote 1:The other cases cited by plaintiff in opposition to defendants' motion, namely, Cervenka v New York City Tr. Auth. (216 AD2d 511 [2d Dept 1995]) (interpreting the notice of claim requirement under Executive Law § 296); Scopelliti v Town of New Castle (210 AD2d 308 [2d Dept 1994]) (interpreting the notice of claim requirement under Executive Law § 297 [9]); Caputo v Copiague Union Free School District (218 F Supp 3d 186 [ED NY, Nov. 4, 2016]) (interpreting the notice of claim requirement under Education Law § 3813 [2]), except for Keles v Yearwood (254 F Supp 3d 466 [ED NY 2017])(discussed below), also do not involve Education Law § 6224.