Clendenin v VOA of Am. - Greater N.Y. Inc.

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Clendenin v VOA of Am. - Greater N.Y. Inc. 2022 NY Slip Op 34561(U) February 22, 2022 Supreme Court, Bronx County Docket Number: Index No. 33475/2018E Judge: Kim Adair Wilson 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: BRONX COUNTY CLERK 03/15/2022 10:54 AM NYSCEF DOC. NO. 24 INDEX NO. 33475/2018E RECEIVED NYSCEF: 03/15/2022 Page 1 of 3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, NEW YORK: Part IA-12 -------- ---------------------------------------------------------X MURRAY CLENDENIN, DECISION AND ORDER Index No. 33475/2018E Plaintiff, Motion Seq. #001 -againstVOA OF AMERICA - GREATER NEW YORK INC., d/b/a VOLUNTEERS OF AMERICA, SANFORD LEWIS, and BRIAN BARDELL, Defendants. -------- ---------------------------------------------------------X HON. KIM ADAIR WILSON J.S.C. Kim Adair Wilson, J.: "NOTICE OF MOTION," dated and filed November 3, 2021, respectively, by Richard S. Fin el and Jessica C. Moller, Esqs. (Bond, Schoeneck & King, PLLC), attorneys for defenda nts, seeks an "order pursuant to CPLR 3212 granting Defendants motion for summa ry judgment and granting such other relief, including costs, as this Court deems just and proper." Submitted in opposition to defendants' motion is "PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT," dated and filed December 3, 2021, respectively, by Ishan Dave, Esq. (Derek Smith Law Group, PLLC), attorney for plaintiff. In return, defendants' attorneys submit "DEFENDANTS' REPLY MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT," dated and filed December 9, 2021, respectively. Plaintiff Clendenin commenced the instant action, asserting, in substance, that he was employed by the defendants as Project Manager of the Wales Avenue Housing LP and Creston Avenue Resident LP ("subject premises"), a "low-income housing tax credit devel op ment'' and "a permanent supportive housing facility that provides behavioral health services to individuals with mental illness", respectively, from January 2017 to May 2018. During that time, he complained of the uninhabitable and dangerous conditions in and about the subject premises and how they created a substantial risk to public health and safety. As a result, plaintiff posits that, in May 2018, the defendants, in retaliation, terminated him from his employment, which is a violation of New York Labor Law§ 740. Now, in the instant action, defendants VOA-Greater New York Inc., d/b/a Volunteers of Am erica, Sandford Lewis, and Brian Bardell ("VOA, Lewis and Bardell") move for CPLR 3212 s ummary judgment dismissal of plaintiffs complaint on the basis that 1) plaintiffs claim fa ils because he cannot identify or prove an actual violation of law by defendants; 2) plaintiff has not identified a violation of law by defendants that presented a specific danger to the public health or safety; 3) the defendants are entitled to summary judgment; and 4) [* 1] 2 of 4 FILED: BRONX COUNTY CLERK 03/15/2022 10:54 AM NYSCEF DOC. NO. 24 INDEX NO. 33475/2018E RECEIVED NYSCEF: 03/15/2022 Page 2 of 3 furthe r discovery will not lead to relevant evidence. Defendants' counsel further asserts, by affirm ation, that plaintiff, in his response to defendants' interrogatories, did not identify a law, rule or regulation allegedly violated by defendants. In support of their motion, defendants VOA, Lewis and Bardell submit the respective affidavits of Sean Prendergast (Vice-President of Human Resources and Chief Compliance Officer for VOA-GNY) and Paul Kress (Vice-President of Real Estate for VOA-GNY). Mr. Prend e rgast confirms plaintiffs employment and plaintiffs receipt of VOA's Employee Hand book. He also states that defendant Lewis was a Program Director at the Creston Avenu e Residence and Defendant Bardell served as Assistant Vice President of NYC Specialized Housing and Veterans Initiatives; and only VOA's President/CEO, VicePresid ents and Assistant Vice-Presidents possessed the authority to hire or fire employees. Mr. Kress attests that prior to his current position, he served as Vice-President of Strategic Initiatives from July 1, 2015 to June 30, 2020. He hired Mr. Clendenin and subsequently terminated him for "performance reasons" and stated same in an annexed "Corrective Action Memo randum." In opposition, plaintiff Clendenin submits that he was terminated because he informed the defendants on different occasions about the uninhabitable premises and unsta ble and violent tenants. He complained of rapes and physical assaults between tenants and the dangers posed to the physical safety of the staff and the public at large and defen dants failed to take any action or preventative measures. Moreover, plaintiffs counsel states that the defendants' motion is premature. On November 14, 2019, the Honorable Laura Douglas set forth discovery deadlines. Between September 27, 2021 and October 11, 2021, he and defendants' counsel were involved in e-mail exchanges attempting to schedule depos itions of the plaintiff, Ms. Lewis and Mr. Bardell. Plaintiffs counsel followed up on October 14, 2021 and October 19, 2021. In fact, plaintiffs counsel contends that they "agreed to complete discovery prior to contacting the court for an updated scheduling order." On October 19, 2021, however, defendants' counsel informed plaintiffs counsel that they are not producing defendants Lewis and Bardell for depositions. DISCUSSION It is well settled that summary judgment is a drastic remedy which can only be granted when it is clear that there are no triable issues of fact (Middle Village Associates v Pergament Home Centers, Inc., 184 Misc2d 552 [2000], quoting Alvarez v Prospect Hospital, 68 NY 2d 320 [1986] or where the issue is even debatable (Stone v Goodson, 200 NYS2d 627 [1960]). A party, however, cannot avoid summary judgment based on speculation that the depositions of parties may uncover something (Pane v Cisilino, 144 AD3d 567 [1 st Dept 2016] ; W&W Glass Systems, Inc. v Admiral Insurance Company, 91 AD3d 530 [1 st Dept 2012]). [* 2] 3 of 4 FILED: BRONX COUNTY CLERK 03/15/2022 10:54 AM NYSCEF DOC. NO. 24 INDEX NO. 33475/2018E RECEIVED NYSCEF: 03/15/2022 Page 3 of 3 An evid entiary basis for his or her suggestion that discovery may lead to relevant evidence must e presented (Progressive Northeastern Insurance Company v Penn-Star Insurance Company, 89 AD3d 547 [1 st Dept 2011] citing Bailey v New York City Tr. Auth., 270 AD2d 156 [1 st Dept 2000]). Here, this Court determines t~at the deposition of the parties may lead to releva t evidence. Significantly, Mr. Kress states, in his Corrective Action Memorandum that plaintiff's termination, in part, was based upon defendant Bardell's feedback. Upon review and the analysis of statutory authority, relevant case law, the papers submi tted and the record, this Court determines that the defendants' motion is premature. The Honorable Laura Douglas issued Discovery Orders; and the parties engaged in an email exchange to schedule depositions as well as additional discovery. Notwithstanding, the defendants filed the instant motion. Accordingly, the defendants' motion for summary judgment is DENIED as stated herein and either party, upon completion of discovery, may move for the same relief. The movant is directed to serve a copy of this Order with Notice of Entry, upon the parties within thirty (30) days of entry of this Order and file proof of service with the Court. This constitutes the Decision and Order of this Court. Dated : February 22, 2022 Bronx, New York Hon. ~ [* 3] 4 of 4 ir Wilson, J.S.C.

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