Balioni v City of New York

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Balioni v City of New York 2023 NY Slip Op 32415(U) July 13, 2023 Supreme Court, Kings County Docket Number: Index No. 523671/2022 Judge: Gina Abadi 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: KINGS COUNTY CLERK 07/17/2023 04:51 PM NYSCEF DOC. NO. 47 INDEX NO. 523671/2022 RECEIVED NYSCEF: 07/17/2023 At an IAS Term ity Part 7 of the Supreme Court of the tate of ew York, held in and for the County of Kings, at the Com1house thereof at 360 Adams St., Brooklyn, New York on the I 3th day of July 2023. PRESENT: HON. GINA ABADI , J.S .C. Ml HAEL L. BALIO I, Plaintiff, -againstTHE CITY OF NEW YORK, ET Index o. : 523671/2022 Motion Seq: _] ORDER AND JUDGMENT L. , Defendant. Recitation , as required by CPLR § 22 l 9(a), of the papers considered in the review of this motion : Paper Notice of Moti on/Cross Motion/Ord er to Show Cause and Affidav it (Affirmation ) Annexed ... ... ... ... ... .... ......... .. ... .. Oppo ing Affid avits (Affi1111 atio n ) ... .... ..... ......... ...... .... ... . Reply Affid avits (Affirmations) ..... . .... .... . . ................. .. .... Other ................................... .... ..... . ...... ..... ... . .... ... .. . 34-36, 38-42 44 46 Upon a careful review of the entirety of the foregoing cited papers, the Order and Judgment on this motion is as follow : Defendants City of New York and New York Police Department (collectively, the ''City), together wi th individual defendants Inspector Joe Haward Inspector William 1 ay lor, Lieutenant Thoma Re d Lieutenant Timothy Brovokos, and Deputy Inspector James King (collectively, the " individual defendants" and together with the City, "defendants") move, pre-answer for an order: (1) dismi ss ing the entirety of the verified complaint, dated August 16, 2022 (the 'complaint"), of plainti ff Michael L. Balioni [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 07/17/2023 04:51 PM NYSCEF DOC. NO. 47 INDEX NO. 523671/2022 RECEIVED NYSCEF: 07/17/2023 ('·plaintiff'), for failure to tate a claim under CPLR § 32 l l(a)(7); and (2) di smi s ing the portion of the complaint, insofar as it is based on the alleged acts/omission preceding Augustl6 2019 a time-barredund r CPLR§3211(a)(5). 1 Plaintiffoppoe. The branch of defendants' mo tion which is to dismiss the entirety of pla intiff complaint for failur to state a claim of action under CPLR § 32 I l ( a)(7) is granted. rom the four corners of plaintiffs complaint no factua l allegations are discern ed, which taken together manife t an actionable claim cognizable at law. The complaint fail to all ege (beyond its boilerplate perfuncto1y language) that the complained-of acts/omissions by one or more of the individual defendants (and vicariously by the City) (collectively the ' underlying acts/omission ") were motivated, in whole or in part, by the discriminatory animus toward: (1) either plaintiff s status as a family caregiver to his minor child, as well as a caregiver/helper/protector of hi s then opioid-addicted wife (the first and second cau es of action); and/or (2) his status as a disabled individual on account of his (medically controlled) depress ion (the third and fourth causes of action). See Kwong v City of New York, 204 AD3d 442, 445 ( 1st Dept 2022), Iv dismissed 38 NY3d 1 I 74 (2022); Lent v City of New York, 202 1 NY Slip Op 3 I 805(U) (S up Ct NY County 2021 ), ajfd 209 AD3d 494 (I st Dept 2022) lv dismissed 39 Y3d 1118 (2023 ); Matter of Martinez v City of New York 206 AD3d 532 533 ( 1st Dept 2022). Lik ewise the complaint fails to all ege (aga in, beyond its boilerplate perfunctory language) that th e underlying acts/omi ssions objectively created ( or constituted) in whole 1 The Court has rearranged the branches of defend ants ' motion for ease of di scuss ion. 2 [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 07/17/2023 04:51 PM NYSCEF DOC. NO. 47 INDEX NO. 523671/2022 RECEIVED NYSCEF: 07/17/2023 or in part: (1) either a form of hosti le work environment for plaintiff; and/or (2) a form of unlawful retaliation toward plaintiff (rather than that of command di cipline for hi admitted transgressions or of otherwise permissible conduct, such as the in-house check of his mental fitness as a police officer). The complaint's recital of plaintiffs direct interactions wi.th the individual defendants are bereft of any factual allegations that would show harassing conduct beyond 'petty slights and trivial inconveniences,' such as being yelled at or ignored. W ith respect lo plaintiff claims of differential treatment in the form of undesirable work assignmen t and xces iv discipline for minor infractions the complaint fails to allege (once again , beyond it boilerplate perfunctory language) any facts indicating that his prot cted statu (e ither a a caregiver or as a disabled individual, or both) wa a motivating factor for the individual defendant vNewYorkCityHous.Auth. , 106 underlying acts/omi sion . See Chin D3d443 , 445(1 tDept2013) lvdenied22NY3d86l (2014). Even assuming arguendo that the underlying act /omis ions did amount to more than petty slights and trivial inconvenience the complaint fails to al lege a discriminatory animus suffic ient to support plaintiffs hostile work environm nt and unlawful reta li ation claims (the fifth through eighth cau e of action). See Pelepelin v City of New York, 189 AD3d 450, 451-452 (1st Dept 2020)· Askin v Department ofEduc. a/City ofNew York 110 AD3d 621,622 (1st Dept 2013). In light of the foregoing, the remaining branch of defi ndants motion to di miss is rendered academic. 3 [* 3] 3 of 4 INDEX NO. 523671/2022 FILED: KINGS COUNTY CLERK 07/17/2023 04:51 PM NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 07/17/2023 Accordin gly, it is ORDERED AND ADJUDGED that the branch of defendants ' motion for dismissal ofthi.s action for failure to state a claim under CPLR § 3211 (a)(7) i granted, and the verified complaint i dismissed in it entirety a again tall defendants, without co t or disbursements; and it is further ORDERED AND ADJUDGED that the remaining branch of defendant ' motion for dismissal of the portion of this action a timed-barred under CPLR § 321 l(a)(S) is denied as academic; and it is further ORDERED that the Corporation Coun el hall electronically serve a copy of this Order and Judgment with notice of entry on plaintiff coun el and ha ll electronically file an affidavit of said service with the King County Clerk. The foregoing constitute the Order and Judgment of thi Court. T R FORTHWITH HO 4 [* 4] 4 of 4

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