Opinion
Index No. 523671/2022 Motion Seq. No. 3
07-13-2023
MICHAEL L. BALIONI, Plaintiff. v. THE CITY OF NEW YORK, ET AL., Defendant.
Unpublished Opinion
PRESENT: HON. GINA ABADI, J.S.C.
ORDER AND JUDGMENT
GINA ABADI, JUDGE.
Recitation, as required by CPLR § 2219(a). of the papers considered in the review of this motion:
Papers
NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed........................
34-36, 38-42
Opposing Affidavits (Affirmations)...................................
44
Reply Affidavits (Affirmations).......................................
46
Other...................................................................... ........................
Upon a careful review of the entirety of the foregoing cited papers, the Order and Judgment on this motion is as follows:
Defendants City of New York and New York Police Department (collectively, the "City), together with individual defendants Inspector Joe Haward, Inspector William Taylor. Lieutenant Thomas Reed. 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) dismissing the entirety of the verified complaint, dated August 16. 2022 (the "complaint"), of plaintiff Michael L. Balioni ("plaintiff"), for failure to state a claim under CPLR § 3211(a)(7); and (2) dismissing the portion of the complaint, insofar as it is based on the alleged acts/omissions preceding August 16, 2019. as time-barred under CPLR § 3211(a)(5). Plaintiff opposes.
The Court has rearranged the branches of defendants' motion for ease of discussion.
The branch of defendants' motion which is to dismiss the entirety of plaintiffs complaint for failure to state a claim of action under CPLR § 3211(a)(7) is granted. From the four corners of plaintiffs complaint, no factual allegations are discerned, which taken together, manifest an actionable claim cognizable at law. The complaint fails to allege (beyond its boilerplate perfunctory language) that the complained-of acts/omissions by one or more of the individual defendants (and vicariously by the City) (collectively, the "underlying acts/omissions") were motivated, in whole or in part, by the discriminatory animus toward: (1) either plaintiffs status as a family caregiver to his minor child, as well as a caregiver/helper/protector of his then opioid-addicted wife (the first and second causes of action); and/or (2) his status as a disabled individual on account of his (medically controlled) depression (the third and fourth causes of action). See Kwong v. City of New York, 204 A.D.3d 442, 445 (I st Dept 2022). Iv dismissed 38 N.Y.3d 1174 (2022); Lent v. City of New York. 2021 NY Slip Op 318O5(U) (Sup Ct. NY County 2021). aff'd 209 A.D.3d 494 (1st Dept 2022). Iv dismissed 39 N.Y.3d 1118 (2023); Matter of Martinez v. City of New York. 206 A.D.3d 532, 533 (1st Dept 2022).
Likewise, the complaint fails to allege (again, beyond its boilerplate perfunctory language) that the underlying acts/omissions objectively created (or constituted), in whole or in part: (1) either a form of hostile work environment for plaintiff: and/or (2) a form of unlawful retaliation toward plaintiff (rather than that of command discipline for his 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 with 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. With respect to plaintiffs claims of differential treatment in the form of undesirable work assignments and excessive discipline for minor infractions, the complaint fails to allege (once again, beyond its boilerplate perfunctory language) any facts indicating that his protected status (either as a caregiver or as a disabled individual, or both) was a motivating factor for the individual defendants' underlying acts/omissions. See Chin v. New York City Hous. Auth., 106 A.D.3d 443, 445 (1st Dept 2013). Iv denied 22 N.Y.3d 861 (2014). Even assuming arguendo that the underlying acts/omissions did amount to more than petty slights and trivial inconveniences, the complaint fails to allege a discriminatory animus sufficient to support plaintiffs hostile work environment and unlawful retaliation claims (the fifth through eighth causes of action). See Pelepelin v. City of New York, 189 A.D.3d 450.451 -452 (1 st Dept 2020): Askin v. Department of Educ. of City of New York. 110 A.D.3d 621,622 (1 st Dept 2013).
In light of the foregoing, the remaining branch of defendants' motion to dismiss is rendered academic.
Accordingly, it is
ORDERED AND ADJUDGED that the branch of defendants' motion for dismissal of this action for failure to state a claim under CPLR § 3211(a)(7) is granted, and the verified complaint is dismissed in its entirety as against all defendants, without costs or disbursements; and it is further
ORDERED AND ADJUDGED that the remaining branch of defendants' motion for dismissal of the portion of this action as timed-barred under CPLR § 3211(a)(5) is denied as academic, and it is further
ORDERED that the Corporation Counsel shall electronically serve a copy of this Order and Judgment with notice of entry on plaintiffs counsel and shall electronically file an affidavit of said service with the Kings County Clerk.
The foregoing constitutes the Order and Judgment of this Court.