Opinion
2019–13814 Index No. 2260/19
06-08-2022
Muffy OLUWO, appellant, v. Renee SUTTON, et al., respondents.
Muffy Oluwo, Brooklyn, NY, appellant pro se. Buchanan Ingersoll & Rooney PC, New York, NY (Ivan D. Smith and Maureen M. Stampp of counsel), for respondents.
Muffy Oluwo, Brooklyn, NY, appellant pro se.
Buchanan Ingersoll & Rooney PC, New York, NY (Ivan D. Smith and Maureen M. Stampp of counsel), for respondents.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for employment discrimination on the basis of national origin in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated October 7, 2019. The order granted the motion of the defendant La Peninsula Community Organization, Inc., pursuant to CPLR 3211(a)(7) to dismiss the complaint in its entirety.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendant La Peninsula Community Organization, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination based on disparate treatment in violation of the New York State Human Rights Law and the New York City Human Rights Law, and based on a hostile work environment in violation of the New York City Human Rights Law, and the cause of action alleging aiding and abetting employment discrimination, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff, who is from Nigeria, commenced this action against the defendant La Peninsula Community Organization, Inc. (hereinafter La Peninsula), and its executive director, the defendant Renee Sutton, inter alia, to recover damages for employment discrimination on the basis of national origin in violation of the New York State Human Rights Law ( Executive Law § 290 et seq. [hereinafter NYSHRL]) and the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107 [hereinafter NYCHRL]). The complaint alleged discrimination based on disparate treatment and a hostile work environment, and further alleged that Sutton aided and abetted La Peninsula's discrimination. La Peninsula moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. In an order dated October 7, 2019, the Supreme Court granted the motion. The plaintiff appeals.
" ‘When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Polite v. Marquis Marriot Hotel, 195 A.D.3d 965, 966–967, 146 N.Y.S.3d 524, quoting Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action. ‘Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss’ " ( Kaplan v. New York City Dept. of Health & Mental Hygiene, 142 A.D.3d 1050, 1051, 38 N.Y.S.3d 563, quoting Lieberman v. Green, 139 A.D.3d 815, 816, 32 N.Y.S.3d 239 ; see Twinkle Play Corp. v. Alimar Props., Ltd., 186 A.D.3d 1447, 1448, 128 N.Y.S.3d 848 ).
Here, the Supreme Court should have denied those branches of La Peninsula's motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of national origin in violation of the NYSHRL and the NYCHRL based on disparate treatment (see Executive Law § 296[1][a] ; Administrative Code § 8–107[1][a]; Golston–Green v. City of New York, 184 A.D.3d 24, 34, 123 N.Y.S.3d 656 ). Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), the complaint sufficiently alleged that an adverse employment action occurred under circumstances giving rise to an inference of discrimination based on the plaintiff's national origin (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see also Diaz v. Minhas Constr. Corp., LLC, 188 A.D.3d 812, 814, 136 N.Y.S.3d 145 ; cf. Morales v. Triborough Podiatry, P.C., 184 A.D.3d 754, 755, 124 N.Y.S.3d 203 ; Torres v. Louzoun Enters., Inc., 105 A.D.3d 945, 945, 963 N.Y.S.2d 682 ).
Moreover, the plaintiff alleged facts sufficient to state a cause of action against his supervisor, Sutton, pursuant to Executive Law § 296(6) and Administrative Code § 8–107(6), which impose liability upon individuals who aid and abet an employer that commits employment discrimination (see Mitchell v. TAM Equities, Inc., 27 A.D.3d 703, 707, 812 N.Y.S.2d 611 ; see also Ananiadis v. Mediterranean Gyros Prods., Inc., 151 A.D.3d 915, 917, 54 N.Y.S.3d 155 ). Accordingly, the Supreme Court should have denied that branch of La Peninsula's motion which was to dismiss that cause of action.
The Supreme Court also should have denied that branch of La Peninsula's motion which was to dismiss the cause of action alleging employment discrimination on the basis of national origin in violation of the NYCHRL based on a hostile work environment. The plaintiff sufficiently alleged that he "was treated ‘less well than other employees’ because of the relevant characteristic" ( Bilitch v. New York City Health & Hosps. Corp., 194 A.D.3d 999, 1003, 148 N.Y.S.3d 238, quoting Reichman v. City of New York, 179 A.D.3d 1115, 1118, 117 N.Y.S.3d 280 ; see Golston–Green v. City of New York, 184 A.D.3d at 42, 123 N.Y.S.3d 656 ; see also Kassapian v. City of New York, 155 A.D.3d 851, 853, 65 N.Y.S.3d 562 ).
However, the plaintiff failed to state a cause of action to recover damages for employment discrimination in violation of the NYSHRL based on a hostile work environment. The allegations in the complaint "fell short of alleging that the workplace was permeated with discriminatory intimidation, ridicule, and insult ... that [was] sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment" ( Pall v. Roosevelt Union Free Sch. Dist., 144 A.D.3d 1004, 1005, 42 N.Y.S.3d 215 [internal quotation marks omitted]; see Reilly v. First Niagara Bank, N.A., 173 A.D.3d 1082, 1082, 100 N.Y.S.3d 910 ; see also Golston–Green v. City of New York, 184 A.D.3d at 41 n. 3, 123 N.Y.S.3d 656 ). Accordingly, the Supreme Court properly granted that branch of La Peninsula's motion which was pursuant to CPLR 3211(a)(7) to dismiss that cause of action.
The plaintiff's remaining contentions are without merit.
DILLON, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.