Opinion
1105 Index No. 154096/21 Case No. 2022–03686
11-28-2023
Susan ROSENTHAL, Plaintiff–Appellant, v. ROOSEVELT ISLAND OPERATING CORPORATION et al., Defendants–Respondents.
Storch Byrne LLP, New York (Steven G. Storch of counsel), for appellant. Busra Cundioglu, PLLC, New York (Busra Cundioglu of counsel), and Melick & Porter LLP, New York (Holly G. Rogers of the bar of the State of Connecticut, admitted pro hac vice, of counsel), for Roosevelt Island Operating Corporation, respondent. Letitia James, Attorney General, New York (Stephen J. Yanni of counsel), for State of New York, Joseph Rabito, Kumiki Gibson, Simonida Subotic, Ruthanne Visnauskas, Robert F. Mujica, Conway Ekpo, Jeffrey Escobar, David E. Kapell, David Kraut, Howard Polivy and Michael Shinozaki, respondents.
Storch Byrne LLP, New York (Steven G. Storch of counsel), for appellant.
Busra Cundioglu, PLLC, New York (Busra Cundioglu of counsel), and Melick & Porter LLP, New York (Holly G. Rogers of the bar of the State of Connecticut, admitted pro hac vice, of counsel), for Roosevelt Island Operating Corporation, respondent.
Letitia James, Attorney General, New York (Stephen J. Yanni of counsel), for State of New York, Joseph Rabito, Kumiki Gibson, Simonida Subotic, Ruthanne Visnauskas, Robert F. Mujica, Conway Ekpo, Jeffrey Escobar, David E. Kapell, David Kraut, Howard Polivy and Michael Shinozaki, respondents.
Manzanet–Daniels, J.P., Friedman, Gonza´lez, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about July 27, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss plaintiff's claims alleging unlawful discrimination, unanimously affirmed, without costs.
Plaintiff is collaterally estopped from asserting claims of discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (State HRL), and the New York City Human Rights Law (City HRL). In a prior article 78 proceeding, plaintiff challenged the termination of her employment, making allegations of race discrimination identical to those underlying the Title VII, State HRL, and City HRL claims in this action (see Matter of Khan v. New York City Health & Hosps. Corp., 144 A.D.3d 600, 602, 43 N.Y.S.3d 271 [1st Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1591009 [2017] ). The article 78 court denied the petition and dismissed the proceeding, finding that defendant Roosevelt Island Operating Corporation had a rational basis for terminating plaintiff's employment. This Court affirmed the dismissal, determining that "the findings of [defendants’] investigation constitute legitimate nondiscriminatory reasons for [plaintiff's] termination, and serve to defeat the claims of discrimination and racial animus raised in the petition" ( Matter of Rosenthal v. Roosevelt Is. Operating Corp., 209 A.D.3d 598, 598, 177 N.Y.S.3d 549 [1st Dept. 2022] ). Thus, not only has plaintiff already had a full and fair opportunity to litigate the discrimination claims in the prior article 78 proceeding, but those claims were necessarily decided (see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 350, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999] ; Matter of Khan, 144 A.D.3d at 602, 43 N.Y.S.3d 271 ; Constantine v. Teachers Coll., 93 A.D.3d 493, 494, 940 N.Y.S.2d 75 [1st Dept. 2012] ).
Plaintiff's request for a name-clearing hearing is unpreserved for our review, as she failed to request such a hearing in her article 78 petition, before Supreme Court, or in opposition to defendants’ motion to dismiss (see Matter of Ragone v. Board of Educ. of City of N.Y., 194 A.D.2d 731, 732, 600 N.Y.S.2d 89 [2d Dept. 1993] ).