Opinion
Index No. 507047/2023 Motion Seq No. 3
06-26-2024
CATHY ANN SILVERTHORN Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, and KEVIN BARWICK, Defendants.
Unpublished Opinion
At ail IAS Term, City Pail 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 26th day of June, 2024.
PRESENT: HON. GINA ABADI. J.S.C.
DECISION, 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 .............................. 25-27
Opposing Affidavits (Affirmations). ................................30-31
Reply Affidavits (Affirmations)........ . . . . . .................. ..........32
Upon a careful review of the entirety of the foregoing cited papers, the Decision, Order, and Judgment on this motion is as follows:
Defendants City of New York and New York City Fire Department (FDNY" and collectively with "FDNY." the "City defendants") move, pre-answer, for an order dismissing the entirety of the First Amended Complaint, dated June 26, 2023 ("FAC"), of plaintiff Cathy Ann Silverthorne ("plaintiff"), for failure to state a claim under CPLR § 3211(a) (7) as against them. Plaintiff opposes to the extent the City defendants seek dismissal of her first cause of action under the New York State Human Rights Law (Executive Law § 290 et seq.)]("NYSHRL") and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.) ("NYCHRL"), but does not oppose dismissal of her second (and the other) cause of action for defamation per se.
According to the Corporation Counsel (in footnote I of its Notice of Motion), the remaining defendant, Kevin Barwick. has not been served process in this action pursuant to CPLR § 306 and, accordingly, the instant motion does not encompass him. NYSCEF Doc No. 25.
See Plaintiffs Memorandum of Law in Opposition, dated May 22, 2024, at 2 ("Plaintiff withdraws her claim tor defamation...'') NYSCEF Doc No. 30.
Background
Plaintiff is (and, for the past ten years, has been) an emergency medical specialist or technician with the FDNY; FAC, ¶¶ 4, 8. Plaintiff is a Black female who has been assigned (at her request) to the FDNY's reasonable accommodation unit (the "Unit"), FAC, ¶¶ 4, 9. Plaintiff's immediate supervisor at the Unit is Captain Barwick who is a Caucasian male, FAC, ¶¶ 5. 9, According to the FAC, Barwick is, was, or has been "telling the [FDNY]'s employees working in the Unit that [plaintiff] is 'an angry Black Woman."' FAC, ¶ 11. In addition, Barwick. On one occasion, allegedly "accus[ed] [plaintiff] of being responsible for [the] missing EMS emergency equipment." F AC,¶ 12. Plaintiff, as a result, "felt forced to consider her eligibility [for] retirement." FAC, ¶ 14. Plaintiff s attempt to resolve the matter within the FDNY was unsuccessful because the FDNY offered her to work outside the Unit, which option was not acceptable to her. Plaintiff, to date, has not retired and remains working m the Unit. FAC, ¶ 16.
In March 2023, plaintiff commenced this action to recover (as relevant herein) "compensatory damages for emotional distress (i.e. mental anguish) as a proximate cause of the [d]efendants' [alleged] discrimination based on race and gender." FAC, First Cause of Action. ¶¶ 25-30. In lieu of an answer, the City defendants served a motion to dismiss (the prior motion), which was denied by Decision/Order, dated January 31,2024, for their failure to appear for the calendar call on the return date of the prior motion. NYSCEF Doc No. 15. The City defendants now move to vacate their default in appearing on the calendar call for the prior motion and, upon vacatur of such default, to dismiss this action as against them for failure to state a claim. On June 18, 2024, the Court reserved decision on the instant motion.
Discussion
As an initial matter, the City defendants' default for failure to appear for the calendar call on the prior motion is vacated in the Court's discretion. "A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious motion or opposition to the motion." Santiago v City of New York. 206 A.D.3d 948, 949 (2d Dept 2022), citing CPLR. § 5015(a)(1); see Kim v Xin Chen, 189 A.D.3d 1061,1062 (2d Dept 2020). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation of the default at issue." Kim v Xin Chen, 189 A.D.3d at 1062. Here, the pity defendants demonstrated a reasonable excuse for their default in appearing at the calendar call, and (for the reasons stated below) the prior motion is meritorious.
See Corporation Counsel's Opening Affirmation, dated March 29, 2024. NYSCEF Doc No. 26, ¶ 9.
This action must be dismissed as against the FDNY because, as a department of the City, it is not a separate legal entity amenable to being sued. See NY City Charter § 396; Matter of Carpenter v New York City Hous. Auth., 146 A.D.3d 674 (1st Dept 2017), lv denied 29 N.Y.3d 911 (2017); Khela v City of NY, 91 A.D.3d 912, 913 (2d Dept 2012); Barerra v City of NY. 47 Misc.3d 1028, 1030 (Sup Ct, Queens County 2015).
Accepting the tacts alleged in the FAC as true, and according plaintiff the benefit of even- possible favorable inference, the FAC fails to allege circumstances giving rise to an inference of discrimination ion the basis of race and/or gender. See Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 A.D.3d 706 (2d Dept 2023); Ayers v Bloomberg, L.P, 203 A.D.3d 872, 874 (2d) Dept 2022); Cahill v State, 139 A.D.3d 779, 781 (2d Dept 2016); Askin v Department of Educ. of City of NY, 110 A.D.3d 621. 622 (1st Dept 2013). "[S]tray derogatory remarks, Without more [as is the case here], do not constitute evidence of discrimination." Wecker v. City of NY, 134 A.D.3d 474, 475 (1st Dept 2015); see also Aykac v City of NY, 221 A.D.3d 494, 495 (1st Dept 2023) (the individual defendant's "few comments regarding plaintiff's weight and his 'malingering' . . . constitute petty' slights and trivial inconveniences"); 'Adolph v Hill-Kirby, 217 A.D.3d 436, 436 (1st Dept 2023) ('the few alleged remarks made by defendant ... are insufficient to state a claim for harassment on the basis of plaintiffs disability"); accord Thelwell v City of NY, 2015 WL 4545881, *10 (SDNY July 28, 2015) (absent evidence that the use of words "angry" or "abrasive" was racially charged, or that a racial epithet was used to describe plaintiff, her subjective interpretation of words as constituting a racially discriminatory stereotype was insufficient), qffd 33 Fed.Appx 561 (2d Cir 2018).
Compare Walker v Triborough Bridge & Turnel Auth., 220 A.D.3d 554, 555 (1st Dept 2023) ("Defendant Victor Muallem allegedly subjected [plaintiff] to verbal abuse, in the presence of co-workers, clients, opposing counsel and arbitrators on several occasions, and even struck her during an arbitration hearing while she was cross-examining a witness. Plaintiff alleges that this behavior stemmed from discriminatory animus, as Muallem directed it towards only plaintiff and other Black female employees,"); Kirby v Carlo's Bakery 42nd & 8th LLC, 212 A.D.3d 441, 442 (1st Dept .2023) ("Specifically, plaintiff, a Black woman, alleges that her supervisor, defendant John Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, 'Why did you call HR? Blacks .. . I should have never hired her.'").
Further, the vague and Ambiguous allegations underpinning the FAC - that plaintiff was called "an angry7 Black woman" (without specifying as to when, where, and how many times she was so called) and that she was once blamed for some missing EMS equipment: (again, without providing any .accompanying detail) - are insufficient to provide the City defendants with adequate notice of - nor, more fundamentally, are capable of establishing a sufficient basis for - her claims for racial/gender discrimination and hostile work environment. See Oluwo v Sutton, 206 A.D.3d 750, 753 (2d Dept 2022); Polite v Marquis, Marriot Hotel, 195 A.D.3d 965. 967 (2d Dept 2021); Mira v Harder (Evans), 177 A.D.3d 426, 426-427 (1st Dept 2019); Lent v City of NY, 2021 NY Slip Op 31805(D) (Sup Ct, NY County 2021), affd 209 A.D.3d 494 (1st Dept 2022), lv dismissed 39 N.Y.3d 1118 (2023).
See Belle v Zelmanowicz, 305 A.D.2d 272, 273 (1st Dept 2003) ("the allegations concerning the [racial] epithets do not show who did it, when and how often it occurred, how it affected plaintiffs ability to do his job and Whether he ever complained about if').
See CPLR § 3013 ("Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause pf action or defense.").
Accordingly, it is
ORDERED that the initial branch of the City defendants' motion which is for dismissal of the first cause of action in the First Amended Complaint for failure to state a claim under CPLR §3211 (a) (7), as against them, is granted; and it is further
ORDERED that the remaining branch of the City defendants' motion which is for dismissal of the second cause of action in the First Amended Complaint for failure to state a claim under CPLR § 3211 (a) (7). as against them, is granted without opposition; and it is further
ORDERED that the First Amended Complaint is dismissed in its entirety as against the City' defendants without costs or disbursements; and it is further
ORDERED that the action is severed and continued against the remaining defendant Kevin Barwick, the action (as severed) is transferred to the Non-City Part, and the caption is amended accordingly; and it is further
ORDERED that the Corporation Counsel is directed to electronically serve a copy of this Decision, Order, and Judgment with notice of entry on plaintiffs counsel and to electronically file an affidavit of service with the Kings County Clerk.
The foregoing constitutes the Decision, Order, and Judgment of this Court.