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November 12, 2019

Supreme Court's granting Defendant's pre-answer, pre-discovery motion dismissing Plaintiff's CPLR Article 78 action alleging unlawful discrimination reversed "on the law"


An educator [Plaintiff] filed a CPLR Article 78 petition alleging that he had suffered various act of unlawful discrimination as the result of actions taken against him by the school principal [Principal], a Caucasian woman, because of his Haitian origin and her belief that he is a voodoo priest,* including the Principal's falsely accusing him of misconduct that subjected him to an Office of Special Investigations investigation, during which Principal falsely accused Plaintiff of being a voodoo priest.

Plaintiff also asserted that Principal assigned him to an unsanitary basement office upon his return from a temporary administrative office assignment, contending this was done maliciously in disregard of his seniority even though there were other available offices and that, ultimately, Principal demoted Plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

The defendant in the action, the New York City Department of Education [DOE] submitted a pre-answer, pre-discovery motion seeking a court order dismissing Plaintiff's complaint. Supreme Court granted DOE's motion and denied Plaintiff's cross motion for leave to file a second amended complaint. 

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," denying DOE's motion to dismiss Plaintiffs complaint and granting Plaintiff's cross motion to amend his complaint.

The Appellate Division explained:

1. Plaintiff's  complaint "states a causes of action for unlawful discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws;" and

2. Plaintiff's allegations were sufficient to give DOE "fair notice" of the nature of Plaintiff's claims and their grounds, which is all that is required "to survive at the pleading stage."

As to DOE's contention that Plaintiff's alleged certain acts by Principal occurred more than one year before he commenced this action and it is thus untimely, the Appellate Division, citing Education Law §3813[2-b], opined that the court could not state that, as a matter of law, "that these acts, if proven, were not part of a single continuing pattern of unlawful conduct extending into the one-year period immediately preceding the filing of the complaint" and that, in any event, Plaintiff "is not precluded from using the prior acts as background evidence in support of a timely claim."

DOE, in support of its motion to dismiss Plaintiff's complaint, also contended that "there were legitimate, nondiscriminatory reasons for the actions taken against Plaintiff." The Appellate Division, however, said that this argument advanced by DOE merely stated a potential rebuttal argument to a prima facie case of unlawful employment discrimination, "which is misplaced at this early procedural juncture." 

Under the circumstances, said the court, Plaintiff's cross motion for leave to amend his complaint should have been granted by Supreme Court.

* Plaintiff alleged that he studied voodoo but does not practice voodoo.

The decision is posted on the Internet at:


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