Attorney's failure to appear in Supreme Court for oral argument reviewed by the Appellate Division

In this appeal concerning seeking public records pursuant to New York State's Freedom of Information Law, the New York City Fire Department [NYFD], NYFD sought to have the Appellate Division vacate its default in appearing in Supreme Court for oral argument. 

The Appellate Division said FDNY was required to show it had a reasonable excuse for its default and a potentially meritorious opposition to the amended petition.

Citing HSBC Bank USA, N.A. v Hutchinson, 215 AD3d 645, the Appellate Division opined that "Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse". The court then opined that the ill health of the litigant's attorney is an acceptable excuse for a default and that FDNY demonstrated that its attorney failed to appear at oral argument due to illness, which was corroborated by medical documentation. 

The Appellate Division noted that:

1. FDNY's attorney had notified the petitioner's attorney and the Supreme Court of her illness several hours before the scheduled oral argument;

2. Petitioner had consented to an adjournment of the oral argument; and

3. FDNY's attorney reasonably believed that her appearance was not required.

Under these circumstances, the Appellate Division ruled that Supreme Court should have granted FDNY's motion to vacate its judgment and remitted the matter to the Supreme Court for a determination of the amended petition on the merits.

Click HERE to access the decision of the Appellate Division posted on the Internet.

Concerning courts consideration of an inference of unlawful discrimination advanced by a plaintiff to show that the employer subjected the plaintiff to disparate treatment

In an action the Plaintiff, who had been employed by the City University of New York [CCNY] as a peace officer on a CCNY campus, sought to recover damages for alleged employment discrimination on the basis of religion and national origin and for alleged unlawful retaliation.

Supreme Court granted the Employer's motion for summary judgment dismissing the complaint. The Appellate Division affirmed the Supreme Court's granting the Employer's motion. In so doing, the Appellate Division, citing Graham v Long Is. R.R., 230 F3d 34, noted that "To prevail on a summary judgment motion in an action alleging discrimination in violation of the New York State Human Rights Law [NYSHRL]:

1. An employer must demonstrate either a plaintiff's failure to establish every element of intentional discrimination, or, 

2. If the employer offered legitimate, nondiscriminatory reasons for the challenged actions, the plaintiff must raise a triable issue of fact as to whether the employer's explanations were pretextual.

In this instance, the court, with respect to the "employment discrimination cause of action", observed that the Employer argued the Plaintiff failed to satisfy the fourth element: that the discharge occurred under circumstances giving rise to an inference of unlawful discrimination. Addressing this "fourth element", the Appellate Division said an employer can demonstrate that the termination did not occur under circumstances giving rise to an inference of discrimination by providing a legitimate, nondiscriminatory reason for the termination, and "demonstrating the absence of a material issue of fact as to whether its reason for termination was merely pretextual."

Citing Forrest v Jewish Guild for the Blind, 3 NY3d at page 308, footnote 5, the Appellate Division opined that "[It] matters not whether the [employer's] stated reason for terminating plaintiff was a good reason, a bad reason, or a petty one. What matters is that the [employer's] stated reason for terminating plaintiff was nondiscriminatory".

In this instance the court concluded the Employer "met its prima facie burden by offering legitimate, nondiscriminatory reasons for the [Plaintiff's] termination and by demonstrating the absence of material issues of fact as to whether its explanations were pretextual". In contrast, "Plaintiff failed to raise a triable issue of fact regarding pretext for discrimination".

Accordingly, the Appellate Division held that "Supreme Court properly granted the [Employer's] motion for summary judgment dismissing the [Plaintiff's] complaint".

Click HERE to access the Appellate Division's decision posted on the Internet.

Denise M. Miranda confirmed as Commissioner of the New York State Division of Human Rights

On June 2, 2025, the New York State Division of Human Rights announced that Denise M. Miranda, Esq. was confirmed as Commissioner of the Division by the New York State Senate following her historic nomination by Governor Kathy Hochul. 

The Division's announcement noted:

"Commissioner Miranda becomes the first Afro-Latina to serve in this role at the Division, and her confirmation follows her service as the Acting Commissioner since March 2024. 

"Under the Commissioner’s leadership, the Division has launched ambitious efforts to overhaul the agency’s discrimination complaint intake and case management processes while also implementing vital organizational changes and operational improvements. 

"These essential upgrades will result in a bolder, more powerful, and more efficient Division that is prepared to protect the rights of all New Yorkers at a time when that mission has never been more critical.

"Commissioner Miranda was appointed by Governor Hochul in March 2024 to serve as the Acting Commissioner of the Division of Human Rights. 

"Prior to this, Commissioner Miranda served as the Executive Director of the New York State Justice Center for the Protection of People with Special Needs for seven years. She oversaw the agency’s operations, which included investigations into abuse and neglect, criminal prosecutions, and administrative disciplinary proceedings. Under her leadership, the Justice Center managed the care of over one million individuals, with a workforce of more than 425 employees and a $41 million operating budget. 

 

"For nearly 30 years, Commissioner Miranda has been actively engaged in the practice of law and focused the majority of her career on social justice issues and protecting the rights of vulnerable individuals. Beyond her professional accomplishments, she is deeply committed to community service and embodies the values of justice, inclusion, and strategic leadership."