Absent a constitutional, statutory, or public policy prohibiting the arbitration of a grievance, "public policy in New York favors arbitral resolution of public sector labor disputes"

The question of the scope of the substantive provisions of a collective bargaining agreement is a matter of contract interpretation and application reserved for the arbitrator.

 

Matter of City of New Rochelle v Uniformed Fire Fighters Assn., Inc.

2022 NY Slip Op 03722

Decided on June 8, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 8, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
PAUL WOOTEN, JJ.

2019-12502
(Index No. 54086/19)

[*1]In the Matter of City of New Rochelle, respondent,

v

Uniformed Fire Fighters Association, Inc., Local 273, I.A.F.F., appellant.

Archer, Byington, Glennon & Levine, LLP, Tarrytown, NY (Richard S. Corenthal and Paul K. Brown of counsel), for appellant.

Coughlin & Gerhart, LLP, Binghamton, NY (Paul J. Sweeney of counsel), for respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, Uniformed Fire Fighters Association, Inc., Local 273, I.A.F.F. appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2019. The order granted the petition to permanently stay arbitration.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The City of New Rochelle and the Uniformed Fire Fighters Association, Inc., Local 273, I.A.F.F. (hereinafter the union) are parties to a collective bargaining agreement (hereinafter the CBA). In January 2019, the union filed a grievance alleging, inter alia, that the City was in violation of the CBA and the negotiated General Municipal Law § 207-a policy by failing to adhere to the required procedures in processing a claim by one of the union's members for General Municipal Law § 207-a benefits. After the grievance was denied, and upon exhausting its internal grievance remedies, the union demanded arbitration. The City thereafter commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration. By order dated September 30, 2019, the Supreme Court granted the petition. The union appeals.

"Public policy in New York favors arbitral resolution of public sector labor disputes" (Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 AD3d 1049, 1050 [internal quotation marks omitted]; see Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465, 470). "However, a dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test" (Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 AD3d at 1050). In determining whether a grievance is arbitrable, a court must "'first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance,'" and if there is no prohibition against arbitration, the court must "'then examine the CBA to determine if the parties [*2]have agreed to arbitrate the dispute at issue'" (Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d 1197, 1198, quoting Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278). Where, as here, the relevant arbitration provision of the CBA is broad, a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143; see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 187 AD3d 900, 901, lv granted 37 NY3d 910; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, 618). "If there is none, the issue, as a matter of law, is not arbitrable. If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them" (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at 143).

Here, the Supreme Court erroneously determined that the union's grievance was not arbitrable. It is undisputed that there is no constitutional, statutory, or public policy provision prohibiting the arbitration of the dispute at issue in this matter. Moreover, given the breadth of the arbitration clause in this case, the dispute regarding the City's processing of claims for General Municipal Law § 207-a benefits bore a reasonable relationship to the general subject matter of the CBA, since Article 10 of the CBA expressly refers to the negotiated policy for the provision of such benefits (see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 187 AD3d at 902; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d at 618). "[T]he question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator" (Matter of Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 161 AD3d 1086, 1089; see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 187 AD3d at 902).

Accordingly, the Supreme Court should have denied the City's petition to permanently stay arbitration and dismissed the proceeding.

The City's remaining contentions are without merit.

CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

Preventing a judgment that is unreviewable for mootness from spawning any legal consequences or precedent

The executive orders challenged in this action had expired and the statutory scheme that permitted the Governor to issue the emergency guidelines upon which the Department of Health and the Department of Education had relied on in promulgating guidance was replaced. Thus, the parties correctly concede that this appeal is moot.

 

Matter of Hensley v Williamsville Cent. Sch. Dist.

2022 NY Slip Op 03655

Decided on June 3, 2022

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, JJ.

516 CA 21-00840

[*1]IN THE MATTER OF DANA HENSLEY, ON BEHALF OF HER MINOR CHILDREN AND ALL OTHERS SIMILARLY SITUATED, ET AL., PETITIONERS-PLAINTIFFS-RESPONDENTS,

v

WILLIAMSVILLE CENTRAL SCHOOL DISTRICT, ET AL., RESPONDENTS-DEFENDANTS, ANDREW M. CUOMO, GOVERNOR OF NEW YORK, NEW YORK STATE DEPARTMENT OF HEALTH AND NEW YORK STATE DEPARTMENT OF EDUCATION, RESPONDENTS-DEFENDANTS-APPELLANTS. (PROCEEDING/ACTION NO. 1.)



IN THE MATTER OF ROBERT DINERO, ON BEHALF OF HIS MINOR CHILDREN AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS-PLAINTIFFS-RESPONDENTS,

v

ORCHARD PARK CENTRAL SCHOOL DISTRICT, ET AL., RESPONDENTS-DEFENDANTS, ANDREW M. CUOMO, GOVERNOR OF NEW YORK, NEW YORK STATE DEPARTMENT OF HEALTH AND NEW YORK STATE DEPARTMENT OF EDUCATION, RESPONDENTS-DEFENDANTS-APPELLANTS. (PROCEEDING/ACTION NO. 2.)

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (BEEZLY J. KIERNAN OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-APPELLANTS.

LAW OFFICE OF TODD ALDINGER, ESQ., BUFFALO (TODD ALDINGER OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-RESPONDENTS.

 

Appeal from an amended judgment (denominated amended order) of the Supreme Court, Erie County (Emilio Colaiacovo, J.), entered May 20, 2021 in CPLR article 78 proceedings and declaratory judgment actions. The amended judgment, inter alia, declared invalid certain COVID-19 pandemic-related guidance.

It is hereby ORDERED that said appeal is unanimously dismissed without costs and the amended judgment is vacated.

Memorandum: Petitioners-plaintiffs (petitioners) commenced these hybrid CPLR article 78 proceedings and declaratory judgment actions with nearly identical petitions-complaints (petitions) challenging COVID-19 pandemic-related guidance issued by respondents-defendants New York State Department of Health (DoH) and New York State Department of Education (DoE), pursuant to continuing executive orders signed by the Governor (collectively, respondents). Respondents appeal from an amended judgment which, among other things, granted judgment in favor of petitioners on the sixth cause of action in both petitions and declared that the guidance was arbitrary and capricious insofar as it placed different social [*2]distancing restrictions on elementary and secondary schools, and insofar as it used county-wide metrics to determine whether those restrictions apply to the school districts at issue.

After the amended judgment was issued, the guidance challenged by petitioners was withdrawn by respondents, the executive orders upon which the guidance was based expired, and the statutory scheme that permitted the Governor to issue the emergency guidelines upon which the DoH and DoE relied in promulgating that guidance was replaced. Thus, the parties correctly concede that this appeal is moot (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017 [2003]). Contrary to respondents' contention, the issue here is not likely to recur (see generally id. at 811-812; People v Rikers Is. Corr. Facility Warden, 112 AD3d 1350, 1351 [4th Dept 2013], lv denied 22 NY3d 864 [2014]), and it "is not of the type that typically evades review" (Wisholek v Douglas, 97 NY2d 740, 742 [2002]). Therefore, the exception to the mootness doctrine does not apply (see Matter of Pharaohs GC, Inc. v New York State Liq. Auth., 197 AD3d 1010, 1011 [4th Dept 2021]; Matter of Sportsmen's Tavern LLC v New York State Liq. Auth., 195 AD3d 1557, 1558 [4th Dept 2021]; cf. generally Coleman v Daines, 19 NY3d 1087, 1090 [2012]).

Finally, " 'in order to prevent [the amended] judgment which is unreviewable for mootness from spawning any legal consequences or precedent,' " we vacate the amended judgment (Matter of Thrall v CNY Centro, Inc., 89 AD3d 1449, 1451 [4th Dept 2011], lv dismissed 19 NY3d 898 [2012], quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 718 [1980]; see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811-812 [2d Dept 2008]; see also Saratoga County Chamber of Commerce, 100 NY2d at 812).

Entered: June 3, 2022

Ann Dillon Flynn

Clerk of the Court

Audits and reports issued by the New York State Comptroller during the week ending June 10, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending June 10, 2022:

Click on the text highlighted in colorto access the complete audit or report.

State and New York City Audits

Department of Civil Service: Payments by Beacon Health Options for Mental Health and Substance Abuse Services for Ineligible Members (2021-S-18)

The New York State Health Insurance Program (NYSHIP), administered by Civil Service, provides health insurance coverage to over 1.2 million active and retired state, local government, and school district employees, and their dependents. The Empire Plan is the primary health insurance plan for NYSHIP, serving about 1.1 million members. Civil Service contracts with Beacon Health Options (Beacon) to administer the Mental Health Substance Abuse program for the Empire Plan. Auditors determined Beacon paid over $3.21 million on behalf of members who were not eligible for Empire Plan coverage.

 

Department of Environmental Conservation: Compliance With the Sewage Pollution Right to Know Act (Act) and Monitoring and Enforcement of State Pollutant Discharge Elimination System Permit Requirements Report (Follow-Up) (2022-F-1)

An audit issued in October 2020 found DEC had established procedures to help ensure that applicable entities comply with the Act. However, the audit identified many publicly owned sewer systems that were not registered with a state alert program and were not reporting overflow events. DEC had also not followed up with potentially non-compliant facilities or verified whether events were reported in a timely manner. In a follow up, auditors found DEC made progress in addressing the problems identified in the initial audit report, but additional improvements are still needed, including ensuring municipalities identified in the original audit enroll in the alert program.

 

Department of Motor Vehicles (DMV): Assessable Expenses of Administering the Motor Vehicles Financial Security Act and the Motor Vehicle Safety Responsibility Act for the Three State Fiscal Years Ended March 31, 2021 (2021-M-2)

The acts help ensure that the operators of motor vehicles driven in New York possess adequate insurance coverage, or are financially secure, to compensate those persons they might injure or whose property they might damage as a result of an accident. DMV is responsible for tracking the expenses of administering the acts and assessing these expenses on insurance carriers. Auditors found the expenses for administering the acts for the three State Fiscal Years ended March 31, 2021, averaged $23.7 million a year.

 

Office of Children and Family Services (OCFS): Oversight of Runaway and Homeless Youth (RHY) (Follow-Up) (2021-F-24)

An audit released in August 2020 found that while OCFS generally had established controls to ensure it is conducting program and fire safety inspections for certified RHY programs and facilities, it did not always conduct inspections within established time frames, and supporting documentation was not always complete or provided in a timely manner by or to program staff after the conclusion of an inspection. In a follow-up, auditors found OCFS made some progress in addressing the problems identified in the initial audit report. However, improvements are still needed.

 

Office of General Services (OGS): Efficiency of Warehouse Space (Follow-Up) (2021-F-20)

An audit issued in 2020 found that OGS had reduced leased warehouse space by 434,266 square feet and realized a cost savings of $1,699,020 from Jan. 1, 2014 through March 29, 2019 as part of the state’s Warehouse Consolidation Initiative. However, OGS had not yet reduced any state-owned warehouse space and an inventory of all state warehouses did not exist. In a follow-up, auditors found OGS has been limited in its efforts to consolidate warehouse space, due in part to OGS shifting its priorities in response to the COVID-19 pandemic, but was able to implement the audit’s six recommendations.

 

New York CityNew York City Administration for Children’s Services (ACS) and the New York City Department of Youth and Community Development (DYCD): Identifying, Reporting, and Providing Services for Youth at Risk of Sexual Human Trafficking in New York City (2021-N-2)

The 2014 federal Preventing Sex Trafficking and Strengthening Families Act requires the screening of children within the child welfare system for potential sex trafficking and the timely reporting of sex trafficking incidents to law enforcement. It also requires data collection on sex-trafficked and at risk youth. DiNapoli’s auditors found ACS officials failed to support that they ensured staff and providers screened children to identify sex-trafficked victims or at-risk youth. They also found that DYCD does not have procedures requiring its providers to screen youth for indicators of trafficking.

 

New York City Department of Transportation (DOT): Controls Over Revocable Consents (Follow-Up) (2021-F-28)

A revocable consent is the grant of a right to an individual or organization to construct and maintain certain structures on, over, or under city streets and sidewalks in exchange for fees. An audit released in September 2020 found DOT did not bill and collect the correct amounts for the consents, did not comply with all procedures, and did not ensure that structures requiring revocable consents had one in place. In a follow up, auditors found DOT had made some progress addressing the issues identified in the initial report.

 

School District Audits

Greenville

 
Lansing

 
Onteora

 
Wheelerville Union Free

 
Peekskill

 
South Seneca

 
Trumansburg

 

In addition, an audit that sampled 20 school districts found they did not provide mental health training to all staff for the 2020-21 school year by the State Education Department’s deadline of Sept. 15, according to State Comptroller DiNapoli. However, the COVID pandemic has delayed district training programs. 

The Comptroller observed that “School personnel are often the first to notice if a student is having mental health challenges, and they need effective training to help them understand the signs and symptoms early on. 

"Failure to do so can have devastating consequences for students, staff, families and communities. Unfortunately, my office has found much of this vital training is not taking place. School districts should follow SED guidance so everyone from the superintendent to the substitute teacher is properly trained to identify problems. Our nation is facing a mental health crisis, and we need to help our students.”

 

Municipal Audits

Town of Danby

 
Village of Delhi

 
Town of Frankfort

 
Town of Sanford

 
Town of Webb

 
City of Yonkers

 ###

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Determining if a collective bargaining agreement evidences a "clear and unmistakable intent to defer the question of arbitrability to an arbitrator"

Maanen v New York Univ.

2022 NY Slip Op 03575

Decided on June 02, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 02, 2022
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Higgitt, JJ.

Index No. 154902/19 Appeal No. 16072 Case No. 2020-03492

[*1]Robert Maanen etc., et al., Plaintiffs-Respondents,

v

New York University, Defendant-Appellant.

DLA Piper LLP, (US), New York (Joseph A. Piesco, Jr. of counsel), for appellant.

Virginia & Ambinder, LLP, New York (James E. Murphy of counsel), for respondents.

 

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about July 14, 2020, which denied defendant New York University's motion to compel arbitration and to dismiss the complaint, unanimously affirmed, without costs.

The motion court properly determined that the collective bargaining agreement between defendant and the named plaintiff's Union, Local 810, International Brotherhood of Teamsters, does not evidence a clear and unmistakable intent to defer the question of arbitrability to an arbitrator. Nor does the agreement demonstrate that the parties intended to arbitrate the claims of violation of wage provisions of the Labor Law asserted in the complaint (see Matter of Berger v New York University, __AD3d__, 2022 NY Slip Op 03313 [1st Dept 2022]; Hichez v United Jewish Council of the E. Side, Home Attendant Serv. Corp., 179 AD3d 576 [1st Dept 2020]; see Lorentti-Herrera v Alliance for Health, Inc., 173 AD3d 596 [1st Dept 2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 2, 2022

Seeking to recover damages for alleged employment discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law

 

Blackman v Metropolitan Tr. Auth.

2022 NY Slip Op 03490

Decided on June 1, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 1, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
DEBORAH A. DOWLING, JJ.

2019-09440
(Index No. 502489/14)

[*1]Michelle Blackman, respondent,

v

Metropolitan Transit Authority, et al., defendants, New York City Transit Authority, et al., appellants.

David I. Farber (Steve S. Efron, New York, NY, of counsel), for appellants.

The Clancy Law Firm, P.C. (Niall Macgiollabhuí, New York, NY, of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law, the defendants New York City Transit Authority, Thomas P. Latimer, and Christopher Johnson appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated July 8, 2019. The order, insofar as appealed from, in effect, denied those branches of those defendants' motion which were for summary judgment dismissing the first, third, fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against them.

ORDERED that the order is modified insofar as appealed from, on the law, by deleting the provisions thereof, in effect, denying those branches of the motion of the defendants New York City Transit Authority, Thomas P. Latimer, and Christopher Johnson which were for summary judgment dismissing the fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against them, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, an African-American female, was employed by the defendant New York City Transit Authority (hereinafter the NYCTA). In March 2014, the plaintiff commenced this action, inter alia, to recover damages for employment discrimination on the basis of race in violation of the New York State Human Rights Law (Executive Law art 15; hereinafter NYSHRL) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.; hereinafter NYCHRL). The complaint asserted causes of action to recover damages for discrimination in hiring (first cause of action), discrimination in promotion (third cause of action), constructive discharge and hostile work environment (fifth cause of action), discrimination based on disparate impact (seventh cause of action), aiding and abetting discrimination against the defendants Thomas P. Latimer and Christopher Johnson (ninth cause of action), and breach of contract (eleventh and twelfth causes of action).

Thereafter, the NYCTA, Latimer, and Johnson (hereinafter collectively the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated July 8, 2019, the Supreme Court, among other things, in effect, denied those [*2]branches of the motion which were for summary judgment dismissing the first, third, fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against the defendants. The defendants appeal.

The NYSHRL and the NYCHRL prohibit discrimination in employment on the basis of race (see Golston-Green v City of New York, 184 AD3d 24, 34). "To establish a prima facie case of discrimination on the basis of race under the NYSHRL, a plaintiff must demonstrate that (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified to hold the position, (3) the plaintiff suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ellison v Chartis Claims, Inc., 178 AD3d 665, 667; see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1001). To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, "a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual" (Reichman v City of New York, 179 AD3d 1115, 1117 [internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1001).

Here, the Supreme Court properly determined that there were triable issues of fact as to whether the defendants' proffered explanations for not hiring or promoting the plaintiff to a certain position, and for, instead, promoting a white woman to that position, were a pretext for intentional racial discrimination (see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708; Reichman v City of New York, 179 AD3d at 1117; see also Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1001).

Moreover, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the claims of employment discrimination based on race in violation of the NYCHRL. The defendants failed to establish, prima facie, "that there was no evidentiary route that could allow a jury to find that discrimination on the basis of [race] played a role in their challenged actions" (Reichman v City of New York, 179 AD3d at 1118). The defendants' contention that the NYCTA is exempted from the requirements of the NYCHRL is without merit (see Tang v New York City Tr. Auth., 55 AD3d 720, 720-721).

Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were for summary judgment dismissing the first cause of action, alleging discrimination in hiring, and the third cause of action, alleging discrimination in promotion.

However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the fifth cause of action as alleged constructive discharge. "An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign" (Golston-Green v City of New York, 184 AD3d at 44; see Nelson v HSBC Bank USA, 41 AD3d 445, 447). Here, the defendants established, prima facie, that the plaintiff's complaints were insufficient to show an intolerable work environment that would lead a reasonable person in that position to feel compelled to resign (see Best v Peninsula N.Y. Hotel Mgt., 309 AD2d 524, 524-525; Petrosino v Bell Atl., 385 F3d 210, 231). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court also should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the fifth cause of action as alleged a hostile work environment. A hostile environment claim "involves repeated conduct," not "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire" (National Railroad Passenger Corporation v Morgan, 536 US 101, 114). Here, the two discrete acts alleged by the plaintiff were insufficient to create a hostile work environment (see Murphy v Department of Educ. of the City of N.Y., 155 AD3d 637, 639-640; Holtz v Rockefeller & Co., 258 F3d 62, 75 [2d Cir]).

The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the ninth cause of action, alleging aiding and abetting discrimination (see Strauss v New York State Dept. of Educ., 26 AD3d 67, 73). The court should have granted those branches of the defendants' motion which were for summary judgment dismissing the eleventh and twelfth causes of action, alleging breach of contract, since the plaintiff abandoned those causes of action by failing to address them in opposition to the defendants' motion (see Elam v Ryder Sys., Inc., 176 AD3d 675, 676). Finally, the court should have granted that branch of the motion which was for summary judgment dismissing the seventh cause of action, alleging discrimination based on disparate impact, as the plaintiff also abandoned that cause of action.

BARROS, J.P., CHAMBERS, MILLER and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court