Abe v. N.Y. Univ.

• Court: New York Supreme Court — Appellate Division
• Citation: Abe v. N.Y. Univ., 169 A.D.3d 445, 94 N.Y.S.3d 17 (N.Y. App. Div. 2019)
• Decision Date: 07 February 2019
• Docket Number: 8369– 8370–8371– 8372,157465/16,Index 105985/10
• Parties: Koya ABE, Plaintiff–Appellant, v. NEW YORK UNIVERSITY, et al., Defendants–Respondents. Koya Abe, Plaintiff–Appellant, v. New York University, et al., Defendants–Respondents.

169 A.D.3d 445

94 N.Y.S.3d 17

Koya ABE, Plaintiff–Appellant,

v.NEW YORK UNIVERSITY, et al., Defendants–Respondents.

Koya Abe, Plaintiff–Appellant,

v.New York University, et al., Defendants–Respondents.

8369– 8370–8371– 8372

Index 105985/10

157465/16

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 7, 2019

Jennifer L. Unruh, Astoria, for appellant.

Davis Wright Tremaine LLP, New York (Lyle S. Zuckerman of counsel), for Cathleen Dawe, respondent.

DLA Piper LLP (US), New York (Brian S. Kaplan of counsel), for New York University, David M McLaughlin, Nancy Barton, Ken Castronuovo, Joseph Giovannelli, Roger Ho, Mary Brabeck, Barbara Cardeli–Arroyo, respondents.

Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ.

Assuming that plaintiff established a prima facie case of discrimination on the basis of race, national origin, immigration status, or age ( Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 112–113, 946 N.Y.S.2d 27 [1st Dept. 2012] ; Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 945 N.Y.S.2d 645, 968 N.E.2d 1001 [2012] ; Bailey v. New York Westchester Sq. Med. Ctr., 38 A.D.3d 119, 123, 829 N.Y.S.2d 30 [1st Dept. 2007] ; see Executive Law § 296 ; Administrative Code of City of N.Y. § 8–107[1][a] ), the Supreme Court properly dismissed that claim because plaintiff failed to raise an issue of fact whether defendants' reason for terminating him was pretextual (see Melman, 98 A.D.3d at 113–114, 120, 946 N.Y.S.2d 27 ). Defendants demonstrated a legitimate nondiscriminatory reason why they eliminated plaintiff's part-time darkroom lab manager and photography adjunct teaching positions, citing budget cuts and the fact that the duties of another full-time employee, recommended by plaintiff, overlapped significantly with most of plaintiff's duties as part-time darkroom lab manager. Defendant New York University, which was facing an uncertain financial future after the 2007–2008 fiscal crisis, directed each Department to find areas to reduce expenses, including in the Art Department where plaintiff was employed. Defendants did not reappoint plaintiff to semester-long adjunct teaching positions after 2009, but they demonstrated that other adjunct staff who were not reappointed did not share plaintiff's protected characteristics, and that adjunct positions were offered to MFA students who were non-Caucasian. In addition, his supervisor, defendant Nancy Barton, who decided to terminate his positions, is older than plaintiff.

Plaintiff failed to raise triable issues of fact whether defendants' preference for more affordable MFA graduate students, or consolidation of his duties with another employee amount to pretext. He briefly argues that the Art Department spent money on equipment around the time of stated budget issues, but this amounts only to questions regarding whether the company's decision to terminate his employment was correct or justified; they do not raise an inference of pretext, i.e., that defendants' reason for the termination was false and that discrimination was the real reason ( Melman, 98 A.D.3d at 120–121, 946 N.Y.S.2d 27 ).

The court also properly rejected plaintiff's disparate impact claim ( Levin v. Yeshiva Univ., 96 N.Y.2d 484, 730 N.Y.S.2d 15, 754 N.E.2d 1099 [2001] ). NYU showed that of the six other adjuncts who were not reappointed, none were Japanese. All were non-Asian and two were Causasian (see R1148 at ¶¶ 24–37). Moreover, mere disparate treatment, without a showing that the disparity was based on a protected characteristic, does not amount to discrimination ( Mete v. New York State Off. of Mental Retardation & Dev. Disabilities, 21 A.D.3d 288, 297, 800 N.Y.S.2d 161 [1st Dept. 2005] ).

The Supreme Court incorrectly cited the "severe and pervasive" standard in evaluating plaintiff's hostile work environment claim, instead of applying the more liberal standard under the New York City Human Rights Law (HRL) ( Williams v. New York City Hous. Auth., 61 A.D.3d 62, 76, 80, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ). Nevertheless, it properly dismissed the claim because plaintiff failed to show that any adverse employment action was on account of any protected class. Instead, plaintiff argued that such claims were in retaliation for his filing prior discrimination complaints, and the court denied dismissal of the retaliation claim. The court correctly concluded that other conduct plaintiff described was either time-barred or consisted of a few vague and stray remarks, which do not, without more, constitute evidence of discrimination ( Hudson v. Merrill Lynch & Co., Inc., 138 A.D.3d 511, 517, 31 N.Y.S.3d 3 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742476 [2016] ).

The court also properly denied plaintiff's motion for leave to renew the summary judgment motions in the 2010 action because plaintiff failed to explain why he waited at least four years since the litigation commenced to submit his first FOIA request, and thus did not receive evidence of other discrimination charges filed against NYU sooner ( CPLR 2221[e][2] ; see Ramos v. City of New York, 61 A.D.3d 51, 54, 872 N.Y.S.2d 128 [1st Dept. 2009] ). In any case, the mere fact that others filed discrimination claims on similar grounds does not tend to show that NYU acted with any discriminatory intent towards him; thus, they do not constitute "new facts" that would change the prior determination. As a result, plaintiff's motion to renew and reargue was in essence only a motion for reargument, the denial of which is non-appealable as of right (see e.g. Kitchen v. Diakhate, 68 A.D.3d 570, 889 N.Y.S.2d 846 [1st Dept. 2009] ).

The Supreme Court correctly granted, upon reargument, summary judgment dismissing all claims against defendant Dawe, NYU's former associate general counsel, including aiding and abetting retaliation. Plaintiff cites no facts to show Dawe did anything other than act in her role as an attorney in advising NYU employees regarding discriminatory conduct, and in investigating and gathering information to respond to an EEOC charge plaintiff had filed (see generally Art Capital Group, LLC v. Neuhaus, 70 A.D.3d 605, 606, 896 N.Y.S.2d 35 [1st Dept. 2010] ). None of the documents or correspondence plaintiff cites raise any triable issue whether she acted with any discriminatory intent or colluded with others to create a hostile work environment.

The Supreme Court providently exercised its discretion in denying plaintiff's motions to compel additional discovery ( GoSMILE, Inc. v. Levine, 112 A.D.3d 469, 977 N.Y.S.2d 206 [1st Dept. 2013] ) and to vacate the note of issue ( Savino v. Lewittes, 160 A.D.2d 176, 178, 553 N.Y.S.2d 146 [1st Dept. 1990] ). As the voluminous record shows, plaintiff received ample discovery, and he fails to cite any missing information that is material to his case, or explain why he did not seek certain information prior to issuance of the note of issue, six years after commencement of the 2010 action (see Alvarez v. Feola, 140 A.D.3d 596, 597, 33 N.Y.S.3d 700 [1st Dept. 2016] ; Rosenberg & Estis, P.C. v. Bergos, 18 A.D.3d 218, 794 N.Y.S.2d 341 [1st Dept. 2005] ). For the same reasons, denial of summary judgment was not warranted on the basis that discovery was not complete ( CPLR 3212[f] ; Frierson v. Concourse Plaza Assoc., 189 A.D.2d 609, 610, 592 N.Y.S.2d 309 [1st Dept. 1993] ; see Fulton v. Allstate Ins. Co., 14 A.D.3d 380, 381, 788 N.Y.S.2d 349 [1st Dept. 2005] ).

Regarding the court's order that certain documents be sealed, plaintiff overlooks that numerous documents have been unsealed since an initial order temporarily directed that all of his opposition papers be sealed. Thus, while he correctly argues that certain public records should be unsealed, they have been unsealed. The court, in its orders entered December 5, 2017 and April 3, 2018 directed only that documents "narrowly tailored" to the definition of "Confidential Information," as defined in the parties' so-ordered stipulation regarding the filing of such information, be sealed. The record demonstrates that the court made a finding of good cause before ordering them sealed (see 22 NYCRR 216.1 ; Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., B.V., 28 A.D.3d 322, 325, 814 N.Y.S.2d 110 [1st Dept. 2006] ). Nor was that stipulation nullified, as plaintiff claims.

The...