Ayende v. The City of New York

• Docket Number: Index No. 153423/2022,Motion Seq. No. 001
• Decision Date: 28 August 2023
• Citation: 2023 NY Slip Op 32970 (U)
• Parties: VIVIANA AYENDE, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE PENSION FUND, MATTHEW SOUTHARD, ADAM BLOOM Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 32970(U)

VIVIANA AYENDE, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE PENSION FUND, MATTHEW SOUTHARD, ADAM BLOOM Defendant.

Index No. 153423/2022, Motion Seq. No. 001

Supreme Court, New York County

August 28, 2023

Unpublished Opinion

MOTION DATE July 25, 2022

DECISION + ORDER ON MOTION

HON J. MACHELLE SWEETING, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion to/for DISMISS

This employment law action arises out of allegations of disability discrimination in violation of the New York City Human Rights Law (Administrative Code of City of N.Y. § 8-107) ("NYCHRL"). Plaintiff also alleges failure to accommodate, hostile work environment and negligent failure to train, supervise and discipline. Defendants, the City of New York ("City"), the New York City Police Pension Fund ("PPF"), Adam Bloom ("Bloom"), and Matthew Southard ("Southard") (collectively "defendants" or "the City") move to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). Plaintiff opposes and cross-moves to amend the complaint.

BACKGROUND

Plaintiff joined the New York City Police Department in 2005. On October 23, 2018, plaintiffs supervisor instructed her to partner with another police officer that had "abandoned" her on a previous shift (proposed amended complaint, NYSCEF Doc No. 25, ¶ 45). Plaintiff was suspended for 30 days for failure to comply with an order by her superior. Following the suspension, plaintiff left a handwritten letter to her children and husband and drove to Connecticut, where she owned a home. Plaintiff states that she wrote the letter simply because she planned to relocate to Puerto Rico, but the contents contained apologies to each of her children asking them to forgive her and instructions to her husband to have the mortgage transferred into his name. She wrote that she would "say [her children's] names without stopping until [she] couldn't breathe anymore" (handwritten letter, NYSCEF Doc No. 10 at 9). Alarmed by the letter, plaintiffs husband, who is also an NYPD officer, alerted NYPD and the Danbury Police Department that his wife was missing. When plaintiff was eventually found, she was taken to Danbury Hospital where she was psychologically evaluated and released, after being kept overnight for observation. On October 25, 2018, NYPD officers took plaintiff to its medical unit, where an NYPD psychologist evaluated her. Thereafter, plaintiff was involuntarily admitted to the psychiatric unit of New York Presbyterian Columbia University Hospital for two weeks.

Once plaintiff was discharged from the hospital and her suspension was over, she was placed on restricted duty, where she performed administrative functions. She was monitored by NYPD's psychological evaluation section ("PES") and was required to meet with an NYPD psychologist monthly. Eventually, that psychologist was Southard, who was supervised by Bloom. Southard found that plaintiff suffered from an undetermined personality disorder with mixed personality traits and an unspecified anxiety disorder that made her unfit to perform the duties of ah NYPD officer (NYPD Psychological Evaluation and Endorsements, NYSCEF Doc No. 13 at 7).

On December 8, 2020, after nearly three years of restricted duty, Southard recommended that plaintiff be "surveyed" from the NYPD with a disability retirement. Being surveyed would essentially mean that plaintiff is forced to retire from the NYPD due to a disability. On April 18, 2022, the Medical Board of the Police Pension Fund concurred with Southard's recommendation, which had been endorsed by several other NYPD officials, including PES's Director, the Deputy Chief Surgeon of Psychiatry, the Commanding Officer of the Medical Division to the Chief of Personnel, the Executive Officer of the Chief of Personnel, the Chief Department Surgeon, the Police Commissioner, and the Chief of Personnel (NYSCEF Doc No. 13).

Plaintiff contends, that she is not disabled but is wrongly perceived as psychologically disabled, and, as a result, she was subjected to monthly PES meetings, placed on restricted duty and is being forced to retire. Plaintiffs complaint states in part:

82. Plaintiff as a result of her restricted status began a series of transfers which were essentially the NYPD reasonably accommodating Plaintiff based on their belief that Plaintiff was disabled.

83. Plaintiff was transferred to the Manhattan Courts Section in November 2018.

84. Plaintiff worked in that command until June 2019 when she was transferred to the 40th Precinct where she worked primarily on the telephone switchboard and in the complaint room.

85. In January 2020, Plaintiff was transferred to the Firearm and Tactics Section in the Vest Unit.

86. In September 2020, Plaintiff was transferred to the Queens Warrant Section where she was assigned the wheel.

87. At each one of these assignments, Plaintiff was able to perform the essential functions of her assignments in the role she was given.

98. Plaintiff repeatedly stated to the Defendants herein that she could perform with accommodation, as she had for the previous three (3) years if the NYPD believed she was a danger to herself or others but in reality, she should be allowed to work full duty as there was no medical basis for believing she was suicidal at this time

(NYSCEF Doc No. 25).

Plaintiff denies that she is or ever was mentally unwell or suicidal. Plaintiff is presently still on restricted duty and is not in possession of her service weapon or badge. ..)

DISCUSSION

A. Plaintiffs Cross-Motion to Amend

Generally, "[l]eave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay" (Murray v City of New York, 51 A.D.3d 502, 503 [1st Dept 2008] [internal quotation marks and citations omitted]). "[P]laintiff need not establish the merit of its proposed new allegations but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit..." (MBIA Ins. Corp. v Greystone & Co. Inc., 74 A.D.3d 499, 500 [1 st Dept 2010] [internal citations omitted]).

Defendant opposes plaintiffs cross-motion to amend on the grounds that such amendment would be futile. The Court finds no prejudice to defendants here and, accordingly, grants plaintiffs cross-motion. Hereinafter, the proposed amended complaint is referred to as the "Amended Complaint"

B. Defendants' Motion to Dismiss

I. Statute of Limitations

At the outset, defendants move to dismiss portions of plaintiffs discrimination claims as barred by the statute of limitations. Actions to recover damages for alleged employment discrimination under the NYCHRL are subject to a three-year statute of limitations (see Administrative Code § 8-502[d]; Kent v Papert Cos., 309 A.D.2d 234, 240 [1st Dept 2003]).

Defendants argue that since plaintiff commenced this action on April 21, 2022, her NYCHRL claims arising before April 21, 2019 are barred by the statute of limitations.

Plaintiffs contentions are two-fold. First, she argues that pursuant to the continuing violation doctrine, "[p]laintiff s factual allegations are actionable as the results of the discrimination are continual to date" (NYSCEF Doc No. 24 at 17). Second, she argues that "as a result of the Covid-19 statute of limitation tolling, "plaintiff is entitled to a 228-day addition to the statute of limitations of three (3) year set forth under New York City Human Rights Law" (NYSCEF Doc No. 25 ¶ 4).

Pursuant to the NYCHRL, a continuing violation may be found "where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" (Morgan v NYS Atty. Gen. 's Off., 2013 WL 491525, at*12, 2013 U.S. Dist LEXIS 17458, *37 [SDNY, Feb. 8, 2013, No. 11 CIV 9389 PKC JLC] [internal quotation marks and citations omitted]). Under the continuing violation doctrine, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it" (Cornwell v Robinson, 23 F.3d 694, 703-704 [2d Cir 1994] [internal quotation marks and citation omitted]; Center for Independence of the Disabled v Metropolitan Transp. Auth, 184A.D.3d 197, 200-201 [1st Dept 2020] ["Under the NYCHRL...continuing acts of discrimination within the statutory period will toll the running of the statute of limitations until such time as the discrimination ends"]).

Here, plaintiff fails to plead any instances where a continuing violation theory could be applied. While she states that the discriminatory animus towards her continues presently, neither her pleadings nor her papers point to any events that the court could construe as such. Assuming arguendo, plaintiff is referring to defendants' failure to accommodate her request to indefinitely work on a restricted capacity, "an employer's rejection of an employee's proposed accommodation ..." is a discrete act that "does not give rise to a continuing violation" (Elmenayer v ABF Freight Sys., Inc., 318 F.3d 130, 134-135 [2d Cir 2003]). As such, the continuing violation doctrine is inapplicable.

Turning to plaintiffs Covid-19 tolling contention, on March 20, 2020 Governor Cuomo signed Executive Order ("EO") No. 202.8 in response to the pandemic. As relevant here, the EO "tolled" any "specific time limit for the commencement, filing, or service of any legal action ... until April 19, 2020" (9 NYCRR 8.202.8), That toll was extended through several subsequent EOs, the last of which remained in effect until November 3,2020 (see Murphy v Harris, 210 A.D.3d 410,411 [1st Dept 2022])....