Cagino v. Levine

• Decision Date: 04 November 2021
• Docket Number: 532458
• Citation: 199 A.D.3d 1103,157 N.Y.S.3d 561
• Parties: Paul F. CAGINO, Appellant, v. Meg LEVINE, Individually and as Deputy Attorney General, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1103
157 N.Y.S.3d 561

Paul F. CAGINO, Appellant,
v.
Meg LEVINE, Individually and as Deputy Attorney General, et al., Respondents.

532458

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

Calendar Date: September 9, 2021
Decided and Entered: November 4, 2021

157 N.Y.S.3d 563

Paul F. Cagino, Glenmont, appellant pro se.

Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

Before: Lynch, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (O'Connor, J.), entered September 17, 2020 in Albany County, which granted defendants’ motion to dismiss the second amended complaint.

Plaintiff is a former employee of the Office of the Attorney General who worked in the Albany Claims Bureau for many years. In May 2016, the then bureau chief retired and plaintiff unsuccessfully applied for both that position and the newly-created deputy bureau chief position. In July 2019, plaintiff commenced this action against defendants – individually and in their respective professional capacities – alleging that, in denying him the subject promotions, defendants engaged in age discrimination. Defendants moved to dismiss both the original complaint and plaintiff's amended complaint, and plaintiff cross-moved for leave to amend to add a cause of action for religious discrimination. Supreme Court granted defendants’ motion to dismiss as to the bureau chief position, finding that plaintiff's age discrimination claim was time-barred, and that his request to add a religious discrimination claim was untimely. However, the court granted plaintiff's request to add a cause of action for religious discrimination as to the deputy bureau chief position and reserved on the balance of defendants’ motion to dismiss.

After plaintiff filed his second amended complaint in March 2020, defendants moved to dismiss that pleading for failure to state a cause of action. Supreme Court granted defendants’ motion, finding that plaintiff failed to allege sufficient facts to give rise to an inference of either religious or age discrimination as to the deputy bureau chief position. This appeal by plaintiff ensued.

We affirm. On a motion to dismiss pursuant to CPLR 3211(a)(7), "we afford the complaint a liberal construction, accept the facts alleged as true, accord the plaintiff the benefit of every favorable inference and determine only whether the alleged facts fit within any cognizable legal theory" ( Gagnon v. Village of Cooperstown, N.Y., 189 A.D.3d 1724, 1725, 137 N.Y.S.3d 193 [2020] ; see McQuade v. Aponte–Loss, 195 A.D.3d 1219, 1220, 150 N.Y.S.3d 350 [2021] ; Hilgreen v. Pollard Excavating, Inc., 193 A.D.3d 1134, 1136, 146 N.Y.S.3d 323 [2021], appeal dismissed 37 N.Y.3d 1002, 152 N.Y.S.3d 669, 174 N.E.3d 694 [2021] ). That said, "the favorable treatment accorded to a plaintiff's complaint is not limitless and, as such, conclusory allegations – claims consisting of bare legal conclusions with no factual specificity – are insufficient to survive a motion to dismiss" ( F.F. v. State of New York, 194 A.D.3d 80, 83–84, 143 N.Y.S.3d 734 [2021] [internal quotation marks and citations omitted], appeal dismissed and lv. denied 37 N.Y.3d 1040, 2021 WL 4735375 [Oct. 12, 2021] ; see

157 N.Y.S.3d 564

Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). To state a cause of action for discrimination under the Human Rights Law (see Executive Law § 296 ), "a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she ... suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she ... suffered [the] adverse employment action, and (4) that the ... adverse employment action occurred under circumstances giving rise to an inference of ... discrimination" ( Godino v. Premier Salons, Ltd., 140 A.D.3d 1118, 1119, 35...