Garcia v. Peninsula New York Partners, 2008 NY Slip Op 32335(U) (N.Y. Sup. Ct. 8/20/2008)

• Court: New York Supreme Court
• Writing for the Court: Patricia P. Satterfield
• Citation: Garcia v. Peninsula New York Partners, 2008 NY Slip Op 32335(U) (N.Y. Sup. Ct. 8/20/2008), 2008 NY Slip Op 32335, 0015892/2006, Motion Cal. No.: 12, Motion Seq. No.: 3 (N.Y. Sup. Ct. Aug 20, 2008)
• Decision Date: 20 August 2008
• Docket Number: 0015892/2006,Motion Seq. No.: 3,Motion Cal. No.: 12
• Parties: WILSON R. GARCIA, Plaintiff, v. PENINSULA NEW YORK PARTNERS d/b/a PENINSULA HOTEL, Defendant.

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2008 NY Slip Op 32335(U)

WILSON R. GARCIA, Plaintiff, v. PENINSULA NEW YORK PARTNERS d/b/a PENINSULA HOTEL, Defendant.

0015892/2006

Motion Cal. No.: 12

Motion Seq. No.: 3

Supreme Court of the State of New York, Queens County

August 20, 2008

Motion Date: June 4, 2008

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PATRICIA P. SATTERFIELD, Judge:

Upon the foregoing papers, it hereby is ordered that this motion is determined as follows:

Plaintiff Wilson R. Garcia ("plaintiff') commenced this action initially against defendants Peninsula New York Partners d/b/a Peninsula Hotel ("Peninsula Hotel") and Hong Kong and Shanghai Hotels, Limited ("HSH"), alleging that defendants, plaintiff's employer, discriminated against him on the basis of his disability, and failed to make accommodations for his disability in violation of the New York State Human Rights Law (Executive Law § 296) and the New York City Human Rights Law (Administrative Code of the City of New York § 8-101 et seq.). By order of this Court dated December 7, 2006, the motion of HSH to dismiss the complaint as to it was granted, and plaintiff was granted leave to serve an amended complaint; the amended complaint names Peninsula Hotel as the sole defendant. Plaintiff seeks to recover compensatory and punitive damages, and attorney fees for the physical and emotional harm allegedly inflicted by Peninsula Hotel.

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Pertinent Facts

Peninsula Hotel is a luxury hotel located at Fifth Avenue and 551' Street, New York, New York, that consists of sixteen guest floors. Plaintiff began his employment with Peninsula Hotel on October 13, 1998, as a houseman, a position in which the employee is assigned to work interchangeable tasks as floor housemen, lobby porters or linen room attendants, as provided in the collective bargaining agreement between the Hotel Association of the City of New York, of which Peninsula Hotel is a member, and the New York Hotel and Motel Trades Council, AFL-CIO. From 2003 through 2006, plaintiff was scheduled to work the morning shift as a lobby porter for two (2) days and as a floor houseman for three (3) days on guest floors seventeen (17) to twenty (20), depending upon hotel occupancy, business needs and staffing requirements. The lobby porter cleans the lobby, mezzanine, executive offices and adjacent bathrooms, restocks toilet paper and tissues, polishes railings, removes smudges from mirrors, vacuums, shines shoes and transports amenities to the guest floors. The floor houseman cleans guest floor hallways; vacuums and shampoos carpets and expunges stains on walls, mirrors and windows; dusts moldings, baseboards, lamps and furniture; deep cleans up to five (5) guest rooms, moving and polishing furniture, removes and restores cleaned drapes, blinds and curtains; transports garbage from backlandings to a central location for removal; and responds to guest requests conveyed by beeper in the assigned section.

Plaintiff claims that Peninsula Hotel, notwithstanding it knowledge that he suffers from depression and asthma, discriminated against him by refusing to change his assignments, by assigning to him tasks that were impossible to complete, by harassing him, and refusing to accommodate his special needs. On May 8 and 9, 2003, plaintiff was hospitalized at Elmhurst Hospital for major depression, a fact that he allegedly communicated to Francea Clark, Peninsula Hotel's Director of Human Resources, with his submission of the medical records reflecting his hospital admission and the diagnosis of depression disorder and asthma. Approximately six months later, plaintiff again became ill and took a three month disability leave for major depression from January 15, 2004 to March 13, 2004. The medical documentation related to this leave allegedly was given to Francea Clark, as well as Alfredo Victoria, one of his supervisors. On July 13, 2005, plaintiff again was admitted to Elmhurst Hospital Center for stress and depression, and transferred from there to Presbyterian Hospital in White Plains, where he remained for nine days; the medical documentation for these admissions from July 13 to July 22, 2005, also allegedly were given to Francea Clark. Notwithstanding his documented medical conditions, plaintiff alleges that he was assigned more work than his non-disabled co-workers, was constantly pressured and harassed by his supervisors, resulting in his sending a letter to the general manager of Peninsula Hotel on December 28, 2005, detailing his illness and the alleged stress, pressure and harassment at the workplace. On March 1, 2006, plaintiff left his employment with Peninsula Hotel allegedly because his depression worsened as a result of discriminatory conduct of his supervisors at Peninsula Hotel. Subsequently, on April 3, 2006, plaintiff filed a verified complaint with the New York State Division of Human Rights, alleging that Peninsula Hotel discriminated against him because of his disability and failed to reasonably accommodate him; earlier, on October 31, 2005, plaintiff had filed a charge with the Equal Employment Opportunity Commission, which was dismissed with a right to sue.

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Discussion

Defendant Peninsula Hotel moves for summary judgment dismissing the amended complaint. It is beyond cavil that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1^st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2^nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra.

The New York State Human Rights Law prohibits an employer from discriminating against an employee because of a disability (Executive Law § 296[1] ). To state a prima facie case of employment discrimination due to a disability under Executive Law § 296, and Administrative Code of the City of New York § 8-107, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment. McEniry v. Landi, 84 N.Y.2d 554, 558 (1994); Pimentel v Citibank, N.A., 29 A.D.3d 141 (2^nd Dept. 2006); Thide v New York State Dept. of Transp., 27 A.D.3d 452, 453 (2^nd Dept. 2006); Timashpolsky v State Univ. of N.Y. Health Science Center at Brooklyn, 306 A.D.2d 271, 272,[2003], lv denied 1 N.Y.3d 507 (2004). Siano v. Dolce, 256 A.D.2d 582 (2^nd Dept. 1998). See, also, Staskowski v. Nassau Community College, A.D.3d N.Y.S.2d, 2008 WL 2814808 (2^nd Dept. 2008); McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676 (2^nd Dept. 2006). The term "disability" is defined as "physical, medical or mental impairments that do not prevent the complainant from performing in a reasonable manner the activities involved in the job" (Pembroke v New York State Office of Court Admin., 306 A.D.2d 185 (2^nd 2003), citing Executive Law § 292 former [21]), and is limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job held (see Executive Law § 292[21]." Staskowski v. Nassau Community College, ___ A.D.3d ___. ___ N.Y.S.2d ___, 2008 WL 2814808 (2^nd Dept. 2008); McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676 (2^nd Dept. 2006)[same]. Summary judgment is appropriate in cases where the defendant can demonstrate that the plaintiffs will not be able to establish a prima facie case of intentional discrimination. See, Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (200); Thompson v. Lamprecht Transport, 39 A.D.3d 846 (2^nd Dept. 2007).

To prevail on a summary judgment motion on this ground, Peninsula must demonstrate either plaintiffs failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual. Morse v. Cowtan & Tout, Inc., 41 A.D.3d

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563 (2^nd Dept. 2007); Johnson v. NYU Hospitals Center, 39 A.D.3d 817 (2^nd 2007), leave to appeal denied, 9 N.Y.3d 805 (2007); Cesar v Highland Care Ctr., Inc., 37 A.D.3d 393, 394 (2^nd Dept. 2007); DelPapa v Queensborough Community Coll., 27 A.D.3d 614 (2^nd 2006); see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004); Ferrante v American Lung Assn., 90 N.Y.2d 623, 632 (1997); Romney v New York City Tr. Auth, 8 A.D.3d 254 (2^nd Dept. 2004). Here, Peninsula Hotel contends that plaintiff has failed to establish a prima facie case for discrimination based either upon disability. It points to plaintiff's deposition testimony in which he acknowledged that many non-disabled housemen complained about excessive workload, could not recall whether he made any request for a shift change, and conceded that he did not request any accommodation based upon his disability. Peninsula Hotel further demonstrated that plaintiff was never given a written warning or suspended for failure to complete his assignment, but was given a verbal coaching and counseling for failing to advise management of an incomplete assignment, and submitted evidence that during the relevant time period, thirteen coaching and counseling sessions were given to four non-disabled housemen for reasons similar to plaintiff. Peninsula...