Lax v. The City Univ. of N.Y.
| Docket Number | Index No. 504682/2021 |
| Decision Date | 11 August 2023 |
| Citation | 2023 NY Slip Op 50922 (U) |
| Parties | Jeffrey Lax, SUSAN ARANOFF, RINA YARMISH, MICHAEL GOLDSTEIN and MICHELLE DAVIDOWITZ, Plaintiffs, v. The City University of New York, THE PROFESSIONAL STAFF CONGRESS, THE NEW CAUCUS OF THE PROFESSIONAL STAFF CONGRESS, MICHAEL SPEAR, MARGARET FEELEY, DOMINIC WETZEL, EMILY SCHNEE, BARBARA BOWEN, MATTHEW GARTNER, ANTHONY ALESSANDRINI, ELIZABETH DILL, KATHERINE PEREA, LIBBY GARLAND, and PATRICK LLOYD, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 13-18 28-31 34-36 40-43 45-46
Affidavits/ Affirmations in Reply 60
CUNY's Reply Memorandum of Law 26
The Union defendants' Memorandum of Law 32
The Union defendants' Reply Memorandum of Law 53
Feeley and Spear's Memorandum of Law 37
Upon the foregoing papers, in this action by plaintiffs Jeffrey Lax (Lax), Susan Aranoff (Aranoff), Rina Yarmish (Yarmish) Michael Goldstein (Goldstein), and Michelle Davidowitz (Davidowitz) (collectively, plaintiffs) alleging a first cause of action for hostile work environment discrimination on the basis of religion in violation of the New York State Human Rights Law, Executive Law § 290 et seq. (the NYSHRL), a second cause of action for retaliation in violation of the NYSHRL, a third cause of action for hostile work environment discrimination on the basis of religion in violation of the New York City Human Rights Law Administrative Code of the City of New York § 8-107 (the NYCHRL), a fourth cause of action for retaliation in violation of the NYCHRL, and a fifth cause of action by Lax against defendants Emily Schnee (Schnee), Dominic Wetzel (Wetzel), Matthew Gartner (Gartner), Anthony Alessandrini (Alessandrini), and Libby Garland (Garland) for assault and false imprisonment, defendant the City University of New York (CUNY) moves, under motion sequence number two, for an order pursuant to CPLR 3211 (a) (7), dismissing, with prejudice the claims asserted against it in plaintiffs' complaint.
Defendants Professional Staff Congress (the Union) and Barbara Bowen (Bowen) (collectively, the Union defendants) move, under motion sequence number three, for an order, pursuant to CPLR 3211 (a) (7), dismissing plaintiffs' complaint in its entirety, with prejudice, as against them.
Defendants Margaret Feeley (Feeley) and Michael Spear (Spear) move under motion sequence number four, for an order, pursuant to CPLR 3211 (a) (7), dismissing, with prejudice, the claims asserted against them in plaintiffs' complaint.
Defendants Alessandrini, Elizabeth Dill, Garland, Gartner, Kate Perea, Schnee, and Wetzel (collectively, the Professor defendants) move, by order to show cause, under motion sequence number five, for an order: (1) declaring that they are entitled to representation by Corporation Counsel; (2) disqualifying Corporation Counsel from representing them due to a conflict of interest; (3) directing Corporation Counsel and New York City to pay the reasonable legal fees of their attorneys of choice, namely, Remy Green, Esq. (Green) and Jonathan Wallace, Esq. (Wallace); and (4) in the alternative, if the court should determine that no conflict of interest exists, directing Corporation Counsel to permit attendance at its meeting(s) with them by Green and Wallace. [1]
Plaintiffs are observant Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY. The Union is the labor union for the faculty. Defendant the New Caucus of the Professional Staff Congress (New Caucus) is a political party of the Union. Bowen was the president of the Union and was a member of the governing board of the New Caucus. Spear was a professor at Kingsborough, an officer of the Union, and an officer of the New Caucus. Feeley was a professor at Kingsborough, an officer of the Union, and a member of the New Caucus. The Professor defendants were professors at Kingsborough and members of the New Caucus.
Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kingsborough Community College (PFC) (which is not a named defendant herein) and are also members of the New Caucus. The PFC was formed in late 2016 or early 2017 with the purpose of advancing various progressive initiatives on Kingsborough's campus. The New Caucus closely coordinated with the PFC. Spear is a leader of the PFC. Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kingsborough. Plaintiffs allege that each of the defendants actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.
Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC organized an anti-discrimination event for a Friday night (the Friday Night Event), with the purpose of excluding Sabbath-observant Jewish members, including Lax; that the Union leaders applied pressure to Kingsborough's chief diversity officer, Victoria Ajibade (Ajibade), to suppress the investigation of the Friday Night Event; that Lax was "badgered" at a Union event by five PFC members, including two Union officials; that on ratemyprofessor.com, one student wrote that Gartner, a Kingsborough professor, had told the student "[you] should have gone to a Jewish School" when the student requested to take off two days in order to observe Jewish holidays; that the PFC and the New Caucus members wrote in a communist newspaper regarding their "struggle" against a "network of Zionists" among the faculty at Kingsborough," and made similar comments in a publicly distributed campus survey; that an internal PFC email mentioned the need to "bring violence to the Zionists on campus"; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein's father was defaced; that nails were found in Lax and Goldstein's car tires; and that the PFC members called for plaintiffs' removal from their jobs at Kingsborough.
Plaintiff filed this action on February 26, 2021. On May 24, 2021, CUNY filed motion sequence number two (NYSCEF Doc No. 13). On October 12, 2021, the Union defendants filed motion sequence number three (NYSCEF Doc No. 28). On December 6, 2021, Feeley and Spear filed motion sequence number four (NYSCEF Doc No. 34). On February 10, 2022 the Professor defendants filed motion sequence number five (NYSCEF Doc No. 40). While this action has been pending since February 26, 2021, due to the filing of these motions, no answers have yet been interposed and no discovery has taken place. Oral argument of these four motions was held before the court on June 14, 2023.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), "the pleading is to be afforded a liberal construction," and a court must "accept the facts as alleged in a complaint as true accord [the] plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; see also Simkin v Blank, 19 N.Y.3d 46, 52 [2012]; EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005]). "[T]he court must assume that [the complaint's] allegations are true..., and must deem the complaint to allege whatever can be inferred from its statements by fair and reasonable intendment, however imperfectly, informally or illogically facts may be stated therein" (Barrows v Rozansky, 111 A.D.2d 105, 107 [1st Dept 1985] [internal quotation marks omitted]).
"[A] motion to dismiss made pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (East Hampton Union Free School Dist. v Sandpebble Builders, Inc., 66 A.D.3d 122, 125 [2d Dept 2009], affd 16 N.Y.3d 775 [2011], quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2d Dept 2006]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc., 5 N.Y.3d at 19).
Plaintiffs allege that CUNY has engaged in employment discrimination against them based on the fact that they are Orthodox Jews and it has retaliated against them for opposing these discriminatory practices. "[The] NYSHRL and [the] NYCHRL prohibit employment discrimination on the basis of religion and [prohibit] retaliation against an employee for opposing discriminatory practices" (Reichman v City of New York, 179 A.D.3d 1115, 1116 [2d Dept 2020], lv denied 36 N.Y.3d 904 [2021]; see also Executive Law § 296 [1], [7]; Administrative Code of City of NY § 8-107 [1], [7]; Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 312-313 [2004]...
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