Margerum v. City of Buffalo

• Decision Date: 29 April 2011
• Citation: 2011 N.Y. Slip Op. 03461,83 A.D.3d 1575,921 N.Y.S.2d 457
• Parties: Eugene MARGERUM, Anthony Hynes, Joseph Fahey, Timothy Hazelet, Peter Kertzie, Peter Lotocki, Scott Skinner, Thomas Reddington, Timothy Cassel, Matthew S. Osinski, Mark Abad, Brad Arnone, and David Denz, Plaintiffs–Respondents,v.CITY OF BUFFALO, City of Buffalo Department of Fire, and Leonard Matarese, Individually and as Commissioner of Human Resources for City of Buffalo, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1575

921 N.Y.S.2d 457

2011 N.Y. Slip Op. 03461

Eugene MARGERUM, Anthony Hynes, Joseph Fahey, Timothy Hazelet, Peter Kertzie, Peter Lotocki, Scott Skinner, Thomas Reddington, Timothy Cassel, Matthew S. Osinski, Mark Abad, Brad Arnone, and David Denz, Plaintiffs–Respondents,

v.CITY OF BUFFALO, City of Buffalo Department of Fire, and Leonard Matarese, Individually and as Commissioner of Human Resources for City of Buffalo, Defendants–Appellants.

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

April 29, 2011.

Hodgson Russ LLP, Buffalo (Joshua Feinstein of Counsel), for Defendants–Appellants.Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Plaintiffs–Respondents.PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

Plaintiffs, 13 firefighters employed by defendant City of Buffalo Department of Fire (Fire Department), commenced this action alleging that defendants discriminated against them by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that plaintiffs, who were next in line for promotion, were Caucasian. On a prior appeal, we determined that Supreme Court erred in granting plaintiffs' cross motion for partial summary judgment on liability but that the court properly denied defendants' motion to dismiss the complaint ( see Margerum v. City of Buffalo, 63 A.D.3d 1574, 880 N.Y.S.2d 820). Shortly after our decision therein, the United States Supreme Court decided a similar employment discrimination case, Ricci v. DeStefano, ––– U.S. ––––, ––––, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490, in which it concluded that, “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” The Court further stated that “[a]n employer may defend against [such] liability by demonstrating that the practice is ‘job related for the position in question and consistent with business necessity’ ” ( id. at 2673). We thereafter denied the motion of defendants for leave to renew their motion to dismiss the complaint and the cross motion of plaintiffs for leave to renew their motion for partial summary judgment on liability ( see Margerum v. City of Buffalo, 66 A.D.3d 1502, 886 N.Y.S.2d 63).

Plaintiffs subsequently moved for partial summary judgment on liability before ...