Margerum v. City of Buffalo
| Decision Date | 31 March 2017 |
| Docket Number | 278 CA 16-01325. |
| Citation | 50 N.Y.S.3d 749,148 A.D.3d 1755 |
| Parties | Eugene MARGERUM, Joseph Fahey, Timothy Hazelet, Peter Kertzie, Peter Lotocki, Scott Skinner, Thomas Reddington, Timothy Cassel, Matthew S. Osinski, Mark Abad, Brad Arnone, David Denz, Plaintiffs–Respondents, et al., Plaintiff, v. CITY OF BUFFALO, City of Buffalo Department of Fire, Defendants–Appellants, and Leonard Matarese, Individually and as Commissioner of Human Resources for City of Buffalo, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Hodgson Russ LLP, Buffalo (Joshua Feinstein of Counsel), for Defendants–Appellants.
Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Plaintiffs–Respondents.
PRESENT: PERADOTTO, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
Plaintiffs, 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. The eligibility lists were generated following civil service examinations in 1998 and 2002. Because minorities fared poorly on those examinations, there were few, if any, minority applicants on the eligibility lists. Men of Color Helping All Society, Inc. (MOCHA), an organization of African–American firefighters employed by the Fire Department, commenced two actions in federal court alleging that the 1998 and 2002 examinations for the position of lieutenant were discriminatory.
In 2005 and 2006, while the federal actions were pending, defendant Leonard Matarese, then Commissioner of Human Resources for defendant City of Buffalo (City), decided to allow the eligibility lists for all supervisory positions that were generated from the 2002 examinations to expire without granting a typical one-year extension. In addition to prompting plaintiffs to commence this action, that decision spawned related CPLR article 78 proceedings (see Matter of Hynes v. City of Buffalo, 52 A.D.3d 1216, 860 N.Y.S.2d 714 ; Matter of Hynes v. City of Buffalo, 52 A.D.3d 1217, 858 N.Y.S.2d 624 ) and arbitration proceedings (see Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 [City of Buffalo], 79 A.D.3d 1737, 913 N.Y.S.2d 611, lv. dismissed 17 N.Y.3d 854, 930 N.Y.S.2d 549, 954 N.E.2d 1175, rearg. denied 18 N.Y.3d 836, 938 N.Y.S.2d 836, 962 N.E.2d 258 ).
In the context of this action, we initially affirmed that part of an order denying defendants' CPLR 3211 motion to dismiss the complaint but concluded that Supreme Court erred in granting plaintiffs' cross motion for partial summary judgment on liability (Margerum v. City of Buffalo, 63 A.D.3d 1574, 880 N.Y.S.2d 820 [Margerum I ] ). Fourteen days after our decision in Margerum I, the United States Supreme Court issued its decision in Ricci v. DeStefano , 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490, establishing a new test for liability in discrimination cases such as this one. The Court held 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" (id. at 585, 129 S.Ct. 2658 ).
Relying on Ricci's "strong basis in evidence" test, plaintiffs again moved for partial summary judgment on liability. We affirmed the order granting that motion (Margerum v. City of Buffalo, 83 A.D.3d 1575, 921 N.Y.S.2d 457 [Margerum II ] ), and the matter proceeded to trial on damages. On the appeal from the subsequent judgment, we modified the damages award (Margerum v. City of Buffalo, 108 A.D.3d 1021, 970 N.Y.S.2d 132, mod. 24 N.Y.3d 721, 5 N.Y.S.3d 336, 28 N.E.3d 515 [Margerum III ] ). Both parties appealed to the Court of Appeals, which concluded that "whether the City had ‘a strong basis in evidence to believe it [would] be subject to disparate-impact liability’ at the time that it terminated the promotion eligibility lists while the MOCHA litigation was still pending raises issues of fact that cannot be determined on motions for summary judgment" (Margerum III, 24 N.Y.3d at 732, 5 N.Y.S.3d 336, 28 N.E.3d 515 ). The Court found that (id. ). The Court remitted the matter to Supreme Court for further proceedings.
Following the Court of Appeals' remittitur, plaintiffs submitted a request for the production of documents in which they sought disclosure of "[a]ny and all documents Leonard Matarese reviewed and/or relied upon prior to making the decisions to terminate the [applicable] Civil Service promotion lists ... in 2005 and 2006" (emphasis added). Defendants thereafter moved for a protective order in which they sought eight forms of relief. In the first two requests, defendants requested that the court "declin[e] to follow the direction of the Court of Appeals" in Margerum III , 24 N.Y.3d 721, 5 N.Y.S.3d 336, 28 N.E.3d 515 and to stay further proceedings until various issues, including the privilege issues, could be resolved. The court denied those two requests in their entirety.
In the third request, defendants sought to maintain privileges over materials during the discovery process, while allowing them to use the materials at trial under appropriate confidentiality restrictions. In the fourth request, defendants sought to limit the disclosure of privileged or confidential material to three specific subject areas and "to the period prior to February 3, 2006." The court denied those two requests without prejudice to renew.
The court likewise denied the fifth through eighth requests without prejudice to renew, but the parties subsequently entered into an agreement concerning those requests. We thus do not address them on this appeal.
Defendants initially contend that we should conduct a de novo review of the order denying their motion on the ground that their contentions involve questions of law for which we need not defer to the trial court. The cases cited by defendants in support of their contention, however, do not involve discovery disputes (see Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 N.Y.3d 514, 521, 806 N.Y.S.2d 453, 840 N.E.2d 565 ; Bush v. Delaware, Lackawanna & W. R. Co., 166 N.Y. 210, 227, 59 N.E. 838 ). We reject defendants' contention and see no need to depart from our traditional standard of reviewing the order for either an abuse of discretion (see Imanverdi v. Popovici, 109 A.D.3d 1179, 1179, 971 N.Y.S.2d 911 ), or an improvident exercise of discretion (see Kimmel v. State of New York, 302 A.D.2d 908, 908, 754 N.Y.S.2d 923 ).
Contrary to defendants' contention, the court did not abuse its discretion in denying the first and second requests, which essentially asked the court to ignore or disregard the Court of Appeals' decision in Margerum III based on defendants' belief that the Court of Appeals improperly expanded the holding of Ricci. We decline to do so as well. It is axiomatic that the Appellate Division and the trial courts are "court[s] of precedent and [are] bound to follow the holding of the Court of Appeals" (Jiannaras v. Alfant, 124 A.D.3d 582, 586, 1 N.Y.S.3d 332, aff...
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