Silo v. City of New York
| Decision Date | 29 November 2022 |
| Docket Number | 16754,Index No. 150372/13,Case No. 2021-04270 |
| Citation | 210 A.D.3d 607,180 N.Y.S.3d 1 |
| Parties | Timothy SILO, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rae Downes Koshetz, New York, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Chloe K. Moon of counsel), for respondent.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered August 2, 2019, after a jury trial, in favor of defendants dismissing the complaint, unanimously affirmed, without costs.
Plaintiff, a former police officer, commenced this action against defendants claiming that he was terminated on the basis of a perceived predisposition to alcoholism, in violation of the State and City Human Rights Laws. Despite plaintiff's argument, the jury's verdict after trial in favor of defendants was not against the weight of the evidence (see Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ; Lopez v. City of New York, 192 A.D.3d 634, 637, 146 N.Y.S.3d 81 [1st Dept. 2021] ). The evidence showed that plaintiff's termination was the result of his unprofessional behavior during an off-duty incident and his dishonesty, evasiveness, and failure to take accountability during subsequent interviews with two Department psychologists. In light of the record, the evidence plaintiff cites of the psychologists’ conclusions that plaintiff was at risk of future alcohol dependency merely "created factual and credibility issues that were properly determined by the jury" ( Rozon v. Schottenstein, 204 A.D.3d 94, 103, 164 N.Y.S.3d 124 [1st Dept. 2022] ).
The trial court properly denied plaintiff's motion to judicially estop defendants from advancing the theory at trial that plaintiff was terminated for poor performance, to deem admitted defendants’ statements in their summary judgment brief, or to issue a jury instruction to that effect. Defendants’ submission, in its summary judgment motion, of a Chief of Personnel memorandum recommending termination, which referenced plaintiff's "defensive, evasive and deceptive" presentation in a psychologist interview, his "tumultuous" and "combative behavior" during the incident, and his lack of "maturity and discipline," put plaintiff on notice that defendants would seek to prove those legitimate, nondiscriminatory reasons at trial. Defendants’ invocation of those...
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