Vig v. New York Hairspray Co.
| Decision Date | 15 September 2009 |
| Docket Number | 114613/07,753754754A |
| Citation | 67 A.D.3d 140,885 N.Y.S.2d 74 |
| Parties | JOEL VIG, Appellant, v. THE NEW YORK HAIRSPRAY CO., L.P., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Spizz & Cooper, LLP, Mineola (Harvey W. Spizz of counsel), for appellant.
Proskauer Rose LLP, New York City (Neil H. Abramson and Ian C. Schaefer of counsel), for respondent.
This case requires us to evaluate the sufficiency of a complaint alleging disability discrimination under the New York State Human Rights Law (State HRL) (Executive Law art 15) and the New York City Human Rights Law (City HRL) (Administrative Code of City of NY § 8-101 et seq.) in the context of a motion to dismiss for failure to state a cause of action.
Plaintiff was an actor and musician in defendant's production of the hit musical play Hairspray. Plaintiff filled multiple roles in the production: the principal, Mr. Spritzer, Mr. Pinky, the policeman, the flasher, and a prison guard. He also served as understudy for Harvey Fierstein in his role as Edna Turnblad and for Dick Latessa in his role as Wilbur Turnblad. In addition, plaintiff played the glockenspiel as a musician in the production.
Plaintiff fulfilled these duties for defendant pursuant to two written contracts—an Actors' Equity Association contract and a contract with the Associated Musicians of Greater New York (Musicians Union). Defendant requested that plaintiff perform under the additional contract so that it could comply with the Musicians Union's requirement for the minimum number of musicians required for a Broadway production. As a member of the Musicians Union, and pursuant to the collective bargaining agreement between Union Local 802 and the League of American Theatres and Producers, plaintiff was guaranteed employment for the run of the show.
Plaintiff alleges that he was injured during the course of his employment when, during the opening musical number of a Wednesday matinee, he fell on stage in front of the audience, banging his right knee and twisting the left. Plaintiff alleges that after he completed the performance, he was evaluated by a physical therapist on call in the theater, who advised him not to continue performing until he consulted with a physician.
Plaintiff alleges he consulted with Dr. Phillip Bauman, the orthopedist recommended by defendant, who referred him for an MRI exam that revealed plaintiff had suffered a tear in the meniscus, the cartilage in his left knee. Plaintiff alleges he was able to resume performing that Saturday night after being advised by the physical therapist that he could perform, but could not twist or jump during the show.
Plaintiff further alleges that during the first week of July 2004, after returning from a one-week vacation, he informed the stage manager that he intended to have surgery to repair the injury based on Dr. Bauman's recommendation. Plaintiff claims that the stage manager requested he delay the surgery, and he agreed. Plaintiff alleges that the stage manager then approved the date of August 18, 2004 for the surgery and for medical leave to recover thereafter, but instructed plaintiff to request the leave from Marc Borsak (the company manager), Lon Hoyt (the musical conductor), Clint de Ganon (the house contractor), and Frank Lombardi (the production stage manager). Plaintiff alleges that all these individuals approved his leave.
Prior to his leave, however, plaintiff alleges he was told by Laura Green, defendant's general manager, that under the Actors' Equity contract, he was not eligible for the approved leave. Plaintiff alleges that Green advised him the contract did not permit leave where a performer had less then nine weeks remaining on his contract. Plaintiff was scheduled for the surgery on August 18, 2004, and his contract expired approximately seven weeks after the surgery, in early October. Plaintiff alleges that Green told him that he would be considered terminated from the show as of the date his "approved leave" began, August 17, 2004.
Plaintiff asserts, however, that the Musicians Union took a different position, stating in a letter dated September 1, 2004 that as a "hired member of the orchestra" for the run of the show, he was entitled to and approved for medical leave.
Plaintiff alleges that he had the surgery as scheduled on August 18, 2004, and remained on what he thought was approved medical leave thereafter, receiving $400 per week in workers' compensation benefits and a permanency award from defendant's workers' compensation carrier for his injury.
Plaintiff alleges that Dr. Bauman provided defendant with updates on his condition during his rehabilitation until November 2004, when plaintiff notified Hoyt, de Ganon, Borsak and Green that he intended to return to the production on November 16.
Plaintiff avers that upon arriving at the theater on November 16, 2004, he was advised by the theater manager that Green had directed he not be permitted into the theater to resume his duties.
Plaintiff also alleges that he commenced an arbitration against defendant pursuant to the Musicians Union contract, which guaranteed him employment for the run of the show. The arbitrator found, however, that plaintiff was more of an actor than a musician, and thus was bound by the Actors' Equity contract. The arbitrator then found that plaintiff's Actors' Equity contract had expired in October 2004, and ruled that plaintiff need not be reinstated. Plaintiff initially sought to appeal the arbitrator's decision, but the Musicians Union declined to pursue it.2
In April 2008, defendant again moved to dismiss the complaint for failure to state a cause of action, arguing, as it does now before this Court, that plaintiff provided "no factual basis" to state a claim for disability discrimination, but instead asserted legal conclusions in place of facts. Defendant argued that, as plaintiff has conceded, it allowed him to work every show until he had his surgery, granting him the reasonable accommodation of performing without twisting or jumping, despite the fact that such actions were germane to the show. Defendant further argued that plaintiff's termination occurred not when he was disabled, but rather when he was ready to resume his work.
Plaintiff counters that while he could not say defendant directly told him he was terminated due to his disability, he nonetheless pleaded a prima facie case of disability discrimination. He argues that defendant perceived him to be disabled because of his torn meniscus and the permanency award he has received from workers' compensation. Plaintiff stated he was reasonably able to resume performing at the time of his termination, and that he was terminated without reason or cause.
The court held that plaintiff had failed to state a prima facie claim of disability discrimination, offering only conclusory allegations and failing to plead a causal link between his disability and his termination. The court noted plaintiff's assertion that defendant never gave him any valid reason for termination, and found his conclusion that defendant terminated him because of his disability to be mere speculation.
In considering a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]), the court is required to accept as true the facts as alleged in the complaint, accord the plaintiff the benefit of every favorable inference and strive to determine only whether the facts alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). In addition, employment discrimination cases are themselves generally reviewed under notice pleading standards. For example, under the Federal Rules of Civil Procedure, it has been held that a plaintiff alleging employment discrimination "need not plead [specific facts establishing] a prima facie case of discrimination" but need only give "fair notice" of the nature of the claim and its grounds (Swierkiewicz v Sorema N. A., 534 US 506, 514-515 [2002]). Applying these liberal pleading standards, we find that plaintiff has stated causes of action for violations of both the State and City HRLs based on disability discrimination.4
In making this determination, we note that the State HRL accords greater disability protection than the Americans with Disabilities Act (ADA),5 and that the City HRL provides even broader protections still (see e.g. Reilly v Revlon, Inc., 620 F Supp 2d 524, 541 [SD NY 2009], citing Giordano v City of New York, 274 F3d 740, 753 [2d Cir 2001] []).
Accordingly, to the extent the ADA and the case law thereunder are discussed in our analysis, it is done only to provide interpretative guidance and is not binding on our application of the more stringent protections accorded by the State and City HRLs (see e.g. 42 USC § 12201 [b] []; see also Administrative Code § 8-130 []).6
Executive Law § 296 (1) (a) provides, inter alia,...
To continue reading
Request your trial
-
Welch v. United Parcel Serv. Inc.
...copy of the ADA. Nevertheless, the Court finds that this defense should be applicable to the NYSHRL. See Vig v. N.Y. Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 (1st Dep't) (noting that case law interpreting the ADA provides “interpretative guidance” with respect to claims unde......
-
Miloscia v. B.R. Guest Holdings Llc
...Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019 (1994); see Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 146, 885 N.Y.S.2d 74 (1st Dept. 2009). The term “disability” is defined, under the NYSHRL, as “a physical, mental or medical impairment ... which......
-
O'Halloran v. Metro. Transp. Auth.
...discrimination cases are themselves generally reviewed under notice pleading standards" ( Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept.2009] ).Furthermore, the dissent would erroneously penalize plaintiff, in part, for failing to claim discrimination on......
-
Krause v. Lancer
...standard for asserting an employment discrimination claim adopted by the First Department in Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74, 77 [1st Dept. 2009] should not be followed because in that decision, the First Department relied on the U.S. Supreme Court's......
-
A
...29, 886 N.Y.S.2d 111, 2009 WL 3030206, 2009 N.Y. Slip Op. 06653 (N.Y.A.D. 1 Dept., Sept. 24, 2009); Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 885 N.Y.S.2d 74, 2009 WL 2927701, 2009 N.Y. Slip Op. 06466 (N.Y.A.D. 1 Dept., Sept. 15, 2009); People v. Calderon, 66 A.D.3d 314, 884 N.Y.S......