SCOTT v. Cynthia Brann et al., Defendants. (2024)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered on or about March 23, 2022, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Defendants' motion to dismiss was not untimely because the motion court properly declined to enter a default judgment, thereby extending defendants' time to file an answer or otherwise respond to the complaint (see Zwicker v. Emigrant Mtge. Co., Inc., 91 A.D.3d 443, 444, 936 N.Y.S.2d 158 [1st Dept. 2012]).

The motion court correctly granted defendants' motion to dismiss the complaint, as plaintiff has failed to sufficiently allege that her termination occurred under circumstances giving rise to an inference of discrimination (Lively v. Wafra Inv. Advisory Group, Inc., 211 A.D.3d 432, 433, 180 N.Y.S.3d 92 [1st Dept. 2022]).  The complaint alleges in a conclusory fashion that plaintiff's employment was terminated based on her race and gender, but it fails to allege that any decisionmakers made remarks evidencing discriminatory intent, or that other similarly situated employees outside of her protected class were treated more favorably, or any other act or omission giving rise to an inference of discrimination (see Brown v. City of New York, 188 A.D.3d 518, 519, 135 N.Y.S.3d 103 [1st Dept. 2020];  see also Lively, 211 A.D.3d at 433, 180 N.Y.S.3d 92).  In any event, defendants' documentary evidence shows that the Department of Correction (DOC) terminated plaintiff's employment as of right within her probationary period, which had been automatically extended pursuant to 55 RCNY 5.2.8(b) (see Matter of Marshall v. Simon, 160 A.D.3d 648, 649, 74 N.Y.S.3d 580 [2d Dept. 2018]).  Moreover, plaintiff fails to allege that a facially neutral employment practice had a disparate impact on her protected class (see Mete v. New York State Off. of Mental Retardation & Dev. Disabilities, 21 A.D.3d 288, 296–297, 800 N.Y.S.2d 161 [1st Dept. 2005]).

To the extent plaintiff argues that defendants' decision to terminate her employment was arbitrary and capricious, such a claim should have been brought in a CPLR article 78 proceeding (see Sedgwick v. New York City Department of Educ., 215 A.D.3d 607, 608, 188 N.Y.S.3d 33 [1st Dept. 2023]).