AKANDE v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered March 3, 2022, which denied plaintiff's motion for a default judgment and granted defendants' cross-motion to dismiss the complaint, unanimously affirmed, without costs.

Supreme Court correctly denied plaintiff's motion for a default judgment.  The motion was predicated on an amended complaint that was returned for correction because it did not contain a full caption;  the Clerk then removed it from the docket and plaintiff never refiled it (see e.g. Braylovskaya v. Skazka Rest., 231 A.D.3d 700, 701, 217 N.Y.S.3d 654 [2d Dept. 2024]).  Under these circumstances, defendants' default cannot be deemed willful or deliberate (see Rector v. BDG Gotham Residential, LLC, 209 A.D.3d 509, 509, 176 N.Y.S.3d 619 [1st Dept. 2022]).  Supreme Court's order recognizes this state's strong public policy favoring litigation of claims on their merits (see Johnson–Roberts v. Ira Judelson Bail Bonds, 140 A.D.3d 509, 509, 34 N.Y.S.3d 421 [1st Dept. 2016]).  Although, as plaintiff notes, CPLR 2101(f) allows courts to freely grant leave to correct nonprejudicial errors of form, we reject plaintiff's invocation of that section under these circumstances, as he was given an opportunity to correct his error and refile the amended complaint but did not do so.

Upon denying plaintiff's motion for default judgment, Supreme Court properly granted defendants' cross-motion to dismiss the complaint.  Even applying the lenient notice pleading standard afforded to discrimination claims, plaintiff has failed to sufficiently allege that the termination of his employment as a correction officer by the New York City Department of Correction (NYDOC) occurred under circumstances giving rise to an inference of discrimination (see Scott v. City of New York, 233 A.D.3d 456, 456, 221 N.Y.S.3d 96 [1st Dept. 2024], citing Lively v. Wafra Investment Advisory Group, Inc., 211 A.D.3d 432, 180 N.Y.S.3d 92 [1st Dept. 2022]).  NYDOC's reason for terminating plaintiff's employment is consistent with documentary evidence showing that he failed to adequately supervise an inmate who engaged in severe self-harm over the course of nearly an hour.  In any event, the documentary evidence also establishes that NYDOC terminated plaintiff's employment as of right within his probationary period, which had been extended after an incident in which he violated NYDOC policy (see id. at 456, 221 N.Y.S.3d 96;  see also Matter of Marshall v. Simon, 160 A.D.3d 648, 649, 74 N.Y.S.3d 580 [2d Dept. 2018]).  To the extent plaintiff argues that NYDOC failed to follow its own procedures in extending his probationary period, plaintiff should have advanced that argument in a CPLR article 78 proceeding rather than an action such as this (see Scott, 233 A.D.3d at 457, 221 N.Y.S.3d 96).

We affirm the dismissal of the Civil Service Law § 75–b claim, but on grounds different from those stated by Supreme Court.  Contrary to Supreme Court's finding, the Court of Claims does not have exclusive jurisdiction over plaintiff's section 75–b claim because the State of New York is not a party to this action (see Court of Claims Act § 9[2];  see Borawski v. Abulafia, 117 A.D.3d 662, 663, 985 N.Y.S.2d 284 [2d Dept. 2014]).  Nevertheless, dismissal of the § 75–b claim is still proper because plaintiff failed to sufficiently plead that he was terminated for complaining of a statutory or government violation or improper governmental action that endangered public health and safety (see Matter of Tenenbein v. New York City Dept. of Educ., 178 A.D.3d 510, 510–511, 111 N.Y.S.3d 844 [1st Dept. 2019];  cf.  Tipaldo v. Lynn, 26 N.Y.3d 204, 208–209, 21 N.Y.S.3d 173, 42 N.E.3d 670 [2015]).  Although the City did not address this issue in its motion to dismiss and Supreme Court dismissed the Civil Service Law § 75–b claim on different grounds, this Court may review the legal argument that plaintiff failed to adequately plead a Civil Service Law § 75–b claim because the issue is determinative and the record on appeal is sufficient to permit review (see Watson v. City of New York, 157 A.D.3d 510, 511, 69 N.Y.S.3d 294 [1st Dept. 2018]).  Indeed, the complaint states plainly that plaintiff's § 75–b claim is based on his filing of an “incident report” detailing the “inaction of the Department's employees” rather than on their violation of a law or regulation (see Belli v. New York City Dept. of Transp., 200 A.D.3d 402, 404, 160 N.Y.S.3d 202 [1st Dept. 2021]).

We have considered plaintiff's remaining contentions and find them unavailing.