MYERS v. DOHERTY (2025)

Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered on or about November 15, 2024, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Before commencing this action, plaintiff unsuccessfully asserted related claims in an action in federal court (see Myers v. Doherty, 2021 WL 5599502 [S.D.N.Y., Nov. 30, 2021, No.21Cv219 (PAE)], affd 2022 WL 4477050 [2d Cir. 2022])(the Federal Action).  However, in the Federal Action he did not raise his claims under the New York State Human Rights Law (HRL), even though they are based on the same factual allegations.  Therefore, plaintiff's claims in this action arising under the State HRL are barred by res judicata (see Dedewo v. CBS Corp., 236 A.D.3d 541, 543, 230 N.Y.S.3d 142 [1st Dept. 2025]).

The finding in the Federal Action that plaintiff's claims based on events before January 11, 2018, when he initially filed the Federal Action, are time-barred, is entitled to collateral estoppel effect in this action (see Anandaraja v. Icahn Sch. of Medicine at Mount Sinai, 227 A.D.3d 533, 534, 212 N.Y.S.3d 60 [1st Dept. 2024]).  Even if collateral estoppel did not serve as a procedural bar, we would find that the statute of limitations applied on the merits to the pre-January 11, 2018 claims.  The statute of limitations applicable to plaintiff's New York State HRL and New York City HRL claims is three years (CPLR 214[2];  Administrative Code of City of N.Y. § 8-502[d];  see Herrington v. Metro-North Commuter R.R. Co., 118 A.D.3d 544, 988 N.Y.S.2d 581 [1st Dept. 2014]).  Accordingly, the motion court providently declined to consider claims based on events that occurred more than three years before the commencement of the Federal Action.  We reject plaintiff's invocation of the continuing violation doctrine, because he failed to show that the time-barred allegations comprised “a single continuing pattern of unlawful conduct extending into the limitations period immediately preceding the filing of the complaint” (Campbell v. New York City Dept. of Educ., 200 A.D.3d 488, 489, 160 N.Y.S.3d 12 [1st Dept. 2021] [internal quotation marks and brackets omitted]).  No such pattern exists here, because the conduct complained of between February 2005 and January 2018 consisted of “discrete events, involving different actors and occurring months to years apart” (id.).

Collateral estoppel does not bar plaintiff's claims for discrimination, retaliation, and hostile work environment that are not time-barred, since, notwithstanding the dismissal of the Federal Action, the viability of plaintiff's New York City HRL claim “must be independently assessed under more liberal standards” (Hudson v. Merrill Lynch & Co., Inc., 138 A.D.3d 511, 514, 31 N.Y.S.3d 3 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742476 [2016]).  Further, plaintiff provided new details in the state complaint that were not included in the federal complaint (see 175 E. 74th Corp. v. Hartford Acc. & Indem. Co., 51 N.Y.2d 585, 590 n 1, 435 N.Y.S.2d 584, 416 N.E.2d 584 [1980]).

Nevertheless, the claims fail on the merits, even under a “fair notice” pleading standard (see Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept. 2009]).  Plaintiff did not experience an adverse employment action when he was notified of an impending transfer in October 2019, particularly as the transfer never actually occurred.  Nor was plaintiff constructively discharged.  Reviewing the alleged conduct that falls within the statute of limitations, defendants did not “deliberately create[ ] working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign” (Crookendale v. New York City Health & Hosps. Corp., 175 A.D.3d 1132, 1132, 107 N.Y.S.3d 282 [1st Dept. 2019] [internal quotation marks omitted]).

Furthermore, while the New York City HRL provides for a broader “treated less well” standard than the adverse action analysis, plaintiff has not demonstrated that he was treated “less well than other employees because of [his] protected status;  or that discrimination was one of the motivating factors” for defendants' conduct (Chin v. New York City Hous. Auth., 106 A.D.3d 443, 445, 965 N.Y.S.2d 42 [1st Dept. 2013], lv denied 22 N.Y.3d 861, 2014 WL 591245 [2014]).

Plaintiff also failed to sufficiently plead a retaliation claim, as the allegations fail to show a causal or temporal connection between any protected activity and an adverse action taken by defendant (Lively v. Wafra Inv. Advisory Group, Inc., 211 A.D.3d 432, 433, 180 N.Y.S.3d 92 [1st Dept. 2022]).  Plaintiff's hostile work environment claim, which was improperly raised for the first time in his opposition to defendants' motion, also fails on the merits.  Even assuming the alleged acts or omissions amounted to more than petty slights and trivial inconveniences (Williams v. New York City Hous. Auth., 61 A.D.3d 62, 80, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009]), plaintiff's failure to adequately plead discriminatory animus is fatal to his hostile work environment claim (Pelepelin v. City of New York, 189 A.D.3d 450, 451-452, 137 N.Y.S.3d 316 [1st Dept. 2020]).

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