Jeffrey Lax, et al., plaintiffs, v. City University of New York, respondent, Dominic Wetzel, et al., appellants, et al., defendants. (2026)

Submitted—October 23, 2025

DECISION & ORDER

W/

In an action, inter alia, to recover damages for hostile work environment and retaliation, the defendants Katherine Perea and Dominic Wetzel appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated June 28, 2024.  The order granted the motion of the defendant City University of New York pursuant to CPLR 3211(a)(7) to dismiss those defendants' second and third cross-claims.

ORDERED that the order is affirmed, with costs.

In February 2021, the plaintiffs commenced this action against, among others, the defendants Katherine Perea and Dominic Wetzel, the defendant City University New York (hereinafter CUNY), their employer, individual co-workers also employed by CUNY, their union, and the union president, the defendant Barbara Bowen, inter alia, to recover damages for religious discrimination.  The plaintiffs alleged, among other things, that the defendants engaged in discrimination against them in the workplace on the basis of the plaintiffs' religion.  Perea and Wetzel answered and asserted three cross-claims against CUNY, sounding in indemnification, First Amendment retaliation, and breach of contract.  Thereafter, CUNY moved pursuant to CPLR 3211(a)(7) to dismiss their second and third cross-claims.  Perea and Wetzel opposed.  In an order dated June 28, 2024, the Supreme Court granted CUNY's motion.  Perea and Wetzel appeal.

Generally, on a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the complaint is afforded a liberal construction, the allegations are accepted as true, the plaintiff is accorded the benefit of every favorable inference, and the court determines whether the facts as alleged fit within any cognizable legal theory (see Connolly v. Long Is. Power Auth., 30 NY3d 719, 728;  Leon v. Martinez, 84 N.Y.2d 83, 87–88).

A public employee who makes a First Amendment claim of retaliation under 42 USC § 1983 must show that:  (1) the speech addressed a matter of public concern, (2) the employee suffered an adverse employment decision, and (3) a causal connection exists between the employee's speech and the adverse employment decision, so that it can be said that the speech was a motivating factor in the adverse employment action (see Cioffi v Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F3d 158, 162 [2d Cir] ).

“In the First Amendment context, plaintiffs need not demonstrate a material change in employment terms or conditions in order to establish that they were subjected to an adverse employment action;  rather, plaintiffs need only show that the retaliatory conduct in question ‘would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights' ” (Nixon v. Blumenthal, 409 Fed Appx 391, 392 [2d Cir], quoting Zelnik v. Fashion Inst. of Tech., 464 F3d 217, 225 [2d Cir.] ).

Here, the Supreme Court properly granted that branch of CUNY's motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cross-claim on the ground that Perea and Wetzel failed to sufficiently allege a cause of action to recover damages for First Amendment retaliation (see Bein v. County of Nassau, 118 AD3d 650, 651;  Cozzani v. County of Suffolk, 84 AD3d 1147, 1147).  Perea and Wetzel likewise failed to sufficiently allege the existence of a contract upon which they could rely to sustain their third cross-claim, alleging breach of contract (see Maas v. Cornell Univ., 94 N.Y.2d 87, 94).

Accordingly, the Supreme Court properly granted CUNY's motion pursuant to CPLR 3211(a)(7) to dismiss the second and third cross-claims of Perea and Wetzel.

DUFFY, J.P., DOWLING, HOM and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court