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Supreme Court, Appellate Term, New York.

Mark A. TAYLOR, Plaintiff-Respondent, v. NEW YORK UNIVERSITY MEDICAL CENTER and Peter L. Ferrara, Defendants-Appellants.

Decided: September 10, 2008

Present:  McKEON, P.J., DAVIS, SCHOENFELD, JJ. Gordon & Rees, LLP, New York City (Diane Krebs and Mercedes Colwin of counsel), for appellants. Michael G. O'Neill, New York City, for respondent.

Order (Geoffrey D. Wright, J.) entered March 13, 2006, reversed, with $10 costs, defendants' CPLR 4404(a) motion granted, the verdict set aside, judgment in favor of plaintiff vacated, and judgment granted to defendants as a matter of law.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

 Defendants' CPLR 4404(a) motion to set aside the verdict should have been granted.   Defendants met their burden of rebutting plaintiff's prima facie sexual orientation discrimination case by presenting admissible evidence of a legitimate, independent and nondiscriminatory reason for the termination of plaintiff's employment (Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ).   In this connection, defendants persuasively showed that defendant New York University Medical Center (NYUMC) terminated plaintiff's employment as a result of budgetary concerns and a departmental reorganization.   The unrebutted trial evidence established that the decision to eliminate plaintiff's position was made by one Teresa Bischoff, the executive vice president and deputy provost of NYUMC, who testified that NYUMC was facing economic pressures due to the increasing cost of health care.   Bischoff explained that when she first became executive vice president in 1994, NYUMC eliminated about 150 positions in an effort to remain financially sound and address its budgetary concerns.   Layoffs were a regular subject of discussion at budget meetings, and on the average, 20 positions were eliminated annually.

The record reveals that plaintiff worked exclusively for Martin Begun, the Vice President of External Affairs, until Begun voluntarily left his employment at NYUMC in August 1997.   Plaintiff began working at NYUMC as “special assistant” to Begun in or about 1991.   In an attempt to strengthen or “secure” plaintiff's position in the medical center, Begun made plaintiff the Director of External Affairs in 1993.   However, plaintiff's duties remained the same and he continued to work solely for Begun.   Sometime between 1995 and 1996, Begun placed plaintiff's position on the budget of the public affairs department.   Begun's stated intention was to give plaintiff “a position that would have secured him in the hearts and minds of the leadership.”   While the budget line for plaintiff's position was transferred to the public affairs department, plaintiff continued to report to and work for Begun.   When defendant Ferrara was promoted to Director of Public Affairs in April 1997, he took charge of the department's budget, which included the line for plaintiff's position.   However, plaintiff and one other NYUMC employee on Ferrara's budget did not report to Ferrara and could not be fired by him.

Described by the dissent as “highly respected,” Begun clearly enjoyed a place of prominence within NYUMC's management hierarchy and his departure provided the institution with the opportunity to downsize its external affairs department, which likely would not have occurred but for Begun's departure.   Thus, in anticipation of Begun's impending departure, as well as the departure of Larry Lynn, the vice president of development, Bischoff restructured the external affairs department.   Inasmuch as plaintiff worked exclusively for Begun, whose duties and responsibilities were reassigned, Bischoff determined that plaintiff's position was no longer needed, particularly in light of the continuing economic pressures faced by NYUMC and its impending merger with Mount Sinai Hospital.   Bischoff informed Begun about her decision to eliminate plaintiff's position prior to Begun's departure.   Bischoff's testimony was confirmed by other executives at NYUMC, including the vice president for human resources.

 In addition to demonstrating that NYUMC had a legitimate and nondiscriminatory reason for dismissing plaintiff, defendants presented evidence that the reason was no pretext for acts of discrimination.   NYUMC showed that as a result of the reorganization in 1997, it eliminated one vice president position as well as between 20 to 24 other positions, including the position held by plaintiff.   While the dissent notes the “absence of evidence as to whether the budget of the public affairs department had increased or decreased in the year following plaintiff's termination,” the crucial inquiry is whether the elimination of plaintiff's position resulted from NYUMC's perceived need to reduce its expenses and implement new strategies in the face of increasing economic pressures (see e.g. Alvarado v. Hotel Salisbury, Inc., 38 A.D.3d 398, 833 N.Y.S.2d 25 [2007] ), not whether NYUMC actually streamlined the budget.  “It is not enough for the plaintiff to show that the employer made an unwise business decision or an unnecessary personnel move,” since “the issue is not whether defendants acted with good cause but whether their business decisions would not have been made but for a discriminatory motive” (Ioele v. Alden Press, Inc., 145 A.D.2d 29, 36, 536 N.Y.S.2d 1000 [1989] ).

 In the face of defendants' compelling showing, the burden shifted to plaintiff to prove by a preponderance of the evidence “both that the reason proffered by defendants was false, and that discrimination was the real reason [internal citations omitted]” (Stephenson v. Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 14 A.D.3d 325, 787 N.Y.S.2d 289 [2005], affd. 6 N.Y.3d 265, 811 N.Y.S.2d 633, 844 N.E.2d 1155 [2006] ).   Plaintiff failed to carry either prong of his evidentiary burden.   The crux of plaintiff's claim is that defendant Ferrara, who supposedly was “anti-gay,” was responsible for the decision to terminate plaintiff's employment.   At the time that plaintiff's position was eliminated in 1997, Ferrara, then the Director of Public Affairs, concededly did not work with nor supervise plaintiff. While plaintiff's evidence may have shown that there was no love lost between plaintiff and Ferrara, “mere personality conflicts must not be mistaken for unlawful discrimination” (Forrest v. Jewish Guild, 3 N.Y.3d 295, 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).   Accepting plaintiff's assertion that “there was some conflict or problem” with Ferrara, the record evidence, even viewed in the light most favorable to plaintiff, does not support the inference that Ferrara made the decision to terminate plaintiff's position.   To the contrary, the evidence shows that the decision was solely made by Bischoff.   The fact that Ferrara signed plaintiff's payroll termination form was not evidence of Ferrara's participation in the decision to eliminate plaintiff's position since Bischoff explained, and the documentary evidence demonstrated, that NYUMC's procedures required department heads to sign such forms.   While the dissent finds “damaging” that “plaintiff was terminated only after four months after plaintiff was placed under Ferrara's budget” (dissenting op at 7), by Begun's own account, the line for plaintiff's position was placed on the budget of the public affairs department in “February 1995” or “somewhere between 1995 and 1996,” prior to Ferrara becoming the director of that department.   When Ferrara assumed his position as director of public affairs, he had no supervisory control over plaintiff.

 Even assuming that Ferrara participated in the decision making, there was no showing of a causal relationship between the anti-gay conduct attributed to, and comments allegedly uttered by, Ferrara in 1995, and the elimination of plaintiff's position in 1997, that could conceivably demonstrate that plaintiff's termination occurred under circumstances giving rise to an inference of discrimination.  “Statements by nondecisionmakers or statements by decisionmakers unrelated to the decision process itself” are insufficient to establish discriminatory intent (Forrest v. Jewish Guild, 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998, quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 [1989] [O'Connor, J., concurring] ).   To be sure, some of the conduct attributed to Ferrara is inexcusable.   However, there was no showing that NYUMC condoned or acquiesced in Ferrara's conduct, which, according to plaintiff, commenced soon after the 1994 publication of a book detailing plaintiff's intimate relationship with the late composer Leonard Bernstein.   Unfortunately, as often happens in the workplace, it appears that plaintiff was the subject of “gossip by the water cooler.”   However, this occurred a full two years before plaintiff's discharge and there is nothing in the record to suggest that his work status was in anyway affected by the disclosure of his sexual orientation.   Indeed, the record conclusively establishes that NYUMC had a vigorously enforced anti-discrimination policy, designed to prohibit harassment or discrimination on the basis of sexual orientation, as well as a policy on cultural diversity and equal opportunity affirmative action.   When plaintiff filed a complaint with NYUMC's human resources department in 1995 about a comment made by Ferrara and perceived by plaintiff as discriminatory, NYUMC promptly met with Ferrara, counseling him about NYUMC's anti-discrimination policy, and thereafter followed up with plaintiff to ensure that there were no further problems.   Notably, plaintiff never filed another complaint until after his termination.

In the final analysis, plaintiff's case rests entirely on the supposition that he was terminated because Ferrara, the sole actor accused of discrimination, somehow managed to convince the executives at NYUMC to discharge plaintiff.   However, there is an evidentiary gap in plaintiff's case which can only, impermissibly, be filled by conjecture.   There was no evidence rebutting defendants' legitimate reason for dismissal and more importantly, no proof showing that the real reason behind NYUMC's decision to eliminate plaintiff's position was discriminatory animus (see e.g. Jordan v. Bates Adv. Holdings, Inc. 46 A.D.3d 440, 848 N.Y.S.2d 127 [2007] ).   Thus, viewing the evidence in the light most favorable to plaintiff, there is no valid line of reasoning and permissible inferences that could have lead rational jurors to the conclusion reached by the jury on the basis of the evidence presented at trial (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ).

 Were we not dismissing outright, we would remand for a new trial based on the improper admission of evidence which had little or no bearing on the events leading to plaintiff's termination.   For example, although plaintiff did not allege a hostile work environment claim, he was permitted to elicit substantial evidence about incidents, most of which were too remote in time, that did not relate to the decision to eliminate plaintiff's position, and about conduct attributed to a limited number of coworkers, none of whom participated in the discharge decision.   Also improperly admitted, over strenuous objection by defense counsel, was evidence of an incident involving Ferrara's alleged inappropriate comments to a female worker, and evidence of the fact that NYUMC paid for Ferrara's legal fees, suggesting that NYUMC was condoning any improper conduct by Ferrara.   The evidentiary rulings unfairly prejudiced defendants' case and would warrant a new trial.   The record shows that the defense timely objected to the majority of the evidentiary errors during trial, thus preserving the issue for appellate review (see CPLR 4017, 5501[a][3];  Horton v. Smith, 51 N.Y.2d 798, 433 N.Y.S.2d 92, 412 N.E.2d 1318 [1980] ).   Contrary to plaintiff's contention, appellate review is not precluded by the fact that defendants' post-trial motion to set aside the verdict did not expressly rely upon the evidentiary errors to which timely objections were made (see Rosso v. Beer Garden, Inc., 12 A.D.3d 152, 784 N.Y.S.2d 60 [2004] ).

Lastly, were we not dismissing, we would find that the evidence did not warrant an award of punitive damages (see generally Kolstad v. American Dental Assn., 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 [1999] ) and that the award for damages for mental anguish, even as reduced by the trial court, was excessive and unsupported by the evidence (see Bronx County Med. Group v. Lassen, 233 A.D.2d 234, 650 N.Y.S.2d 113 [1996];  Boutique Industries, Inc. v. New York State Div. of Human Rights, 228 A.D.2d 171, 643 N.Y.S.2d 986 [1996] ).

In my opinion, the decision of my colleagues in the majority to set aside the jury's determination and direct a verdict in favor of the defendants improperly usurps the jury's fact-finding function and injects their own view of the evidence into the proceedings based upon their disagreement with the jury's findings rather than upon their desire to meet this court's obligation to ensure a fair verdict.   For those reasons, I respectfully dissent and hold that the trial court's denial of defendants' motion pursuant to CPLR § 4404(a)should be affirmed as defendants did not demonstrate their entitlement to judgment as a matter of law or that the verdict was against the weight of the evidence.

The power of the court to set aside a jury verdict is discretionary and such discretion must be exercised cautiously (see, Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184 [2d Dept.1985] ).   Such authority is codified in CPLR § 4404(a) which provides, as relevant here, that “the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence.”

In order to sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law a court is required to find upon the evidence presented that there is “no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury” (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1985] ).   In essence, a verdict should not be directed unless there is only one possible conclusion which could be reached based upon the evidence (see generally, McDermott v. Coffee Beanery, 9 A.D.3d 195, 210, 777 N.Y.S.2d 103 [1st Dept.2004] [dissenting opn. Saxe, J.] ).

The New York City Human Rights Law (N.Y.C. Administrative Code § 8-107[1] [a] ), under which plaintiff is pursuing his claims, provides that it is an unlawful discriminatory practice for an employer or employee to discharge a person from employment based upon that person's actual or perceived sexual orientation.   It is well settled that the plaintiff in an employment discrimination action bears the initial burden of establishing a prima facie case by demonstrating that s/he is a member of a protected class, that s/he was qualified to hold the position from which s/he was discharged and that the discharge occurred under circumstances giving rise to an inference of discrimination (see, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 [1973] ).   Once a prima facie case has been established, a presumption arises that the employer unlawfully discriminated against the plaintiff and the burden shifts to the defendant-employer to rebut the presumption by articulating some legitimate, non-discriminatory reasons to support its employment decision.   If such evidence is produced to rebut the presumption of discrimination, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's reason was a pretext for discrimination (see, Ferrante v. American Lung Association, 90 N.Y.2d 623, 629-630, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ).

Here, the Civil Court (Faviolo Soto, J.)in ruling on defendants' motion for summary judgment denied so much of such motion as sought summary judgment dismissing plaintiff's first cause of action for discrimination based upon sexual orientation.   This court affirmed that part of the Civil Court's order finding based upon the parties' submissions that there were issues of fact as to whether defendant New York University Medical Center's (“NYUMC”)stated reason for plaintiff's termination was just a pretext for discrimination.   The Appellate Division, First Department unanimously affirmed this court's order stating:  “While defendants have set forth evidence of a legitimate, independent, nondiscriminatory reason to support the decision to terminate plaintiff's employment [citation omitted], specifically, a reorganization [citation omitted], plaintiff has responded with evidence sufficient to raise a triable question of fact as to whether the proffered reason is a mere pretext for discrimination [citation omitted]” (Taylor v. New York Univ. Med. Ctr., 2 A.D.3d 244, 768 N.Y.S.2d 322 [1st Dept.2003] ).   It is generally held that the denial of a motion for summary judgment is not an adjudication on the merits and establishes nothing except that summary judgment is not warranted based upon the proof before the court at that time(see, Metropolitan Steel Industries v. Perini, 36 A.D.3d 568, 828 N.Y.S.2d 395 [1st Dept.2007];  but see, In Re Sakow, 45 A.D.3d 314, 845 N.Y.S.2d 39 [1st Dept.2007];  American Guarantee & Liability Ins. Co. v. CNA Reins. Co. Ltd., 42 A.D.3d 338, 839 N.Y.S.2d 740 [1st Dept.2007] ) Thus, while sound policy and precedent militates against the application of the law of the case doctrine to the Appellate Division's factual determinations on the prior appeal (id.), the plaintiff appears to acknowledge that defendants' trial evidence sufficiently rebutted plaintiff's prima facie showing of discrimination and, therefore, such issue will not be reexamined here.   Hence, the key issue on this appeal is whether plaintiff proved by a preponderance of the evidence that defendants' stated economic reasons for terminating plaintiff's employment were false and a pretext for discrimination and that discrimination based upon sexual orientation was the real reason behind his termination.

Contrary to defendants' contentions and the findings of the majority, there was ample evidence that defendant Ferrara was responsible for instigating NYUMC's decision to discharge plaintiff and that plaintiff's sexual orientation was a determining factor in that decision.   The testimony of plaintiff's highly respected superior Martin Begun, NYUMC's Vice President of External Affairs until his retirement in August 1997, indicated that plaintiff's performance while employed at NYUMC was outstanding and exceptional.   There was substantial evidence that after a biography of the composer Leonard Bernstein which disclosed plaintiff's homosexual relationship with Bernstein was circulated among staff at NYUMC plaintiff was excluded from meetings that he had previously attended. Plaintiff was also subjected to insulting gestures and comments, many of them initiated by defendant Ferrara, in derogation of plaintiff's homosexuality.

Particularly damaging to defendants' reasoning that plaintiff was laid off for financial reasons was the testimony of Agile Faust, the Executive Assistant to Myra Biblowit, the Vice President for External Affairs to whom defendant Ferrara reported, that when asked by Biblowit about plaintiff's job description Ferrara responded that plaintiff “did nothing”;  plaintiff's testimony that just before he was terminated Biblowit told plaintiff that it was not going to work out between him and defendant Ferrara thereby implying that the termination was based upon personal hostility and anti-gay animus;  Ferrara's initials on plaintiff's payroll termination form which could be viewed as evidence of Ferrara's involvement in plaintiff's termination especially since none of defendants' witnesses could identify the initials next to notations on the same form that indicated plaintiff was being laid off and would not be rehired and in view of Ferrara's well-known hostility towards plaintiff stemming from plaintiff's homosexuality.   The totality of the circumstances reflected in the trial testimony concerning defendant Ferrara's conduct toward plaintiff makes eminently clear that, contrary to the suggestion in the majority's opinion, Ferrara's hostility towards plaintiff elevated it above a mere personality conflict.   Rather, Ferrara's behavior was such that it overstepped appropriate bounds in a professional work environment and clearly reflected his distaste for homosexuals.   Indeed, even more damaging was testimony that after approximately six years as an employee of NYUMC plaintiff was terminated only four months after plaintiff was placed under Ferrara's budget.

Moreover, although defendants contended that after Begun's retirement and plaintiff's termination it was saving two salaries, there was evidence that NYUMC continued to pay Begun's severance as well as the salary of Biblowit who had partially replaced Begun and an absence of evidence as to whether the budget of the Public Affairs Department had increased or decreased in the year following plaintiff's termination.   Upon review of all of the evidence adduced at trial, I am of the opinion that viewing the evidence in a light most favorable to the plaintiff there is a valid line of reasoning and permissible inferences which could lead rational men and women to the conclusion reached by the jury that plaintiff's termination was based upon his sexual orientation and not on budgetary considerations.

I also reject the defendants' alternative argument, to wit, that a new trial should be ordered on the grounds that the verdict was against the weight of the evidence.   A verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the adverse party that the jury could not have reached the verdict on any fair interpretation of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d supra at 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   In this regard, great deference should be accorded by appellate courts to the jury's fact-finding determination since having seen and heard the witnesses and observed their demeanor at trial the jury is in the best position to assess their credibility (see, McDermott v. Coffee Beanery, 9 A.D.3d supra at 206-207, 777 N.Y.S.2d 103).   Upon the testimony as detailed above, the jury was entitled to credit the testimony of plaintiff's witnesses and could have reasonably resolved conflicting testimony of the parties' respective witnesses in favor of plaintiff to support its finding that defendants terminated plaintiff based upon sexual orientation, and that Ferrara played a determinative role in the decision to terminate plaintiff.   Here, the majority's opinion, substitutes its own opinion of the evidence for that of the jury and thereby improperly intrudes upon the jury's fact-finding function.

With respect to the introduction of evidence which defendants argue deprived them of a fair trial and which my colleagues in the majority believe would merit a new trial, any error with respect thereto has not been preserved for appellate review.

Turning then to the jury's award of damages, there was sufficient evidence to demonstrate that plaintiff's termination was in violation of the City Humans Right Law and motivated by evil motive or intent so as to support the punitive damage award (see, Umansky v. Masterpiece International, 276 A.D.2d 692, 693, 715 N.Y.S.2d 638 [2d Dept.2000] ).   Nor does the award of compensatory damages as reduced by the trial court materially deviate from what is reasonable compensation (see, McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167 [1st Dept.1998] ).