MABRY v. NEIGHBORHOOD DEFENDER SERVICE INC

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Supreme Court, Appellate Division, First Department, New York.

Reginald Antoine MABRY, Plaintiff–Appellant, v. NEIGHBORHOOD DEFENDER SERVICE, INC., et al., Defendants–Respondents.

Decided: October 13, 2011

GONZALEZ, P.J., ANDRIAS, SAXE, SWEENY, JJ. Reginald Antoine Mabry, appellant pro se. McLaughlin & Stern, LLP, New York (Jacqueline C. Gerrald of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered February 28, 2011, which denied plaintiff's motion for a temporary restraining order to stay the termination of his employment, unanimously affirmed, without costs.

 Plaintiff failed to show that he was likely to succeed on the merits, that he would suffer an irreparable and imminent injury if the injunction were withheld, and that the equities balanced in his favor (see Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44, 532 N.E.2d 1272 [1988] ).   The record is devoid of any specific factual allegations or evidence to support plaintiff's claims of employment discrimination based on age and disability.   Moreover, defendant Neighborhood Defender Service (NDS) demonstrated a legitimate nondiscriminatory reason for plaintiff's termination:  an overall cost-cutting reorganization during which his entire department was eliminated and replaced by an outside vendor (see Cuccia v. Martinez & Ritorto, P.C., 61 A.D.3d 609, 610, 877 N.Y.S.2d 333 [2009], lv. denied 13 N.Y.3d 708, 890 N.Y.S.2d 445, 918 N.E.2d 960 [2009] ).

Nor does the record support plaintiff's claim that his discharge was retaliatory because it occurred on the same day as the filing of his complaint.   To the contrary, plaintiff remained employed with NDS despite having filed claims with the Equal Employment Opportunity Commission and in federal court approximately two years before bringing this action (see Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 450 [S.D.N.Y.2002], affd. 64 Fed.Appx.836 [2d Cir.2003], cert. denied 540 U.S. 1154, 124 S.Ct. 1158, 157 L.Ed.2d 1051 [2004] ).

 Plaintiff has not shown irreparable harm, since he will be entitled to reinstatement and back pay if he prevails on the merits and his termination is annulled (see Matter of Valentine v. Schembri, 212 A.D.2d 371, 622 N.Y.S.2d 257 [1995] ).   Moreover, absent extraordinary circumstances, feelings of degradation and humiliation and damage to reputation and self-esteem do not constitute irreparable harm for the purposes of injunctive relief (see Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193, 199–200 [1985] ).

Plaintiff has not shown that the equities balance in his favor.   If the injunction is withheld and plaintiff ultimately succeeds on the merits, he can be fully compensated for his loss.   However, if NDS is forced to pay both plaintiff's salary and the aforementioned outside vendor's fees and then prevails on the merits, it is unlikely to be able to obtain compensation for its loss (see Winkler v. Kingston Hous. Auth., 238 A.D.2d 711, 713, 656 N.Y.S.2d 421 [1997] ).

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