Hadas Goldfarb, Plaintiff, v. The New York and Presbyterian Hospital and City of New York, Respondents.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Plaintiff's Notice of Motion with Accompanying Affirmations and Exhibits 1
Defendant The New York and Presbyterian Hospital's Opposition to Plaintiff's Motion to Renew and Reargue Motion to Dismiss Affirmative Defenses 2
Affirmation of John Houston Pope in Opposition to Motion to Renew and Reargue Motion to Dismiss Defenses 3
Plaintiff Hadas Goldfarb ("plaintiff" or "Goldfarb"), an Orthodox Jew, was offered a job as a paramedic at the New York and Presbyterian Hospital ("Hospital" or "defendant") in 2015. The Hospital voluntarily contributes its ambulances to the City of New York 911 System, and staffs them with its own personnel.1 These ambulances respond to 911 calls and are dispatched at the direction of the New York City Fire Department ("FDNY"). Goldfarb was terminated during orientation after refusing to comply with the dress code, which required that paramedics wear pants.
Plaintiff then commenced an action against the Hospital and City of New York ("City"), alleging religious discrimination under Title VII of the Civil Rights Act of 1964, as amended,42 U.S.C. 2000c, et seq., and both the State and City Human Rights Law as contained in Executive Law § 296 and § 8-107 of the NYC Administrative Code, respectively. She claims that her "termination was unlawful retaliation for her refusing to compromise her religious principles," and seeks reinstatement to her position at the Hospital.
Prior to discovery, plaintiff moved to dismiss defendant's first and sixth affirmative defenses. The first defense is that the Hospital, as a provider of ambulance and EMT services through the FDNY system, is required to comply with the regulations of the FDNY, which forbid paramedics from wearing skirts while on duty, and that the Hospital acted in accordance with these regulations. In particular, defendants point to Emergency Medical Services Council Operating Guide Procedures ("EMSC OGP") § 200-07, which provides: "T-shirts, hospital "scrub" clothing, shorts or skirts shall not be worn." The sixth defense is that the Hospital was legally prevented from accommodating plaintiff's request to wear a skirt because of these requirements, and that such an accommodation would pose an undue hardship upon the Hospital. This court denied the motion as premature because discovery had not yet been conducted.
Plaintiff moved to reargue and renew, based upon the contract between the City, through the FDNY, and the Hospital (the "contract") produced in discovery. Plaintiff claims that the "no-skirt rule and the OGP which encompasses it (200-07) are conspicuously absent from the contract between FDNY and Hospital while others are included," and that there was "there is simply no FDNY rule prohibiting the wearing of skirts applicable to the Hospital" in the contract. Plaintiff further argues that the no-skirt rule does not prohibit the wearing of skirts over pants.
The motion to reargue is denied. Pursuant to CPLR § 2221(d), a motion for leave to reargue must be based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Plaintiff's motion to reargue is based on matters of fact which were revealed in discovery, and were not offered on the prior motion. Furthermore, plaintiff does not even claim that this court overlooked or misapprehended any matters of fact offered in the prior motion. Accordingly, the motion to reargue is denied.
Pursuant to CPLR § 2221(e), a motion to renew must be based upon "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." Thus, this court must determine whether the terms of the contract affect its previous order denying the motion to dismiss the Hospital's affirmative defenses.
Pursuant to CPLR § 3211(b), to prevail on a motion to dismiss an affirmative defense, plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law." Vita v. New York Waste Servs., LLC, 34 AD3d 559, 559 (2d Dept. 2006). See also, Greco v Christoffersen, 70 AD3d 769, 771 (2d Dept. 2010); Butler v. Catinella, 58 AD3d 145, 147-148 (2d Dept. 2008). This court must also "liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference." Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 (2008); Kingman v ZMoore Ltd., 2018 NY Slip Op 32029(U), 2018 NY Misc. LEXIS 3590, *19-20 (Sup. Ct. NY Co. 2018).
This court finds that there are no new facts included in the contract which would change its prior denial of the motion to dismiss the Hospital's affirmative defenses. Contrary to plaintiff's claim, the newly discovered contract incorporates by reference the no-skirt rule, thus negating any argument that Hospital's affirmative defenses have no merit.
Public Health Law ("PHL") §§ 3000 and 3002 empower the NYC Regional Emergency Medical Services Council ("EMSC"), whose duty is to coordinate the emergency medical services of NYC, to establish rules and regulations establishing safety protocols for ambulance services, including equipment standards. EMSC's general operating procedures dictate that hospital ambulance personnel wear "an appropriate uniform, which shall at all times be near, clean, and professional in appearance," and that "T-shirts, hospital "scrub' clothing, shorts or skirts shall not be worn." EMSC OGP § 200-07.
This guideline is incorporated by reference in the provisions of the contract when read together. Section 6(a) of the Contract provides: "The emergency ambulance service provided pursuant to this Agreement shall be subject to, and operated in full compliance with the FDNY 911 System Provider Guide and all orders, policies, procedures, protocols ... applicable to the provision of such emergency ambulance service, including ... regional protocols." Section 1(r) of the Contract defines "regional protocols" as the "policies and protocols for patient care promulgated by the New York City REMAC 2 and REMSCO." Section 1(t) of the Contract defines "REMSCO" as the EMSC 3 , as defined in the PHL. Section 9(h) of the Contract further provides: "The Hospital shall be responsible for ensuring that all Hospital Ambulance personnel comply with the terms of this Agreement and all Federal, State and City laws, rules, regulations, procedures and protocols governing the provision of emergency ambulance service pursuant to this Agreement." EMSC's general operating procedures dictate that hospital ambulance personnel not wear skirts. Thus, pursuant to the Contract, the Hospital's ambulance personnel, including plaintiff, were required to comply with the "regional protocols" including EMSC OGP § 200-07, which forbids voluntary hospital ambulance personnel from wearing skirts.
In summary, plaintiff has failed to present new facts that would change this court's prior determination denying her motion to dismiss defendant's first and sixth affirmative defenses. The newly discovered evidence; i.e., the contract, does not prove that the Hospitals's affirmative defenses are without merit, and in fact may prove the opposite. Accordingly, plaintiff's CPLR § 2221(3) motion to renew her CPLR § 3211(b) motion to dismiss defense's first and sixth affirmative defenses is denied. This constitutes the Decision and Order of the Court.
DATED: July 18, 2019
KATHERINE A. LEVINE, J.S.C.
1. Prior to March 17, 1996, municipal ambulances were operated by NYC Emergency Medical Services ("EMS") under the NYC Health and Hospitals Corporation, which dispatched both its own ambulances and hospital ambulances. On March 17, 1996, EMS merged with the FDNY, forming the Bureau of EMS. Abramowitz v. NY City Emples. Ret. Sys., 2016 NYLJ LEXIS 4870, *2 (Sup. Ct. Kings. Co. 2016)
2. "REMAC" as the NYC Regional Emergency Medical Advisory Committee, as defined in Article 30 of the PHL.
3. The "O" at the end of this acronym appears to be a typo.
Katherine A. Levine, J.