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Supreme Court, New York CountyMar 24, 2016
100591/13 (N.Y. Sup. Ct. 2016)
100591/132016 N.Y. Slip Op. 50363



In the Matter of the Application of Herman Cruz, Petitioner, v. Dr. Dora Schriro, Correction Commissioner of the New York City Department of Correction; the New York City Department of Correction; and the City of New York, Respondents.

For Petitioner: Koehler & Isaacs LLP By: Mercedes M. Maldonado, Esq. 61 Broadway, 25th Fl New York, NY 10006 (917) 551-1300 For Respondents: Zachary W. Carter Corporation Counsel of the City of New YorkBy: Yuval Rubinstein, Esq., Assistant Corporation Counsel Adam E. Collyer, Esq., Assistant Corporation Counsel 100 Church St Room 2-115 New York, NY 10007-2601 (212) 356-2467 (212) 356-2473

For Petitioner: Koehler & Isaacs LLP By: Mercedes M. Maldonado, Esq. 61 Broadway, 25th Fl New York, NY 10006 (917) 551-1300 For Respondents: Zachary W. Carter Corporation Counsel of the City of New YorkBy: Yuval Rubinstein, Esq., Assistant Corporation Counsel Adam E. Collyer, Esq., Assistant Corporation Counsel 100 Church St Room 2-115 New York, NY 10007-2601 (212) 356-2467 (212) 356-2473 Michael D. Stallman, J.

In this Article 78 proceeding, petitioner Herman Cruz (Cruz) seeks an order and judgment annulling the termination of his employment as a probationary correction officer, and reinstating him, with back pay and benefits. He alleges that he was discharged based on a disability, and that respondents failed to reasonably accommodate his disability, in violation of the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York [Administrative Code] §-107 (1) (a). Respondents moved (denominated as a cross motion), pursuant to CPLR 3211 (a) (7), for an order dismissing the petition on the grounds that it fails to state a cause of action. Subsequently, without withdrawing their motion to dismiss, respondents also submitted a Verified Answer, seeking dismissal, to which petitioner replied.


The factual circumstances leading up to the termination of petitioner's employment are largely undisputed. Petitioner Cruz was hired by the New York City Department of Correction (DOC) as a Correction Officer, on April 26, 2012, subject to a two-year probationary term. Verified Petition (Petition), ¶ 2. After completing three months of training at the Correction Academy located in Queens, petitioner graduated on August 9, 2012, and was assigned to work at the George R. Vierno Center (GRVC), one of ten jails operated by DOC on Rikers Island (Rikers), which collectively house about 80% of the inmates in DOC custody. Id., ¶¶ 3-5; Verified Answer (Answer), ¶¶ 58-59). In addition to the facilities on Rikers, DOC operates four borough jails, 16 court detention facilities, and three hospital prison wards. Petition, ¶ 5.

Matters in dispute are set forth in the text of the decision as such or as allegations.

During training, petitioner and other trainees were occasionally sent to Rikers for on-site training. Id., ¶ 9. Petitioner spent about 11 training days at Rikers in June, July, and early August 2012, and he alleges that he experienced allergic reactions on several of those occasions. In late June, he experienced hives on his torso, which he describes as "insufficient to seek medical treatment." Id., ¶ 10. In early July, he experienced difficulty breathing after a training exercise involving being sprayed with pepper spray. Id., ¶ 11. In mid-July, after spending several days at Rikers, he saw a doctor about hives and swelling and numbness in his face; an MRI ordered by the doctor to rule out a stroke was normal. Id., ¶¶ 12-14. After attending training at Rikers for a few days at the end of July, Cruz experienced an allergic reaction on August 5, when he was not working, and went to a hospital emergency room; the symptoms subsided by the time he was examined by a doctor, but he was prescribed an "Epipen" to use if he again experienced hives or difficulty breathing. Id., ¶¶ 15-16; see Beth Israel Report, Ex. B to Petition. On August 7, while attending graduation rehearsal at Rikers, he experienced hives and swelling of his face, and, in order to stay for the rehearsal, he used the Epipen to alleviate his symptoms. Petition, ¶ 17.

Petitioner started working at GRVC on August 13, 2012, and, plaintiff claims, he again experienced hives and swelling, which increased over the week. Id., ¶ 19. On August 16, at the beginning of a shift, he had difficulty breathing and went to see a GRVC clinic doctor, reporting hives, a constricted throat, and swollen lips. Id., ¶ 20. After using an Epipen, his symptoms subsided, and he was released from work for the day. Id. He returned to work the next day, without incident, but on August 21, he again, during roll call, had difficulty breathing and noticed facial swelling. Id., ¶¶ 21-22. He went to see a doctor at the GRVC clinic, and, after administering an Epipen, was released from work, advised to see his personal physician, and instructed to report to HMD on August 24 to obtain clearance to return to work. Id., ¶¶ 22-23.

The same day, petitioner went to see an allergist, Dr. Vassallo, and an ear, nose and throat surgeon, Dr. Habib, who told him that he needed surgery to reduce a pharyngeal airway obstruction. Id., ¶¶ 24-25. On August 24, petitioner reported to DOC's Health Management Division (HMD), which placed petitioner on sick leave and advised him to return on August 31 with medical documentation of his diagnosis, treatment, prognosis and work status. Id., ¶ 27. Petitioner returned to HMD with documentation from his treating allergist, who indicated that petitioner had unexplained rash/swelling/throat closure, and recommended that, because he was unable to determine an environmental root cause and the reaction appeared to be associated with work, an alternate work environment should be considered. Id., ¶ 28.

On September 14, petitioner underwent a "uvulectomy," surgery to minimize throat swelling and difficulty breathing during an allergic reaction. Id., ¶ 30. On October 1, petitioner had a follow-up appointment with Dr. Habib, who prepared a report for HMD, which indicated that petitioner had no specific limitations but needed to continue allergy treatment. Id., ¶ 31. Petitioner also, on October 5, met with his allergist, who prepared a report for HMD stating that he could do no further testing as there were no "obvious testable triggers," but, because symptoms were associated with petitioner's work environment, an alternate work environment was recommended. Id., ¶ 32. Petitioner met again with his allergist on October 15, when the doctor reiterated that the origin and environmental cause of petitioner's allergic reaction was unclear but seemed to be associated with work, and his "only recommendation is alternate work environment." Id., ¶ 33; see Dr. Vassallo Report, Ex. L to Pet. The doctor also cleared petitioner to return to work and "resume full activities." Pet., ¶ 34; see Dr. Vassallo Note, Ex. M to Petition.

Petitioner did not return to work after August 21, and remained on approved sick leave until his employment was terminated in December 2012. According to petitioner, despite being cleared to work, HMD refused to consider accommodating him, and forced him to remain on sick leave status. On or about November 13, petitioner submitted a written request, allegedly to GRVC Warden Duffy and HMD Captain Bennett, for a transfer to the Brooklyn Detention Center, because of his allergic reactions associated with Rikers. Petition, ¶ 36; see Cruz Transfer Request, Ex. N to Petition. DOC did not respond to petitioner's request, and, on December 18, 2012, at Warden Duffy's recommendation, DOC terminated petitioner's employment, based on absences of more than 50 days, due to "dermatology;" one occasion of lateness in June 2012; and a disciplinary action for being away from home while on sick leave. Petition, ¶ 37; see DOC Personnel Determination Review, Ex. 2 to Collyer Aff. in Support of Respondents' Cross Motion to Dismiss.


On a motion to dismiss a special proceeding for failure to state a cause of action, under CPLR 7804 (f) or CPLR 3211 (a) (7), "the court must look at the petition/complaint itself, accepting all of its allegations as true, to determine whether a cause of action exists." Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 81 AD3d 145, 148 (3d Dept 2011) (citations omitted), affd in part & mod in part 19 NY3d 106 (2012); see Matter of Lally v Johnson City Cent. Sch. Dist., 105 AD3d 1129, 1131 (3d Dept 2013); Matter of DePaoli v Board of Educ., Somers Cent. Sch. Dist., 92 AD2d 894 (2d Dept 1983). Dismissal is warranted "only if the allegations completely fail to state a claim under any cognizable legal theory." Matter of Zarinfar v Board of Educ. of the City Sch. Dist. of the City of NY, 2013 WL 5923525, *2, 2013 NY Misc LEXIS 5012, *4 (Sup Ct, NY County 2013), citing Leon v Martinez, 84 NY2d 83, 87-88 (1994); see Webb-Weber v Community Action for Human Servs., Inc., 23 NY3d 448, 453 (2014); 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 (2002).

Accepting petitioner's factual allegations as true, again noting that most of them are undisputed, and according petitioner the benefit of every possible favorable inference, as the court must (see Webb-Weber, 23 NY3d at 453; Leon, 84 NY2d at 87), and for the reasons that follow, the petition sufficiently alleges a claim for disability discrimination under the NYCHRL. Therefore, respondents' cross motion to dismiss the petition is denied.


As respondents have submitted an answer, with supporting affidavits and documents, addressing the discrimination issue, the court further considers the merits of the petition and whether a hearing is necessary. See Matter of Battaglia v Schuler, 60 AD2d 759, 759-760 (4th Dept 1977) (like a summary judgment motion, Article 78 may be determined on the parties' submissions and judgment granted unless triable issues of fact raised); Hill v Klein, 2012 WL 2648272, 2012 NY Misc LEXIS 3115, *1-2, 2012 NY Slip Op 31710(U) (Sup Ct, NY County 2012) (same); see also Matter of Che Lin Tsao v Kelly, 28 AD3d 320, 321 (1st Dept 2006) (hearing necessary "where an issue of a substantial nature is raised regarding the probationary employee's dismissal); see generally Matter of Cohen v Koehler, 82 NY2d 882, 884 (1993) (no hearing unless triable issue of fact raised as to bad faith); Matter of Miller v Ravitch, 60 NY2d 527, 533 (1983) (same).


Generally, as respondents correctly contend, a probationary employee may be dismissed without a hearing or statement of reasons, and "for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason.'" Matter of Duncan v Kelly, 9 NY3d 1024, 1025 (2008), quoting Matter of Swinton v Safir, 93 NY2d 758, 762, 763 (1999). The burden is on the petitioner to demonstrate that the employer acted in bad faith, that is, "for a constitutionally impermissible purpose or in violation of statutory or decisional law." Matter of York v McGuire, 63 NY2d 760, 761 (1984); see Wilson v City of New York, 100 AD3d 453, 453 (1st Dept 2012); Matter of Shammas v Kelly, 2012 WL 5199002, 2012 NY Misc LEXIS 4890, *5, 2012 NY Slip Op 32607(U) (Sup Ct, NY County 2012); Matter of Card v Sielaff, 154 Misc 2d 239, 244 (Sup Ct, NY County 1992).

"The broad discretion enjoyed by those who are empowered to discharge probationary employees is not unbridled" (Kroboth v Sexton, 160 AD2d 126, 127 [1st Dept 1990]; see Matter of Castillo v Schriro, 49 Misc 3d 774, 787-788 [Sup Ct, NY County 2015]), however, and employment decisions affecting the terms and conditions of a probationary employee's employment may not be based on unlawful discrimination. See Matter of Antonsen v Ward, 77 NY2d 506, 512-513 (1991) (termination of probationary employee may not be based on discrimination prohibited by state human rights law); Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 NY2d 623, 630 (1988) (employee could be discharged "for any reason or for no reason, but not a . . . [discriminatory] reason"); Matter of Miller, 60 NY2d at 531 (same). Here, petitioner alleges he was discriminated against based on disability, in violation of the NYCHRL. Such a violation, if shown, would, "by definition," demonstrate bad faith. Matter of Card, 154 Misc 2d at 244.


Under the NYCHRL, it is an unlawful discriminatory practice for an employer to fire or refuse to hire or employ or otherwise discriminate in the terms, conditions or privileges of employment, because of, as relevant here, an individual's actual or perceived disability. Administrative Code § 8-107 (1) (a). As is now well recognized, the NYCHRL explicitly requires that its provisions be construed liberally to accomplish the statute's " uniquely broad and remedial' purposes, which go beyond those of counterpart State or federal civil rights law." Williams v New York City Hous. Auth., 61 AD3d 62, 66 (1st Dept 2009), citing Administrative Code § 8-130; see Romanello v Intesa Sanpaolo S.p.A., 22 NY3d 881, 884-885 (2013); Albunio v City of New York, 16 NY3d 472, 477-478 (2011). To that end, all provisions of the NYCHRL must be "construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Id. at 477-478), and courts must engage in an "independent liberal construction analysis" of claims brought under the NYCHRL. Williams, 61 AD3d at 66; see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 (1st Dept 2011); Loeffler v Staten Is. Univ. Hosp., 582 F3d 268, 278 (2d Cir 2009). Judicial interpretations of state and federal civil rights statutes, therefore, provide guidance "only to the extent that the counterpart provisions are viewed as a floor below which the City's Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise.'" Williams, 62 AD3d at 66-67 (internal citation omitted); see Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 21 NYS3d 221, 226 n 5 (1st Dept 2015); Bennett, 92 AD3d at 37 n 6.

An employee makes a prima facie showing of disability discrimination under the NYCHRL, as under the New York State Human Rights Law (NYSHRL) (Executive Law § 292 et seq.), "if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated." Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 (2014); see Matter of McEniry v Landi, 84 NY2d 554, 558 (1994); Vig v New York Hairspray Co., L.P., 67 AD3d 140, 147 (1st Dept 2009); Phillips v City of New York, 66 AD3d 170, 178.


"Disability" is broadly defined by the NYCHRL as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." Administrative Code § 8-102 (16) (a); see Jacobsen, 22 NY3d at 834-835; Romanello v Intesa Sanpaolo S.p.A., 22 NY3d 881, 885 (2013); Phillips, 66 AD3d at 181. A "physical, medical, mental or psychological impairment" means "an impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system." Administrative Code § 8-102 (16) (b) (1).

Respondents argue, in support of their motion to dismiss, that petitioner has not made a showing that he has a disability under the statute, because he experienced only periodic, minor allergic reactions, and no medical professional has observed petitioner having an allergic reaction. See Respondents' Memorandum of Law in Support of their Cross Motion (Memo in Support of Cross Motion), at 9-10. In support of their answer, respondents further argue that petitioner cannot prove that he has a disability because he has identified only symptoms, and not the "underlying impairment' itself;" because his physicians have not determined the cause of his symptoms; and because there is no evidence that petitioner's symptoms were caused by Rikers Island. Memorandum of Law in Support of Respondents' Answer (Memo in Support of Answer), at 4-5; see Affidavit of Patricia Feeney, Ex. L to Answer.

The court has found no cases addressing the question of whether an allergy or allergic reaction, such as hives, is a disability under the NYCHRL, but, under the less protective NYSHRL, the Court of Appeals found that dermatitis, i.e. a skin rash, was "a physical impairment resulting from physiological or anatomical conditions," but was excluded from the statutory definition of disability under the law in effect at the time, because it was found to be "related" to plaintiff's ability to work, when the statute covered only disabilities that were "unrelated" to the ability to work. Matter of Westinghouse Elec. Corp. v State Div. of Human Rights, 49 NY2d 234, 238 (1980). That "general relatedness standard" is not applicable to the NYCHRL, and was, in any event, subsequently removed from the NYSHRL by a 1979 amendment to the statute providing more protection to disabled employees. Id. at 237-238; see Matter of Miller, 60 NY2d at 532 (explaining "individualized standard" required by amended law); see also Matter of New Venture Gear, Inc. v New York State Div. of Human Rights, 41 AD3d 1265, 1266 (4th Dept 2007) (upholding finding of disability discrimination based on worker's "chemical sensitivity to an ingredient in a cleaning solution" used at work).

Similarly, under the federal Americans with Disability Act (ADA)(42 USC 12101 et seq.), which defines disability more narrowly than the NYCHRL as an impairment "that substantially limits one or more major life activities" (42 USC § 12102 [1] [a]), allergies have been recognized as disabilities. See e.g. Leon v Department of Educ., 16 F Supp 3d 184, 198, 204 (ED NY 2014) (recognizing allergies as disability under ADA, but finding employee did not allege that she requested a reasonable accommodation), affd in part and vacated in part 612 Fed Appx 632 (2d Cir 2015) (vacating finding that plaintiff did not adequately allege a request for accommodation, and remanding for further proceedings); Keck v New York State Off. of Alcoholism & Substance Abuse Servs., 10 F Supp 2d 194, 199, 200 (ND NY 1998) (sensitivities to tobacco smoke and perfume could meet definition of disability under ADA if shown to substantially impair a major life activity, such as work); cf. Davie v New York City Tr. Auth., 2003 WL 22998905, *2, 2003 US Dist LEXIS 22893, *4 (ED NY 2003) (allergy [hives] was not a disability under ADA because it did not substantially limit a major life activity [which NYCHRL does not require]); see also Staron v McDonald's Corp., 51 F3d 353, 357 (2d Cir 1995) (claims that allergies to smoke are disabilities under ADA requiring accommodation are subject to same reasonable accommodation analysis as other disability claims).

In view of the above, the court finds that petitioner has sufficiently alleged, and presented sufficient evidence, including medical documentation, to show that his hives and other allergic reactions, even if their etiology is uncertain, represent a physical impairment and/or a record of a physical impairment falling within the NYCHRL's broad definition of disability.


The NYCHRL requires that an employer "make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job . . . provided that the disability is known or should have been known by the [employer]." Administrative Code § 8-107 (15) (a); see Romanello, 22 NY3d at 885; Jacobsen, 22 NY3d at 843-844; Phillips, 66 AD3d at 180-181. Respondents do not deny that petitioner provided medical records to HMD documenting his medical condition on several occasions, and do not argue that they did not know, or should not have known, about petitioner's physical impairments.

A reasonable accommodation is defined as "such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity's business." Administrative Code § 8-102 (18); see Romanello, 22 NY3d at 885; Phillips, 66 AD3d at 181-182; LeBlanc v United Parcel Serv., 2014 WL 1407706, *17, 2014 US Dist LEXIS 50760, *53 (SD NY 2014). "[T]he burden [is] on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business." Jacobsen, 22 NY3d at 835 (citations omitted); see Administrative Code §§ 8-102 (18) (employer "shall have the burden of proving undue hardship"); Harris & Assocs. v deLeon, 84 NY2d 698, 706 n 2 (statute explicitly puts burden on employer to prove inability to make reasonable accommodation). The employer further has the obligation "to prove that the disabled employee could not, with reasonable accommodation, satisfy the essential requisites of the job.'" Romanello, 22 NY3d at 885 (citation omitted); Administrative Code § 8-107 (15) (b); see Jacobsen, 22 NY3d at 835.


As a first step in providing a reasonable accommodation, the NYCHRL, like comparable state and federal human rights statutes, requires an employer to "engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested." Phillips, 66 AD3d at 176; see Jacobsen, 22 NY3d at 837-838; Miloscia v B.R. Guest Holdings, LLC, 94 AD3d 563, 564 (1st Dept 2012). "The need for individualized inquiry when making a determination of reasonable accommodation is deeply embedded in the fabric of disability rights law . . . [and] employers (and courts) must make a clear, fact-specific inquiry about each individual's circumstance." Phillips, 66 AD3d at 175. "The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached." Id. at 176. Even in the absence of a specific request by an employee, an employer generally has an independent, affirmative duty to investigate feasible accommodations. See id. at 189; Haight v NYU Langone Med. Ctr., 2014 WL 2933190, *17, 2014 US Dist LEXIS 88117, *46 (SD NY 2014); cf. Nande v JP Morgan Chase & Co., 17 Misc 3d 1103(A), 2007 NY Slip Op 51819(U) (Sup Ct, NY County 2007) (contrasting duties under NYSHRL and NYCHRL), affd 57 AD3d 318 (1st Dept 2008).

To the extent that respondents argue that they had no obligation to consider a reasonable accommodation because petitioner did not make a formal request through their EEO office, and they "cannot be expected to respond to non-existent requests, or requests that never reach the appropriate office because petitioner did not follow proper procedures" (Memo in Support of Cross Motion, at 10; see Memo in Support of Answer, at 7), respondents misconstrue their obligation under the law. As stated above, under the NYCHRL, an employer has an obligation to consider a reasonable accommodation, where the disability is known or should have been known, even in the absence of a formal request. See Phillips, 66 AD3d at 189; see also Cohen v State of New York, 129 AD3d 897, 899 (2d Dept 2015) (employer has duty to move forward once need for accommodation is known or requested). Respondents do not dispute that they had notice of petitioner's impairments and of his doctor's recommendation of an alternate work environment, and their HMD notes indicate that they had such notice. They also do not argue that they did not know about his request for a transfer. Notably, while they fault petitioner for not following proper procedures, respondents submit no evidence to show what EEO procedures existed and whether petitioner was informed about such procedures, and they offer no reason for not referring his request themselves to the EEO office for consideration, if that was the proper procedure. See Matter of Castillo, 49 Misc 3d at 796-797 (bad faith evidenced by DOC's failure to follow procedures requiring referral of domestic violence victims to EEO office to determine reasonable accommodation).

Respondents acknowledge that they did not consider petitioner's proposed accommodation, or any other, and did not otherwise engage in any "good faith interactive process ... [to] clarify what are the individual needs of the employee and the business, and identify the appropriate reasonable accommodation." Phillips, 66 AD3d at 175. They argue instead, relying on Jacobsen, that their failure to participate does not permit petitioner to prevail on his reasonable accommodation claim, because an employer's decision to "forgo an interactive process is but one factor to be considered in deciding whether a reasonable accommodation was available." 22 NY3d at 838; see Memo in Support of Answer, at 7-8. Even if respondents' failure to engage in a good faith interactive process with petitioner does not automatically result in a finding of liability, however, "the employer's failure to hold a constructive dialogue about the possibility of a reasonable accommodation may indicate that the employer has discriminated because of' an individual's disability within the meaning of the [NYCHRL]" ( Jacobsen, 22 NY3d at 838 n 2), and "poses a formidable obstacle to the employer's attempt to prove that no reasonable accommodation existed for the employee's disability." Id. at 838. The NYCHRL also "unquestionably forecloses summary judgment" in the employer's favor ( id. at 837-838) where, as here, it admittedly did not engage in "interactions revealing at least some deliberation upon the viability of the employee's request." Id. at 837.

Respondents further argue that petitioner's request for a transfer was unreasonable as a matter of law, asserting that, because a specific allergen on Rikers had not been identified, and petitioner has experienced symptoms when he is not at work, a transfer would not guarantee that his symptoms would not occur at another Rikers facility, and, thus, he would be unable to satisfy the "essential requisites" of his job "regardless of his assignment." Memo in Support of Answer, at 7, 8. This argument, based on speculation about future possibilities, completely ignores the statutory requirement that "the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry." Jacobsen, 22 NY3d at 836 (citation omitted) (noting state law amended to enhance disability protections so that "mere possibility, however speculative" that employee might in the future be unable to perform job, does not insulate employers from liability). b.

As to respondents' argument that petitioner's request for accommodation would impose an undue hardship, the question of whether an accommodation would cause an employer undue hardship is "singularly case-specific." Phillips, 66 AD3d at 179-180; see Vangas v Montefiore Med. Ctr., 6 F Supp 3d 400, 417-418 (SD NY 2014). Factors to consider include, without limitation, the nature and cost of the accommodation; the overall financial resources and size of the business, with respect to the number of its employees and the number, type and location of its facilities; and the type of operation and the composition, structure, and functions of the workforce of the employer. See Administrative Code § 8-102 (18) (a)- (d); Vangas, 6 F Supp 3d at 417-418. Under the NYCHRL, "there are no accommodations that may be unreasonable' if they do not cause undue hardship" ( Phillips, 66 AD3d at 182), and "there is no accommodation . . . that is categorically excluded from the universe of reasonable accommodation." Id.; see Haight, 2014 WL 2933190, at *18, 2014 US Dist LEXIS 88117, at *47 ; LeBlanc, 2014 WL 1047706, at *17, 2014 US Dist LEXIS 50760, at *53; Forgione v City of New York, 2012 WL 4049832, *9, 2012 US Dist LEXIS 130960, *26-27 (ED NY 2012); see also Romanello, 22 NY3d at 884 (comparing to state law).

Respondents contend that petitioner's proposed accommodation would "seriously hamper . . . internal staffing, as many other staff claiming disabilities' would demand transfer off Rikers Island . . . [and] Rikers Island inmate facilities would be understaffed." Memo in Support of Answer, at 8-9. They also contend that petitioner's requested accommodation would cause undue hardship because most of DOC's facilities and inmates are located on Rikers, and all correction officers must be available, in the case of an emergency, for instance, to provide security on Rikers. Memo in Support of Cross Motion, at 11-12. Respondents' sole evidence in support of their arguments is an affidavit of Martin Murphy, Bureau Chief of Custody Management, who attests that 10 of 15 facilities operated by DOC are located on Rikers Island; 81% of DOC's daily inmate population are housed in correctional facilities on Rikers; and, because most inmates are housed at Rikers, probationary correction officers "ordinarily" are assigned to Rikers' facilities. Murphy Aff., Ex. A to Answer, ¶¶ 4-6. He does not, however, address whether or how those facts create an undue hardship, and otherwise offers nothing to substantiate the arguments set forth in respondents' memoranda of law.

Further, while an employer is not obligated to provide a disabled employee with the specific accommodation that the employee requests or prefers, and is not required to create a new light-duty position for a disabled employee (see Porter v City of New York, 128 AD3d 448, 449 [1st Dept 2015]; Silver v City of NY Dept. of Homeless Servs., 115 AD3d 485, 486 [1st Dept 2014]; Matter of Mair-Headley v County of Westchester, 41 AD3d 600, 602-603 [2d Dept 2007]; Pimentel v Citibank, N.A., 29 AD3d 141, 148 [1st Dept 2006]), respondents present nothing that shows that petitioner's transfer request would require them to create a light-duty position. See Jacobsen, 22 NY3d at 840 n 3. Absent any response to petitioner's request and any effort to engage with petitioner in any process to explore or consider what other possible accommodations could be made, either at Rikers or elsewhere within its system, respondents fail to establish that there was no feasible accommodation that they could provide.


As material issues of fact remain as to whether an interactive process would have led to a reasonable accommodation, the matter must proceed to trial. See CPLR 7804 (h); Cohen v State of New York, 129 AD3d 897, 898 (2d Dept 2015); Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844 (1st Dept 2005); see also Matter of Swinton, 93 NY2d at 763; Matter of York, 63 NY2d at 761; Matter of Anonymous v Codd, 40 NY2d 860 (1976).

Similarly, there are triable issues of fact as to whether the termination of petitioner's employment was based, in any part, on his disability. See Cadet-Legros, 21 NYS2d at 225 n 1 (plaintiff may prevail on discrimination claim by showing "the defendant was motivated at least in part by the plaintiff's protected status"); Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 (1st Dept 2012) (NYCHRL claims must be analyzed under both the McDonnell Douglas framework and the mixed motives framework); Bennett, 92 AD3d at 41, 45 (1st Dept 2011) (under NYCHRL, summary judgment denied unless defendant shows "no jury could find defendant liable under any of the evidentiary routes — McDonnell Douglas, mixed motive, direct evidence, or some combination thereof"). Respondents argue that they had a nondiscriminatory reason for terminating petitioner's employment based on excessive absences, one instance of lateness, and one disciplinary action. Petitioner was not disciplined for the one time that he was 15 minutes late. For violating DOC's rule that employees on sick leave must remain at their residence, petitioner was penalized by losing four vacation days, but was not advised that the first violation could lead to termination. Compare Matter of Exolas v Schriro, 2014 WL 1094385, 2014 NY Misc LEXIS 1104 (Sup Ct, NY County 2014) (termination after second violation of sick leave rules not bad faith; petitioner counseled after first violation regarding zero tolerance policy on sick leave violations); see also Maldonado Reply Aff., ¶¶ 4-6 and annexed exhibits (DOC policy is to terminate employee after second sick leave violation).

Respondents do not argue that the one instance of lateness and the one disciplinary action, individually or together, would warrant dismissal. Rather, their apparent argument is that those two infractions, in combination with the excessive absences, were the basis for petitioner's discharge. Respondents, however, do not dispute that petitioner's absences were related to the diagnosis and treatment of his allergies and associated surgery, and that DOC was aware of that; the notice of termination itself indicates that petitioner's absences were due to "dermatology." Respondents also do not contest petitioner's claim that DOC required that he remain on sick leave, even after his doctor cleared him to return to work. Thus, issues of fact remain as to whether respondents' reasons for petitioner's dismissal were pretextual and in bad faith, and whether petitioner's disability played any part in the termination of his employment. Martinez v State Univ. of N. Y. -College at Oswego, 13 AD3d 749, 751 (3d Dept 2004) (hearing on issue of pretext required).

CPLR 7804 (h) requires a trial "forthwith" if a triable issue of fact is raised in an Article 78 proceeding. Trial "forthwith" does not mean an "immediate" trial, given the parties' need to prepare the case for trial; rather, it "in effect creates a trial preference." Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7804:9; Black's Law Dictionary [10th ed 2014], forthwith ["1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch"]; but see 3-410 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 410.00 ("However, CPLR 3403 does not afford special proceedings a preference on the trial calendar. In the appropriate case, an application for a preference would be made under CPLR 3403.") Therefore, petitioner is directed to file a note of issue accompanied by a certificate of readiness without undue delay. 22 NYCRR 202.21 (a). Upon demand, petitioner would be entitled to a trial by jury. See CPLR 410; Matter of Green v Commissioner of Envtl. Conservation of the State of NY, 94 AD2d 872, 873 (3d Dept 1983); 14-7804 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 7804.08.

An action against a political subdivision of the state (e.g. the City of New York), or against an officer of a political subdivision of the state is entitled to a special preference. CPLR 3403 (a) (1). The word "action" in CPLR 3403 also includes a special proceeding. CPLR 105 (b).

The parties may stipulate to sever from the trial the issues of incidental monetary damages, and to refer those issues to a Special Referee to hear and determine (or to hear and report) should the petitioner prevail. --------

The Court finds the following facts are deemed established for purposes of trial:

Petitioner Cruz has a disability within the meaning of the NYCHRL, and respondents were aware of such disability;

Petitioner requested an accommodation, which respondents did not grant or consider; and

Respondents failed to engage in an interactive process with petitioner, as required by law.


Accordingly, it is

ORDERED that respondents' motion (denominated a "cross motion") to dismiss the proceeding is denied; and it is further

ORDERED that the Court directs a trial on the issues of whether respondents violated the New York City Human Rights Law by failing to reasonably accommodate petitioner's disability and by terminating his employment, and the amount of any incidental damages (e.g., back pay); and it is further

ORDERED that petitioner shall file a note of issue and certificate of readiness, along with a jury demand, if requested, without undue delay. Dated: March 24, 2016 New York, New York




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