The opinion
Bradshaw v City of New York
2024 NY Slip Op 33618(U)
October 8, 2024
Supreme Court, New York County
Docket Number: Index No. 157038/2023
Judge: Jeanine R. Johnson
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 10/11/2024 12:10 PM INDEX NO. 157038/2023
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JEANINE R. JOHNSON PART 52-M
Justice
-X INDEX NO. 157038/2023
DWAYNE BRADSHAW,
MOTION DATE 01/17/2024
Plaintiff,
MOTION SEQ. NO. 001
-v-
THE CITY OF NEW YORK, THE NEW YORK CITY
DECISION + ORDER ON
DEPARTMENT OF CORRECTION
MOTION
Defendant.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10,
11,12,13,14
were read on this motion to/for DISMISSAL
Upon the foregoing documents and oral argument held on 07/31/2024, Defendants-The
City of New York (hereinafter "The City") and The New York City Department of Correction's
(hereinafter "Defendant-DOC") motion to dismiss Plaintiff-Dwayne Bradshaw's complaint
pursuant to CPLR § 321 l(a)(7) is granted as to the dismissal of Defendant-DOC and Plaintiffs
Section 1983 and disparate impact claims. The motion is denied as to Plaintiffs race and
disability discrimination claims, and in all other respects.
As an initial matter, Plaintiff did not appear for oral argument on 07/31/2024. Plaintiff
was on notice of the motion (Notice of Motion NYSCEF Doc. No. 4) and had the opportunity to
oppose the motion. (NYSCEF Doc. No. 11); see generally All State Flooring Distributors, L.P.
v. MD Floors, LLC, 131 A.D.3d 834 (1st Dep't 2015). The Court proceeded with the matter on
the record and heard Defendants' argument. Plaintiffs arguments are analyzed herein based
upon his opposition.papers.
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Motion No. 001
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On a motion to dismiss pursuant to CPLR § 321 l(a)(7), for failure to state a cause of action,
the pleading is to be afforded a liberal construction. Leon v. Martinez, 84 N.Y.2d 83 (1994). This
Court is required to "determine only whether the facts alleged fit within any cognizable legal
theory." Bernberg v. Health Mgmt. Sys., 303 A.D.2d 348, 349 (2d Dep't 2003). However,
allegations comprising bare legal conclusions are not entitled to the same consideration. See
Connaughton v. Chipotle Mexican Grill, Inc., 29 N. Y .3d 13 7 (2017) quoting Simkin v. Blank, l 9
N.Y.3d 46 (2012).
DOC Is Not a Suable Entity
Pursuant to section 396 of the New York City Charter, all legal actions and proceedings
for the recovery of penalties for the violation of any law shall be brought against the city of New
York and not against a city agency. See New York City Charter, Ch. 17 § 396. "Suits against the
New York City Department of Correction are suits against a non-suable entity and are properly
dismissed upon that basis" See Echevarria v. Dep't ofCorrectional Servs., 48 F.Supp.2d 388,
391 (S.D.N.Y. 1999). Thus, Defendant-New York City Department of Corrections is dismissed
from this action.
Section 1983 Claim
The City's motion to dismiss Plaintiffs 42 U.S.C. §1983 claim is granted. To sufficiently
allege a prima facie case under Section 1983, the plaintiff must show that the defendants acted
under the color of state law to deprive the plaintiff of a right, privilege, or immunity guaranteed
by the Constitution or laws of the United States-the complaint must set forth specific factual
allegations indicating the deprivation of rights. See generally Rodriguez v. City ofNew York, 87
A.D.3d. 867 (1st Dep't 2011). The City argues that Plaintiff did not specifically allege that he
was deprived of any constitutional right.
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Motion No. 001
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This Court finds that Plaintiff did not plead with sufficient specificity factual allegations
that indicate a deprivation of rights. Additionally, Plaintiff did not oppose The City's argument
for dismissal of this claim. Thus, Plaintiff abandoned his section 1983 claim, and it is dismissed.
See Cassell v. City ofNew York, 159 A.D.3d 603 (1st Dep't 2018) (holding that Plaintiff's claim
under Section 1983 is abandoned because Plaintiff did not oppose the City's argument that the
•complaint had failed to state a section 1983 claim); see generally Bonventre v. Soho Mews
Condominium, 173 A.D.3d 411,412 (1st Dep't 2018).
Disparate Impact Claim
The City's motion to dismiss Plaintiff's disparate impact claim is granted. To sufficiently
allege a cognizable claim for disparate impact, the plaintiff must demonstrate that a facially
neutral practice had a disproportionate impact on them, and it is the plaintiff's burden to identify
the specific employment practice responsible for the disparities. See generally Campaign for
Fiscal Equity v. State, 719 N.Y.S.2d 475 (Sup. Ct. N.Y. Cnty. 2001).
This Court finds that Plaintiff did not allege a facially neutral practice that had a
disproportionate impact on him in the complaint. Furthermore, Plaintiff failed to oppose the
argument for dismissal of this claim. Thus, Plaintiff abandoned his disparate impact claim, and it
is dismissed. Cassell, 159 A.D.3d 603.
Race Discrimination Claim
The City's motion to dismiss Plaintiffs claim of racial discrimination is denied. To
sufficiently allege a prima facie case of racial discrimination under State HRL and City HRL, the
plaintiff must demonstrate they are: (1) a member of a protected class, (2) qualified to hold their
position, (3) suffered and adverse employment action, (4) the adverse employment action
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Motion No. 001 ·
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occurred under circumstances that give rise to an inference of discrimination. See generally
Harrington v. City ofNew York, 157 A.D.3d 582 (1st Dep't 2018).
The City argues that Plaintiff did not allege facts that give rise to an inference that The
City acted with discriminatory animus by terminating his employment. (NYSCEF Doc. No. 8).
Plaintiff established that he is a member of a protected class because he identifies as
Black/African American, he was qualified to hold his position as a Correction Officer, he was
terminated from his position and pled that he was deprived of the terms, conditions, and
privileges of his employment due to his race. (NYSCEF Doc. No. 2). Affording Plaintiff the
benefit of every favorable inference, this Court finds that Plaintiff sufficiently pled a cause of
action for racial discrimination under State HRL and City HRL. Therefore, The City's motion to
dismiss Plaintiffs race discrimination claim is denied.
Disability Discrimination Claim
The City's motion to dismiss Plaintiff's claim of disability discrimination is denied. In
addition to the Harrington factors, to sufficiently allege a prima facie case of disability
discrimination under State HRL and City HRL, ''the plaintiff must demonstrate that.he or she
suffered from a disability and that disability caused the behavior for which they were
terminated." Pimentel v. Citibank, N.A., 29 A.D.3d 141, 144 (1st Dep't 2006). Under State HRL
disability is defined as "a physical, mental, or medical impairment ... which upon the provision of
reasonable accommodations, does not prevent the complainant from performing in a reasonable
manner the activities involved in the job or occupation sought or held." Id. at 145. Under City
HRL, disability is defined as "any physical, medical, mental, or psychological impairment ... and
an employe has the obligation to '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
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Motion No. 001
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should have been known by the [employer]."' Watson v. Emblem Health Services, 158 A.D.3d
179, 182 (1st Dep't 2018).
The City argues that Plaintiff failed to plead a cause of action for disability discrimination
because Plaintiff did not allege facts that give rise to an inference that The City acted with
discriminatory animus by terminating his employment. (NYSCEF Doc. No. 8). The City
contends that Plaintiff failed to show that he is a member of a protected class by establishing that
he has a disability, the nature of the disability or assert a need for a reasonable accommodation.
Id. In his complaint, Plaintiff's alleges that he suffered significant injury from excessive force
interactions at work which constitutes a disability. (NYSCEF Doc. No. 2). He further alleges that
The City was aware of the disability because it happened at work, and he took medical leave as a
result. Plaintiff contends his termination was based on disability discrimination because he was
terminated for excessive use ofleave due to the disability. Id. He further contends that The City
had an obligation to offer a reasonable accommodation and failed to do so. Id.
This Court finds that Plaintiff sufficiently pied a cause of action for disability discrimination
because Plaintiff alleged a known disability within the meaning of State HRL and City HRL and
that he suffered an adverse employment action because of the disability. Thus, The City's motion
to dismiss Plaintiff's disability discrimination claim is denied.
Accordingly it is hereby,
ORDERED that Defendants - The City of New York and The New York City Department of
Correction's motion to dismiss is granted with respect to disparate impact and Section 1983
claims, it is further
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Motion No. 001
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/11/2024
ORDERED that Defendants - The City of New York and The New York City Department of
Correction's motion to dismiss is denied with respect to the race and disability discrimination.
claims and in all other respects, it is further
ORDERED that all claims against Defendant -The New York City Department of Correction
are dismissed, it is further
ORDERED that the action is severed and continued against the remaining Defendant -
The City of New York; it is further
ORDERED that the caption is amended to read as follows:
--------------------X
DWAYNE BRADSHAW,
Plaintiff,
- V -
THE CITY OF NEW YORK
Defendant.
--------------------X
it is further;
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; it is further,
ORDERED that counsel for the moving party shall serve a copy of this order with notice
of entry upon the Clerk of the Court, who are directed to mark the court's records to reflect the
change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk ofthe General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
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Motion No. 001
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Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website).
This constitutes the Decision and Order of the Court.
10/8/2024
DATE
~
CHECK ONE: CASE DISPOSED NON- ISPO N
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 001
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