# Ellis v. City of New York

> New York Supreme Court, New York County · March 20, 2024 · 2024 NY Slip Op 30930(U)

URL: https://www.frixlaw.com/law-library/cases/9954291

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** March 20, 2024
- **Citations:** 2024 NY Slip Op 30930(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Ellis v City of New York
2024 NY Slip Op 30930(U)
March 20, 2024
Supreme Court, New York County
Docket Number: Index No. 159090/2022
Judge: Hasa A. Kingo
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.
INDEX NO. 159090/2022
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 159090/2022
OPAL ELLIS,
MOTION DATE 03/07/2023
Plaintiff,
MOTION SEQ. NO. 001
- V -

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
DECISION + ORDER ON
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, 15, 16, 17
were read on this motion to/for DISMISS

With the instant motion, Defendant City of New York 1 (hereinafter "Defendant") moves,
pursuant to CPLR §3211(a)(7), for dismissal of plaintiff Opal Ellis' (hereinafter "Plaintiff')
complaint in its entirety. Plaintiff opposes the motion. For the reasons specified herein, the motion
is granted, and the complaint is dismissed.

BACKGROUND

Plaintiff commenced this action to recover damages for alleged discriminatory practices
committed by the New York City Department of Corrections (the "DOC") "in furtherance of
reducing its uniform workforce amid Defendant's historical criminal justice reform." Plaintiff
asserts that the employment of a large portion of the DOC workforce was improperly terminated
to reduce the DOC's workforce, which was discriminatory because the DOC's workforce is 95%
minority.

A significant portion of Plaintiffs complaint references New York City's "history of
structural and institutional discrimination." However, Plaintiff fails to establish a clear connection
between these purported incidents and Plaintiffs claims. Plaintiff also asserts that the DOC's
actions were taken despite recommendations of the State Commission of Correction, the Nunez
Monitor, and the Vera Institute of Justice. He offers no explanation regarding the Nunez Monitor,
and the Vera Institute of Justice or how they relate to Plaintiffs claims.

1
Of which The New York City Department of Correction (aka "DOC") is included, as specified herein.
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The complaint interposes causes of action ( 1) pursuant to Section 296 of New York State
Executive Law, Administrative Code §8-120(a)(8), and Article I, §11 of the New York State
Constitution for discrimination based on race, gender, and disability resulting in Plaintiffs
termination of employment, (2) pursuant to Section 296 of New York State Executive Law,
Administrative Code §8-120(a)(8), and Article I, §11 of New York State Constitution for
discrimination based on race, gender, and disability resulting in Defendant's negligent and reckless
handling of COVID-19 pandemic mitigation, and Plaintiffs contracting of the COVID-19 virus
on the job, and (3) pursuant to Administrative Code§ 8-502( a), for punitive damages for emotional
distress (i.e., mental anguish) as a proximate cause of Defendant's discrimination based on race.

Plaintiff self-identifies as an African American woman. In 2020, Plaintiff was employed
by the DOC and was stationed in the Security Operations Division located in Rikers Island. The
complaint alleges that on an unspecified date in 2020, Plaintiff contracted COVID-19 and suffered
serious side effects that resulted in her being in a coma for several weeks, near death, and having
to "learn to walk again," and later suffered from long COVID-19. She was out of work on sick
leave "from about March/April 2020 through June 30, 2022," when her employment was
terminated. She asserts that much of her leave was "involuntary" and she attempted to return to
work on light duty, known in the DOC as "medically monitored" or "MM." MM had three levels,
the third of which prohibited inmate contact. She asserts she could have returned to work MM
effectively because the position she had been assigned to work since 2008 required "little to no
inmate contact." She asserts MM status is a reasonable accommodation although such is not
specifically designated or labelled as such. Following a Section 75 hearing, she was medically
separated from employment.

ARGUMENTS

In support of its motion, Defendant argues the following: 1.) that the DOC must be
dismissed from the case because it is not a suitable entity; 2.) that Plaintiffs claims must be
dismissed because Plaintiff does not plead that the determination was arbitrary and capricious or
unsupported by substantial evidence; 3.) that there is no private right of action under the New York
Constitution for employment discrimination; 4.) that Plaintiff does not plead facts to demonstrate
any discriminatory motivation or impact from her termination; and 5.) that Plaintiff was terminated
because she could not perform the essential function of a position at Rikers, which required inmate
contact. Defendant also contends this action should have been brought as an Article78 proceeding
but concedes it could be converted to same.

In opposition, Plaintiff reiterates broad allegations of historical discrimination against New
York City and the DOC, and asserts that claims of discrimination are not required to be brought
under Article 78. Plaintiff further avers that that her claims "need not" be dismissed when the court
"is on notice of hundreds of identical claims of racial discrimination" (an apparent reference to
Index 159551/2021).

In response to Plaintiffs opposition, Defendant reiterates the arguments set forth in support
of its motion and underscores that Plaintiff fails to connect the facts of her case to her broad claims
of discrimination.

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DISCUSSION

On a motion to dismiss for failure to state a cause of action under CPLR §3211 (a)(7),
courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as
true, and give the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84
NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764
[2015]). Ordinarily, the court's inquiry is limited to assessing the legal sufficiency of the plaintiffs
pleadings; accordingly, the court's only function is to determine whether the facts as alleged fit
within a cognizable legal theory (JF Capital Advisors, 25 NY3d at 764, supra). However, where
the complaint consists of bare legal conclusions with no factual specificity (Godfrey v Spano, 13
NY3d 358, 373 [2009]) or where the statements in a pleading are not sufficiently particular to give
the court and parties notice of the transactions and/or occurrences intended to be proven (CPLR
§3013; Mid-Hudson Val. Fed Credit Union v Quartararo & Lois, PLLC, 31 NY3d 1090, 1091
[2018]), the motion to dismiss should be granted. Indeed, "allegations consisting of bare legal
conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled
to any such consideration" (Garber v Board of Trustees of State Univ. of NY, 38 AD3d 833, 834
[2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). CPLR §2013, states that
"[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of
the transactions, occurrences, or series of transactions or occurrences, intended to be proved and
the material elements of each cause of action or defense." Thus, conclusory allegations will not
suffice (see DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 239 [2d Dept 1984];
Fowler v American Lawyer Media, 306 AD2d 113, 113 [1st Dept 2003]; Sherif.Iv Murray, 33
AD3d 688 [2d Dept 2006]). When the allegations in a complaint are vague or conclusory, dismissal
for failure to state a cause of action is warranted (see Schuckman Realty v Marine Midland Bank,
NA., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Ch., Local No. 852, Civ. Serv.
Empls. Assn., 95 AD2d 800, 800 [2d Dept 1983]).

Dismissal of the Department of Correction

As an initial matter here, Defendant is entitled to dismissal of the DOC from this lawsuit
since the DOC is a not a suitable entity. The New York City Charter provides that "all actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the name
of the City of New York and not in that of any agency, except where otherwise provided by law"
(see New York City Charter§ 396). Accordingly, as an agency of the City of New York, DOC is
not a suitable entity and is therefore dismissed from this action (see Cottman v. New York City
Dept. of Corr., Index No. 155680/2019, 2020 N.Y. Misc. LEXIS 1572, at *1-2 [Sup Ct, NY
County, Apr. 20, 2020]).

Dismissal of Plaintiff's Claims Under Civil Service Law§ 71, 73, and 75

Likewise, Defendant is entitled to dismissal of Plaintiff's claims asserted under the Civil
Service Law. For one, Civil Service Law §§73 and 75 are inapplicable to this action. Plaintiff
asserts that she was "terminated by [DOC] pursuant to Sections 71 and 73 of the Civil Service
Law" after "Section 75 misconduct termination proceedings" (see Compl. ,-i,i 11, 15, 36). After
more than two years of medical leave, Plaintiff was medically separated from the DOC due to her
inability to perform the duties of her Correction Officer role at Rikers Island. This separation

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occurred "by reason of a disability resulting from an occupational injury or disease," as stipulated
by Civil Service Law §71. Civil Service Law §73, on the other hand, applies when an employee
has a disability not resulting from occupational injury or disease. Therefore, Civil Service Law§§
71 and 73 are mutually exclusive, and plaintiff cannot have been medically separated under both
sections. Additionally, disciplinary charges pending at the time of plaintiff's medical separation
were placed in abeyance by the DOC. Consequently, Plaintiff was not terminated in accordance
with Civil Service Law §75.

Nevertheless, even where the court addresses the merits of each section, dismissal is still
warranted. Indeed, insofar as an Article 78 proceeding would be the appropriate forum for
challenging a government agency's final administrative determination, including determinations
pursuant to Civil Service Law§§ 71, 73, and 75 (see CPLR §7801; Matter ofPhillips v. New York
Citywide Admin. Servs., 173 AD3d 493 [1st Dept 2019]; Matter of Scott v. Westchester County,
204 AD3d 807 [2d Dept 2022]; Matter of Battisti v. City of New York, 121 AD3d 520 [I st Dept
2014 ]), Plaintiffs complaint fails to address whether the challenged administrative determination
was arbitrary and capricious or unsupported by substantial evidence. In an Article 78 proceeding
challenging termination of employment following a Civil Service Law §75 hearing, the petitioner
has the burden of showing that the challenged final administrative determination "is, on the entire
record, [un]supported by substantial evidence" (CPLR §7801[4]).

Here, Plaintiff does not even allege that the termination of her employment was
unsupported by substantial evidence. Instead, Plaintiff puts forth the conclusive and speculative
argument that "under well-established law, the Defendants are prohibited of medically separating
staff in Section 75 hearing" (see Compl ,i 35). Plaintiff further alleges that "Defendants took
[Plaintiff] into Section 75 misconduct termination proceedings, threatening that if she did not act
or feign that she was not suffering from Long COVID and return to work full duty ... she would
be terminated" (see Compl ,i 36). As highlighted by Defendant, it is unclear what precisely Plaintiff
is alleging, and there is no identification of any specific factual conclusions reached in a Civil
Service Law § 75 hearing that are being challenged. Such "unsupported, conclusory allegations
are insufficient to fulfill a petitioner's burden of proof' in an Article 78 proceeding (Bracey v. City
ofNew York, Index No. 153801/2020, 2021 N.Y. Misc. LEXIS 1858, at *8 [Sup. Ct. N.Y. County,
Apr. 16, 2021]; Matter ofLeka v. New York City Law Dept., 160 A.D.3d 497,497 [1st Dept 2018];
Matter of Che Lin Tsao v. Kelly, 28 AD3d 320, 320 [I st Dept 2012]). Therefore, an Article 78
petition built upon conclusory allegations like those asserted in this case would be dismissed.
Hence, this court declines to convert this action and instead dismisses the complaint on the grounds
asserted.

Similarly, the complaint must also be dismissed insofar as Plaintiff challenges
administrative decisions made pursuant to Civil Service Law§§ 71 and 73. To prevail under either
Civil Service Law §§ 71 or 73, Plaintiff must show that the determination to terminate her
employment "was made in violation of lawful procedure, was affected by an error of law or was
arbitrary and capricious or an abuse of discretion" (see CPLR §7801[3]). Here, Plaintiff's
allegations do not sufficiently establish her entitlement to relief, as there are no facts put forward
indicating that her termination was arbitrary and capricious. The factual assertions are so lacking
that this court cannot ascertain whether Plaintiffs termination lacked a "sound basis in reason" or
was made "without regard to the facts." Moreover, Plaintiff has not demonstrated eligibility for

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reinstatement, as she fails to allege applying for a pre-reinstatement medical examination, her
physical and mental fitness for duty, or the vacancy of her former position-all prerequisites for
reinstatement under Civil Service Law §71. Additionally, Plaintiff herself acknowledged the
option to seek an independent medical examination to assess her fitness for Correction Officer
duties by June 30, 2023. Moreover, Civil Service Law§ 73 is plainly irrelevant to this matter since
Plaintiffs medical separation was conducted pursuant to Civil Service Law §71. Even if Civil
Service Law §73 were relevant, Plaintiff fails to provide any facts suggesting that her termination
was arbitrary and capricious. Furthermore, Civil Service Law §73 imposes the same prerequisites
regarding medical examination, fitness, and job vacancy as Civil Service Law §71, none of which
Plaintiff alleges to have met. Consequently, regarding any challenges to violations of Civil Service
Law §§71 and 73, this court refrains from converting this action and instead dismisses the
complaint on the grounds asserted.

Equal Protection Clause

Next, Defendant's motion to dismiss Plaintiff's claims under Article I, § 11 of the New York
State Constitution, also known as the Equal Protection Clause, is granted. Given the circumstances,
the appropriate approach to assert a claim here is by invoking the New York State Human Rights
Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"), as Plaintiff has done
(see Brown v. State, 89 NY2d 172, 190-191 [1996]; see also N.Y. Exec. L. §296, et seq.; N.Y.C.
Admin. Code §8-107, et seq.). Therefore, it is appropriate to dismiss Plaintiffs claims asserted
under Article I, § 11 of the New York State Constitution, and such dismissal is hereby granted.

Disparate Treatment Discrimination Claims

Defendant's motion to dismiss Plaintiff's disparate treatment-based discrimination claims
is granted. To state such a claim under the NYSHRL, a plaintiff must allege that: (1) he or she is a
member of a protected class; (2) he or she was qualified to hold the position; (3) she suffered an
adverse employment action; and (4) the adverse action occurred under circumstances giving rise
to an inference of discrimination (Ayers v Bloomberg, LP., 203 AD3d 872, 874 [2d Dept 2022]).
"An adverse employment action requires a materially adverse change in the terms and conditions
of employment" and "must be more disruptive than a mere inconvenience or an alteration of job
responsibilities" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004] [internal citations
and quotations omitted]). The elements of a discrimination claim under the NYCHRL largely
mirror the foregoing, except that a plaintiff need not plead that she suffered an "adverse
employment action," but only that she was "treated differently" because of her gender (see Askin
v Dept. ofEduc. of the City ofNew York, 110 AD3d 621, 622 [1st Dept 2013]; see also Williams v.
New York City Haus. Auth., 61 AD3d 62, 66 [1st Dept 2009]). To show that DOC treated her
differently because of her race, gender or disability, Plaintiff must "plead facts sufficient to support
such an inference beyond conclusory allegations of bias" (Pitter-Green v. NYU Langone Med Ctr.,
Index No. 155386/2021, 2022 N.Y. Misc. LEXIS 7975, at *12 [Sup Ct, NY County, Dec. 16,
2022]).

Here, although Plaintiffs medical separation could be considered an adverse employment
action, the complaint fails to provide any details or facts to substantiate an inference of
discrimination. Plaintiff does not establish a connection between her purported termination due to

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a workforce reduction and her race, gender, or disability. There are no allegations that any
employees of the DOC made comments or references regarding Plaintiffs race, gender, or
disability, nor are there identifications of similarly situated DOC employees outside her protected
group who received preferential treatment. Additionally, Plaintiff does not specify any other
suspicious behavior from which discriminatory intent could be inferred.

Rather than addressing pertinent issues, Plaintiff predominantly focuses on irrelevant
statistics, monitor reports, demographic figures, and case law concerning the City's purported
history of discrimination. There is no explanation from Plaintiff regarding the relevance of these
statistics and other information to her claims. Moreover, the statistics presented by Plaintiff fail to
demonstrate any disparity affecting Black employees; indeed, they indicate that Black employees
constitute the majority of uniformed staff in every DOC rank (see Compl. ,i,i 39-46). However,
irrespective of their content, statistics alone cannot establish an inference of discrimination in an
individual disparate treatment case (see Blanc v. City of New York, Index No. 154032/2020, 2021
N.Y Misc. LEXIS 1163, at *19 [Sup Ct, NY County, Mar. 17, 2021]).

In essence, Plaintiff simply asserts her membership in protected classes and recounts
certain events. However, these facts fail to imply discrimination as they do not establish a causal
relationship between her protected class status and her termination. As stated in Williams v. City of
New York, Index No. 0030411/2018, 2020 N.Y Misc. LEXIS 12262, at *6 (Sup Ct, Bronx County,
July 30, 2020), "[W]here a complaint amounts to nothing more than the recitation of a false
syllogism: (1) I am (insert name of a protected class); (2) something bad happened to me at work;
(3) therefore, it happened because I am (insert name of protected class)," such a complaint is not
sufficient to withstand a motion to dismiss. Consequently, Plaintiff's disparate treatment claims
under the NYSHRL and NYCHRL are be dismissed.

Hostile Work Environment

Likewise, the branch of Defendant's motion to dismiss Plaintiffs hostile work environment
claims is granted. Under the NYSHRL, a "hostile work environment exists ' [w ]hen the workplace
is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive working
environment"' (Hunter v Barnes & Noble, Inc., 2023 NY Slip Op 30638[U], 8-9 [Sup Ct, NY
County 2023] [internal citations and quotations omitted]; Forrest, 3 NY3d at 310, supra).

To state a hostile work environment claim under the NYCHRL, however, a plaintiff need
only allege facts showing that the plaintiff was "treated less well than other employees because of
[his or] her protected status or that discrimination was one of the motivating factors for the
defendant's conduct" (Chin v New York City Haus. Auth., 106 AD3d 443, 445 [1st Dept
2013] citing Williams v New York City Haus. Auth., 61 AD3d 62, 75-78 [I st Dept 2013]; Whitfield-
Ortiz v. Department ofEduc. of the City ofNew York, 116 AD3d 580 [1st Dept 2014]).

In this instance, Plaintiff further asserts an unfounded conspiracy alleging that the DOC
intentionally fostered a hostile work environment to diminish the presence of Black, Hispanic,
female, and disabled employees (see Compl. at ,i 33). To the extent that this can be construed as
Plaintiff's attempt to establish a discrimination claim based on the contention that she was subject

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to a hostile work environment, the court rejects that claim. Indeed, in accordance with the above-
cited precedent, it is evident from the facts as presented in the complaint that no reasonable
individual would perceive Plaintiff's work environment as hostile or abusive based on race, gender,
or disability. Plaintiff does not assert that she endured any race-, gender-, or disability-based
insults, nor does she claim to have been targeted for humiliation or ridicule due to being Black,
female, or disabled. Instead, Plaintiff simply alleges that Defendant "resorted to obscene hostile
work environments" and subjected employees to "Slave-Esque working conditions" (Compl. ,i,i
33, 42). However, such conclusory statements fail to establish a hostile work environment claim
under either the NYCHRL or NYSHRL. As evidenced in cases such as Brock v. Prime, Index No.
100841/2022, 2022 N.Y.L.J LEXIS 1634, at *12 (Sup Ct, NY County, Sep. 19, 2022) and Howell
v. UnitedFedn. OJTeachers Welfare Fund, Index No 153235/2017, 2020 N.Y. Misc. LEXIS 2486,
at *21-22 (Sup Ct, NY County, June 3, 2022), claims of hostile work environment lacking specific
factual details have been dismissed under the NYSHRL and NYCHRL. Consequently, as Plaintiff
fails to assert a hostile work environment claim under the NYSHRL or NYCHRL, any such claim
advanced by Plaintiff is dismissed.

Disparate Impact

Plaintiff's disparate impact claim also fails. The Court of Appeals has established the
criteria for stating a disparate impact claim under the NYSHRL: "when a ... standard, although
neutral on its face or even neutral in terms of intent, adversely affects equal employment
opportunity for a protected class of persons, judicial scrutiny of that ... criterion is warranted"
(Sontagv. Bronstein, 33 NY2d 197,201 [1973]). Likewise, under the NYCHRL, "a cause of action
[for disparate impact discrimination] may be maintained where 'a policy or practice of a ...
covered entity results to the detriment of any [protected] group"' (Burgis v. City of NY Dep 't of
Sanitation, Index No. 652972/2014, 2018 N.Y. Misc. LEXIS 6400, at *11 [Sup Ct, NY County,
Dec. 20, 2018]).

Here, Plaintiffs disparate impact claim fails because Plaintiff does not adequately plead
the existence of a facially neutral policy that has a disproportionate effect on a protected class, as
the NYSHRL and NYCHRL require. Instead, Plaintiff merely makes general and conclusory
references to "reduction of uniform staff' and "discrimination against Black and Hispanics as to
the terms, conditions, and privileges of employment" (see Compl. ,i,i 27, 38). Plaintiff proceeds to
present demographic statistics of the DOC workforce in 2018, categorized by gender and race (see
Compl. ,i,i 39-47). Plaintiffs argument seems to suggest that the DOC's "reduction of uniform
staff' unfairly impacts Black, female, and disabled employees (see Compl. ,i 27). However, the
data provided by Plaintiff remains static and lacks a comparison of groups over time.
Consequently, Plaintiff fails to even plausibly assert a discrepancy in layoffs, let alone establish a
causal link between such a disparity and a specific employment policy or practice. This deficiency
proves detrimental to Plaintiff's disparate impact claims. As demonstrated in Shinaul v. NY City
Dept. of Corr., Index No. 150454/2020, 2021 N.Y. Misc. LEXIS 2921, at *3 (Sup Ct, NY County,
May 25, 2021), "[T]he complaint is void of any facts indicating that minority uniform staff have
been disproportionately dismissed. In any event, plaintiff fails to allege a causal connection
between any policy to reduce uniform staff and the disproportionate effect on minority staff."
Consequently, Plaintiff's disparate impact claims under the NYSHRL and NYCHRL must be
dismissed.

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Reasonable Accommodation

Lastly, dismissal of the complaint is also warranted because Plaintiff fails to assert that she
could fulfill the essential duties of her job with a reasonable accommodation, or even that she
requested one. To establish a prima facie case of disability discrimination "for failure to reasonably
accommodate under the NYSHRL and NYCHRL, the complaint must allege that (1) the employee
has a disability under the relevant statute, (2) an employer covered by the statute was aware of her
disability, (3) with reasonable accommodations, [the employee] could perform the essential
functions of her job, and (4) her employer declined to provide such accommodations" (Urena v.
Swiss Post Solutions, Inc., No. 16 Civ. 1998 [LGS], 2016 U.S. Dist. LEXIS 128856, at *6
[S.D.N.Y. Sept. 21, 2016]). The pertinent examination "under both the State and City Human
Rights Laws is whether the employee was capable of performing the core functions of the
employee's position" (Jacobsen v. New York City Health & Hospitals Corp., 22 NY3d 824, 843
[2014]). If a plaintiff neglects to allege that a reasonable accommodation would enable her to fulfill
the essential functions of her job, the complaint ought to be dismissed. This principle is illustrated
inForgionev. CityofNew York, No. 11-cv-5248, 2012 U.S. Dist. LEXIS 130960, at *21 (E.D.N.Y.
Sept. 13, 2012), where a NYSHRL failure to accommodate claim was dismissed because the
plaintiff did not plead that he "requested a reasonable accommodation that would have allowed
him to perform the essential functions of his job."

Here, the complaint fails to specify the nature of Plaintiff's purported disabilities following
her contraction oflong COVID-19, including whether they are of a permanent or temporary nature.
Additionally, there is no mention in the complaint of any of the essential functions of Plaintiff's
position, nor is it indicated that a reasonable accommodation would enable Plaintiff to fulfill those
essential functions. Furthermore, Plaintiff does not even specify the accommodation she was
seeking. Instead, Plaintiff vaguely claims to have previously held a position she considers to be
"effectively" a light-duty role "with little to no inmate contact," and thus asserts that the DOC
should have allowed her to "return to work light duty" at Rikers Island (see Compl. ,i,i 16-17, 19).
In essence, Plaintiff insists that the DOC should permit her to resume work at Rikers Island but
without any inmate interaction (see Compl. ,i 17). However, Plaintiff does not provide any
explanation as to how she could be reinstated as a Correction Officer at the City's largest jail,
especially when she herself admits to being completely incapable of interacting with incarcerated
individuals.

Moreover, if the complaint is construed as asserting that Plaintiff ought to be assigned to
indefinite light-duty work, it has been established as a matter of law that such an accommodation
is not reasonable. According to the NYSHRL and the NYCHRL, "an employer is not obligated to
locate another job for the employee, establish a new position, or create a light-duty version of the
current role" (Jacobsen, 97 AD3d at 431, supra, citing Pimental v. Citibank, NA., 29 AD3d 141,
148 [1st Dept 2006]). Essentially, "a reasonable accommodation can never necessitate the
elimination of an essential job function-thus, providing an employee with 'light work' ... exceeds
an employer's reasonable obligation" (Cayetano v. Federal Express Corp., No. 19 Civ. 10619
[AT], 2022 U.S. Dist. LEXIS 119102, at *12 [S.D.N.Y. July 6, 2022]).

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Simply put, here Plaintiff fails to adequately assert that she has a disability, requested a
reasonable accommodation, or could carry out the essential duties of her position with an
accommodation. Additionally, she now pursues an accommodation that is legally unreasonable.
Consequently, the complaint is dismissed on these grounds as well.

Consideration ofEvidence Submitted

Finally, the court addresses an argument advanced by Plaintiffs counsel at oral argument
on March 19, 2024 wherein Plaintiffs counsel argued that the court cannot consider Defendant's
documentary evidence submitted in support of their motion to dismiss because the motion was
made pursuant to CPLR §3211(a)(7) instead of CPLR §3211(a)(l).Contrary to Plaintiffs
counsel's argument, the Appellate Division, First Department, has consistently held that courts
may consider documentary evidence submitted in support of motions to dismiss brought pursuant
to CPLR §321 l(a)(7) (see White Rock Ins. Co. PCC Ltd v. Lloyd's Syndicate 4242, 202 AD3d
563, 565 [1st Dept 2022]["[W]e may nevertheless consider documentary evidence on a CPLR
§3211[a][7] motion."]; Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 115 AD3d
128, 134 [1st Dept 2014]).

Thus, while not dispositive, the court here was within its right to consider Defendant's
documentary evidence submitted in support of the motion to dismiss, namely the Negotiated Plea
Agreement for Settlement of Disciplinary Matters, annexed to the Affirmation of Bryan Carr Olert
as Exhibit B, NYSCEF Dkt. 8.

Based on the foregoing, it is hereby

ORDERED that Defendant's motion is granted in its entirety; and it is further

ORDERED that Plaintiffs complaint is accordingly dismissed; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment dismissing the
complaint in its entirety.

The foregoing constitutes the decision and order of the court.

3/20/2024
DATE HASAA. KIN

~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

159090/2022 ELLIS, OPAL vs. CITY OF NEW YORK ET AL Page 9 of 9
Motion No. 001

9 of 9
[* 9]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9954291. Public record. Not legal advice.