Asad v. Mahoney

1

2023 NY Slip Op 32625(U)

SHAFEEQ ASAD, GLEN M. MORGAN, DERRICK WRIGHT, and IVERY HILL, Plaintiffs, v. KEVIN MAHONEY, FIRST QUALITY MAINTENANCE, BROADWAY PARTNERS FUND MANAGER, LLC, SL GREEN REALTY CORP., ALLIANCE BUILDING SERVICES, CLASSIC SECURITY, BROADWAY REAL ESTATE SERVICE, BROADWAY REAL ESTATE SERVICES, BROADWAY 340 MADISON OPERATOR LLC, BROADWAY PARTNERS, and SL GREEN MANAGEMENT LLC, Defendants.

Index No. 9686/2011

Supreme Court, Kings County

July 17, 2023

Unpublished Opinion

DECISION & ORDER

HOM FRANCOIS A. RIVERS, J.S.C.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice motion of defendants First Quality Maintenance (hereinafter First Quality), Alliance Building Services (hereinafter Alliance) and Classic Security (hereinafter collectively as the FQM defendants or movants) filed on March 7, 2019, under motion sequence twenty-three, for an order pursuant to CPLR 3212 granting the movants summary judgment in their favor on the issue of liability on all claims as asserted against them by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright (hereinafter remaining plaintiffs). This motion is opposed by the remaining plaintiffs.

• Notice of Motion

• Affirmation in Support

o Exhibits 1 to 17 • Affidavit of James Mckiernan

o Exhibits 1 to 55

• Affidavit of Fred Bishop o Exhibits A to C

• Memorandum of Law in Support

• Affirmation in Opposition

• Memorandum of Law in Opposition

• Affidavit of Juan Ortiz

• Affidavit of Hill

• Affidavit of Morgan

• Affidavit of Wright

• Affirmation in Further Support o Exhibits 1 to 2

• Memorandum of Law in Reply

BACKGROUND

On April 28, 2011, plaintiffs Shafeeq Asad, Glen M. Morgan Derrick Wright, Ivery Hill, and Juan Ortiz (hereinafter the plaintiffs) commenced the instant action for damages for among other things, employment discrimination against the defendants by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).

Procedural History

By notice of motion filed on October 24, 2011, defendant SL Green Realty Corp, sought to dismiss the plaintiffs' complaint.

By notice of cross-motion filed on January 11, 2012, the plaintiffs sought an order, among other things, for leave to serve a second amended complaint.

By notice of motion filed on March 12, 2012, defendant Broadway Partners Fund Manager, LLC. sought to dismiss the plaintiffs' complaint.

By order dated May 29, 2012, the Court granted the plaintiffs leave to file a second amended summons and complaint and the motions by defendants SL Green Realty and Broadway Partners Fund Manager, LLC were denied as moot.

On June 11, 2012, plaintiffs filed a second amended summons and verified complaint.

On August 24, 2012, defendants SL Green Realty Corp, and SL Green Management LLC (hereinafter the SL defendants) interposed a verified answer to the plaintiffs' complaint.

On September 13, 2012, the SL defendants filed an amended verified answer to the plaintiffs' complaint.

On September 25, 2012, the SL defendants interposed a verified answer to the crossclaims^[1] asserted by defendants Broadway Partners Fund Manager, LLC, Broadway 340 Madison Operator LLC, Broadway Real Estate Service, and Broadway Real Estate Services, LLC.

On June 17, 2013, the FQM defendants interposed a verified answer to the plaintiffs' complaint.

On February 6, 2014, a partial stipulation of discontinuance was filed with the KCCO. The stipulation, discontinued with prejudice the claims of plaintiff Juan Ortiz as asserted against all the defendants, among other things.

On December 14, 2018, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued the plaintiffs' (Shafeeq Asad, Glen M. Morgan, Derrick Wright, and Ivery Hill) claims as asserted against the SL defendants. The stipulation contains a footnote that the caption of the December 14, 2018, stipulation which does not list Juan Ortiz, reflects that Juan Ortiz's claims were previously discontinued.

On February 15, 2018, the plaintiffs filed a note of issue and certificate of readiness for trial.

By order dated February 13, 2019, the Court, having found good cause, extended the time for the parties to file summary judgment motions to March 7, 2019.

On March 7, 2019, the FQM defendants filed a motion pursuant to CPLR 3212 seeking the dismissal of plaintiffs Shafeeq Asad Glen M. Morgan, Ivery Hill, and Derrick Wright claims as asserted against them.

On July 18, 2019, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued plaintiff Shafeeq Asad's claims as asserted against the FQM defendants.

On August 21,2019, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued with prejudice the claims of plaintiffs, Shafeeq Asad, Glen M. Morgan, Derrick Wright, Ivery Hill and Juan Ortiz^[2] as asserted against defendants Broadway Partners Fund Manager, LLC, Broadway Real Estate Services, Broadway 340 Madison Operator, LLC, and Broadway Partners.

The Second Amended Verified Complaint

The second amended verified complaint contains one hundred and four allegations of fact in support of fourteen causes of action including (1) racial discrimination; (2) hostile work environment; (3) wrongful termination; (4) punitive damages; (5) violation of the labor law; (6) hostile work environment; (7) retaliation; (8) mixed motive; (9) religious discrimination; (10) breach of contract; (11) quantum merit; (12) unjust enrichment; (13) failure to adhere to the arbitration provision of the collective bargaining agreement; and (14) defamation.

The verified complaint and bill of particulars allege the following salient facts. The plaintiffs are alleged to have been employed by the defendants. The plaintiffs allege that they have experienced various forms of harassment based on racial and religious discrimination. Plaintiffs Shafeeq Asad, Glen M. Morgan, Derrick Wright, and Ivery Hill are African American.

Shafeeq Asad (hereinafter Asad) was employed as a foreman, from May 2006 until he was unlawfully terminated. Over the course of his employment, Asad made complaints regarding discriminatory acts by the defendants. Asad experienced religious discrimination due to his Muslim faith and head attire. Defendant Kevin Mahoney or someone under his direction is alleged to have placed a noose in Asad's office or work area. Asad alleges that a supervisor made gorilla sounds to mock him. On another occasion, a supervisor told Asad that he dressed "too ghetto."

Derrick Wright (hereinafter Wright), Glen Morgan (hereinafter Morgan) and Ivery Hill (hereinafter Hill) were assigned to cleaning jobs by the defendants.

Hill is alleged to have worked for some or all the defendants from 2006 until June 2011, when he was unlawfully terminated. Morgan is alleged to have worked for some or all the defendants from April 24, 2004, until he was wrongfully suspended in 2010 or 2011 and threatened with termination. Wright is alleged to have worked for some or all the defendants from 2005 until his wrongful termination in 2011. Juan Ortiz is alleged to have worked for some or all the defendants until he was wrongfully suspended in 2010 or 2011 and threatened with termination.

The complaint further alleges that the plaintiffs experienced various forms of harassment as follows. Some of the plaintiffs were denied overtime even though they had seniority over the employees that were awarded the overtime hours. Most of the workers that were awarded overtime were cither Caucasian or non-Black/African American. The defendants made defamatory statements about some of the plaintiffs accusing some of them of theft. The defendants did not pay parking tickets and parking fees even though it was an employer expense. The defendants subjected the plaintiffs to dirty and difficult work conditions. Some of the plaintiffs were banned from working certain jobs because the defendants only wanted Caucasian or non-Black/African American employees to come into their offices or residences. FQM supervisor James Mckiernan made racial remarks about all the plaintiffs. Although the defendants were notified about instances of discrimination there was no attempt to remedy the situation. The plaintiffs experienced unequal treatment when disciplined by the defendants in comparison to their Caucasian or non-Black/African American counterparts.

Although Hall was threatened with violence by a Caucasian co-worker and reported it to his supervisors, the Caucasian co-worker was not disciplined. Rather, the supervisor told Hall to fight so he could fire him.

The plaintiffs were referred to as "Bad Apples." The plaintiffs experienced retaliation due to their complaints. The plaintiffs were shorted work hours. They experienced retaliation for making complaints. The defendants created an unsafe and hostile work environment for the plaintiffs. The plaintiffs allege that their work environment had become unsafe and hostile.

By stipulation dated January 9, 2020. the remaining plaintiffs withdrew the following causes of action: (3) wrongful termination; (4) punitive damages; (5) violation of the labor law; (8) mixed motive; (9) religious discrimination; (11) quantum meruit; (12) unjust enrichment. The remaining causes of action include racial discrimination, hostile work environment, retaliation, breach of contract, breach of the collective bargaining agreement, and defamation.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as...