Petgrave v. Delta Airlines, Inc.

Unpublished Opinion

At an IAS Term, Part 35 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 29th day of August, 2023.

PRESENT: HON. KAREN B. ROTHENBERG, Justice.

Karen B. Rothenberg, Judge

The following e-filed papers read herein:	NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross
Motion and Affidavits (Affirmations)	26-30
Opposing Affidavits (Affirmations)	65-67

Upon the foregoing papers in this action for employment discrimination on the basis of race, color, sex and/or age, third-party defendant Creative Construction Services Corp.

(Creative) moves (M.S. 1) for an order, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the amended third-party complaint, directing that judgment be entered in its favor and awarding it costs and disbursements.

Background

On November 20, 2021, plaintiffs Marlon Petgrave (Petgrave), Maverlyn Williams (Williams), George W. Kennedy (Kennedy) and Corey Wade (Wade) commenced this action by filing a summons and a complaint verified by counsel, which alleges that Plaintiffs were discriminated against by defendants, Delta Air Lines, Inc. (Delta), Satterfield & Pontikes Construction, Inc. (Satterfield) and STV Construction, Inc. (STV) (collectively, Defendants and Third-Party Plaintiffs), who, along with Creative, jointly employed them (id.). The complaint alleges that:

"[t]his is an action for money damages to remedy discrimination on the basis of race, color, sex and/or age in the terms, conditions and privileges of employment, disparate treatment, hostile work environment, retaliation and wrongful termination under the New York State Human Rights Law, New York State Exec. Law, § 296 et seq. ('NYSHRL') New York City Human Rights Law as contained in the Administrative Code of the City of New York, § 8-101 et seq. ('NYCHRL') against the Defendants.

"This . . . action arises from the same and/or similar set of facts and circumstances evidencing the violation of the human rights of Plaintiffs, who are all African American laborers and/or carpenters by Defendants DELTA AIR LINES, INC., SATTERFIELD &PONTIKES CONSTRUCTION ('SATTERFIELD'), INC., STV CONSTRUCTION, INC. ('STV'), who individually and jointly discriminated against, interfered with and adversely affected Plaintiffs' terms of employment because of their race, color and/or age. Plaintiffs were treated less than their white male coworkers and were

deprived wages and other benefits in violation of the NYS and NYC Human Rights Law which entitle them to compensatory and punitive damages.

"Specifically, Plaintiffs allege that while working on a Delta Airlines Project, at La Guardia Airport, Defendant DELTA, by its construction managers, SATTERFIELD and STV (collectively 'CMA'), they were subjected to a racially hostile work environment, racially derogatory and offensive comments, microaggressions, ridicule and insult, were denied equal treatment under the law as to pay, assignment of work, breaks, performance, and discipline in comparison to white male workers on the jobsite and were targeted for termination without justification for their skin color and replaced by white workers which interfered with their ability to work and cost them their job" (id. at ¶¶ 1-3 [emphasis added]).

The complaint contains the following allegations about Creative:

"[a]t all relevant times, Creative . . . is a minority owned and operated contracting firm that employs minority workers, laborers, and carpenters.

"Defendants hired Creative to supply labor for the Delta LaGuardia Project. Most of the laborers and employees supplied by Creative for Defendants' jobsite were African American.

"At all relevant times, Defendants supervised Creative's labor, including and in particular, the Plaintiffs.

"At all relevant times, Defendants employed, supervised, managed and/or controlled the work and work conditions of the Plaintiffs during the course of their employment on the Delta project at LaGuardia airport" (id. at ¶¶ 35-38).

The complaint further alleges that Defendants sought to replace Creative's African American workers. In November 2018, Delta allegedly directed Creative's owner, Hanson James (James), to terminate Williams and other African American employees in email

correspondence. In addition to Williams, Delta allegedly directed Creative to terminate Wade and Kennedy from the Delta LaGuardia Project.

The complaint asserts = ten causes of action against Defendants: (1) violation of NYSHRL for creating a hostile work environment on the basis of race; (2) violation of NYCHRL for creating a hostile work environment on the basis of race; (3) disparate treatment based on race in violation of NYSHRL; (4) disparate treatment based on race in violation of NYCHRL; (5) disparate impact based on race in violation of NYSHRL; (6) disparate impact based on race in violation of NYCHRL; (7) violation of NYSHRL basis on William's gender; (8) violation of NYCHRL based on William's sex; (9) disparate treatment based on William's and Kennedy's age in violation of NYSHRL; and (10) disparate treatment based on William's and Kennedy's age in violation of NYCHRL.

On April 25, 2022, Defendants collectively answered the complaint and denied the material allegations therein. On the same date, Defendants/Third-Party Plaintiffs also filed a third-party summons and complaint against Creative asserting claims for contractual and common law indemnification, contribution, equitable estoppel and unjust enrichment.

On May 5, 2022, Defendants/Third-Party Plaintiffs filed an amended third-party summons and complaint alleging that:

"[a]t all times relevant to the Individual Plaintiffs' Complaint, the Individual Plaintiffs were employed by Creative. Defendants neither employed Plaintiffs nor had the authority to supervise, manage, direct, or control Plaintiffs in the performance of their work".

The first third-party claim asserted against Creative is for contractual indemnification and alleges that:

"[p]ursuant to Section 4.18 of the Construction Agreement, Creative is required to release, indemnify, defend, and hold the [Third-Party Plaintiffs] harmless, to the fullest extent permitted by law, for any claims, damages, and other losses 'that arise out of or result from or are alleged to arise out of or result from any act(s) or omission(s) by [Creative] in the performance of the Work or other obligations for or on the Project . . . or in connection with the performance or nonperformance of any other obligations of [Creative] under the Contract or Applicable Law, including, but not limited to, Losses arising out of or resulting from [a]ny violation of federal, state and local laws, regulations, rules, codes and ordinances'" (id. at ¶ 13).

The second claim asserted for common law indemnification alleges that:

"[t]o the extent that the Individual Plaintiffs sustained injuries and damages in the manner alleged in their Complaint against the [Third-Party Plaintiffs], such injuries and damages were caused by reason of the negligence of Creative and/or its employees during the scope of their employment" (id. at ¶ 16 [emphasis added]).

The third claim asserted against Creative for contribution alleges that:

"[b]y reason of the foregoing, the [Third-Party Plaintiffs] are entitled to contribution from Creative, and to have judgment over and against Creative, for all or part of any verdict, judgment, award, or relief claimed or obtained by the Individual Plaintiffs against the [Third-Party Plaintiffs] in this action" (id. at ¶ 19).

The fourth claim asserted for equitable estoppel seeks restitution and alleges that:

"[t]he [Third-Party Plaintiffs] reasonably relied upon representations made by Creative that it would fully indemnify them for any liability associated with Creative's own employees, and Creative was aware or reasonably should have

been aware of its representations as to indemnification [in the Construction Agreement]" (id. at ¶ 21).

The fifth claim asserted for unjust enrichment seeks restitution and alleges that:

"[t]o the extent that the [Third-Party Plaintiffs] are deemed to be liable for all or part of any verdict, judgment, award, or relief claimed or obtained by the Individual Plaintiffs against the [Third-Party Plaintiffs] in this action, Creative will have been enriched at the expense of the [Third-Party Plaintiffs].

"Such enrichment is contrary to equity and good conscience, because Creative was the Individual Plaintiffs' employer during the relevant time period" (id. at ¶¶ 24-25).

The Instant Pre-Answer Dismissal Motion

On August 12, 2022, Creative filed this pre-answer motion to dismiss the amended third-party complaint....