Colon v. City Of New York

Filing 76

OPINION AND ORDER re: 44 MOTION for Reconsideration re; 43 Memorandum & Opinion, Add and Terminate Parties filed by Sibyl Colon. For the reasons stated herein, Plaintiff's motion for reconsideration is GRANTED. I hereby amend my March 26, 2018 Opinion & Order and find that Defendant Council Speaker's motion to dismiss the aiding & abetting claim brought pursuant to § 296(6) is DENIED. The Clerk of Court is respectfully directed to terminate the pending motion at Document 44, and to reinstate Defendant Melissa Mark-Viverito as a Defendant in this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/22/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
SIBYL COLON,
:
:
Plaintiff,
:
:
- against :
:
THE CITY OF NEW YORK, NEW YORK
:
CITY HOUSING AUTHORITY, NEW YORK :
:
CITY COUNCIL SPEAKER MELISSA
MARK-VIVERITO, MICHAEL KELLY, and :
:
BRIAN CLARKE,
:
Defendants. :
:
---------------------------------------------------------- X

3/22/2019

16-CV-4540 (VSB)
OPINION & ORDER

Appearances:
Marcel Florestal
Florestal Law Firm, PLLC
New York, New York
Counsel for Plaintiff
Jane Elizabeth Lippman
Donna Marie Murphy
New York City Housing Authority
New York, New York
Counsel for Defendants NYCHA, Michael Kelly, and Brian Clarke
John Corbin Carter
Heather Marie Martone
New York City Law Department
New York, New York
Counsel for Defendants the City of New York and
New York City Council Speaker Melissa Mark-Viverito
VERNON S. BRODERICK, United States District Judge:
Before me is Plaintiff Sibyl Colon’s (“Plaintiff”) motion for reconsideration pursuant to
Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern

Districts of New York. (Doc. 44.) Plaintiff requests that I vacate that portion of my March 26,
2018 Opinion & Order that dismissed the claim against Defendant New York City Council
Speaker Melissa Mark-Viverito 1 for aiding and abetting under New York State Human Rights
Law, N.Y. Exec. L. § 296(6) (“§ 296(6)”). (Id.) Because I failed to consider a controlling
decision, Plaintiff’s motion for reconsideration is GRANTED.
Procedural History 2
Plaintiff commenced this action by filing her complaint on June 17, 2016, alleging: (1)
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290 et seq., and the New
York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq.; (2) hostile
work environment based on age, race, and gender; (3) violation of 42 U.S.C. § 1983; (4)
violation of 42 U.S.C. § 1985; (5) First Amendment retaliation; (6) aiding and abetting; (7)
violation of her Fourteenth Amendment due process rights; and (8) intentional infliction of
emotional distress. (Doc. 1.) On December 12, 2016, Defendants New York City Housing
Authority (“NYCHA”), Michael Kelly, and Brian Clarke (collectively, “NYCHA Defendants”),
filed a motion to dismiss. (Docs. 24–26.) On the same day, Defendants City of New York (the
“City”) and former New York City Council Speaker Melissa Mark-Viverito (the “Council
Speaker,” and together with the City, “City Defendants”), also filed a motion to dismiss. (Docs.
27–29.) Plaintiff filed her opposition to both motions on January 26, 2017. (Doc. 34.) The
NYCHA Defendants filed a reply on February 8, 2017, (Doc. 35), as did the City Defendants,
(Doc. 36). Plaintiff submitted a letter supplementing the case law relevant to my consideration

1

Melissa Mark-Viverito was Council Speaker at the time the Complaint was filed. (See Doc. 1, ¶ 9.)

2

A detailed procedural history and factual background of this case is included in my March 26, 2018 Opinion &
Order, (Doc. 43).

2

of the motions on May 9, 2017, (Doc. 37), and the City Defendants submitted their response on
May 11, 2017, (Doc. 38).
On March 26, 2018, I filed an Opinion & Order, granting in part and denying in part the
NYCHA Defendants’ motion to dismiss, and granting the City Defendants’ motion to dismiss in
its entirety. (Doc. 43.) On April 9, 2018, Plaintiff filed a motion for reconsideration, requesting
that I vacate the Opinion & Order to the extent that it dismissed the claim against the Council
Speaker for aiding and abetting under New York State Human Rights Law, N.Y. Exec. L. §
296(6). (Doc. 44.) The Council Speaker filed her opposition on April 23, 2018, (Doc. 50), and
Plaintiff filed her reply on May 4, 2018, (Doc. 55).
Legal Standards
Motions for reconsideration are considered under Local Civil Rule 6.3. The standard for
reconsideration under Rule 6.3 “is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked—matters, in
other words, that might reasonably be expected to alter the conclusion reached by the court.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
The NYSHRL provides that “[i]t shall be an unlawful discriminatory practice for any
person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this
article, or to attempt to do so.” N.Y. Exec. L. § 296(6). “It is the employer’s participation in the
discriminatory practice which serves as the predicate for the imposition of liability on others for
aiding and abetting.” DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999) (quoting
Murphy v. ERA United Realty, 674 N.Y.S.2d 415, 417 (2d Dep’t 1998)). The New York Court
of Appeals has held that § 296(6) “extends liability to persons and entities beyond joint
employers, and this provision should be construed broadly.” Griffin v. Sirva, Inc., 29 N.Y.3d

3

174, 187 (2017). “The same standards of analysis used to evaluate aiding and abetting claims
under the NYSHRL apply to such claims under the NYCHRL because the language of the two
laws is virtually identical.” Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (internal
quotation marks omitted).
Discussion
Plaintiff argues that the New York Court of Appeals’ decision in Griffin v. Sirva, 29
N.Y.3d 174, is a controlling decision that was not addressed in my Opinion & Order, and that,
under Griffin, § 296(6) is applicable to the Council Speaker. I failed to consider Griffin in my
Opinion & Order, and for the reasons that follow I find that § 296(6) is applicable to the Council
Speaker.
The Council Speaker contends that she cannot be held liable for aiding and abetting
because she was not Plaintiff’s employer. (Council Speaker’s Opp. 4–6.) 3 However, the New
York Court of Appeals has clearly held that § 296(6)’s use of the phrase “any person” should be
“construed broadly.” Griffin, 29 N.Y.3d at 187. As the Court explained,
[N]othing in the statutory language or legislative history [of § 296(6)] limits the
reach of this provision to employers. Indeed, the purpose of subdivision (6) was to
bring within the orbit of the bill all persons, no matter what their status, who aid or
abet any of the forbidden practices of discrimination or who attempt to do so, as
well as to furnish protection to all persons, whether employers, labor organizations
or employment agencies, who find themselves subjected from any source to
compulsion or coercion to adopt any forbidden employment practices.
Id. (internal quotation marks omitted). The Council Speaker attempts to distinguish Griffin by
pointing out that the defendant in Griffin was a company that conducted background checks and
that entered into a contract with the employer to conduct background checks, whereas here, the

3

“Council Speaker’s Opp.” refers to Defendant New York City Council Speaker Melissa Mark-Viverito’s
Memorandum of Law in Opposition to Plaintiff’s Motion for Reconsideration and Reargument, filed April 23, 2018.
(Doc. 50.)

4

Council Speaker had no legal relationship with NYCHA or Plaintiff. (Council Speaker’s Opp.
4.) As an initial matter, the Council Speaker’s assertion that she—as Council Speaker—had no
legal relationship with NYCHA or Plaintiff is not entirely correct. The New York City Council
is “[s]imilar to Congress at the federal level, [acts as] New York City’s legislative body,” and
operates separately “from the Mayor’s administration but [is] an equal partner in how [New York
City] is run.” What We Do, N.Y.C. Council, https://council.nyc.gov/about/ (last visited Mar. 19,
2019). “The [Council] Speaker is elected by Council Members and leads [the Council] in setting
priorities, passing laws, and directing public money for the benefit of New Yorkers.” (Id.) And
the New York City Council, Committee on Public Housing “has jurisdiction over the New York
City Housing Authority.” Committee on Public Housing, N.Y.C. Council,
https://council.nyc.gov/committees/public-housing/ (last visited Mar. 19, 2019). Therefore,
contrary to the Council Speaker’s assertion, the New York City Council has jurisdiction over
NYCHA. In any event, nothing in Griffin, the language of § 296(6), or the legislative history
suggests a requirement that the aider and abettor must have a legal relationship with the
employer in order to be held liable. Due to the Court of Appeals’ broad interpretation of
§ 296(6), I find that § 296(6) applies to the Council Speaker.
The Council Speaker also contends that even if § 296(6) applies to the Council Speaker,
her comments “could not plausibly be deemed to have aided NYCHA in discriminating against
Plaintiff based on Plaintiff’s own protected characteristics.” (Council Speaker’s Opp. 6.)
However, the Council Speaker’s statement that she wanted to replace the manager, an African
American, with a “Spanish Manager,” (Compl. ¶ 29; see also id. ¶ 31), 4 could plausibly be
interpreted as evincing discriminatory animus on the basis of race and/or national origin.

4

“Compl.” refers to the Complaint, filed June 16, 2016. (Doc. 1.)

5

Moreover, the Council Speaker’s comments, in addition to Clarke’s instructions to Plaintiff to
inform Human Resources personnel that the Council Speaker had requested that the manager’s
employment be terminated because of the “cultural sensitivity” needs of the residents, (id. ¶ 35),
and his later comments that he was frustrated that Plaintiff had not yet fired the African
American manager because “the Council Speaker want[s] it done,” (id. ¶ 50), plausibly suggest
that the Council Speaker had some influence on the discriminatory acts of NYCHA, Clarke, and
Kelly. To the extent that my March 26, 2018 Opinion & Order found or suggested otherwise, I
now amend that Opinion & Order. 5
Conclusion
For the reasons stated herein, Plaintiff’s motion for reconsideration is GRANTED. I
hereby amend my March 26, 2018 Opinion & Order and find that Defendant Council Speaker’s
motion to dismiss the aiding & abetting claim brought pursuant to § 296(6) is DENIED. The
Clerk of Court is respectfully directed to terminate the pending motion at Document 44, and to
reinstate Defendant Melissa Mark-Viverito as a Defendant in this case.
SO ORDERED.
Dated: March 22, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge

5

On September 24, 2018, the Council Speaker filed a motion for reconsideration of a September 10, 2018 Opinion
& Order I filed in a related case. See Williams v. City of New York, No. 16-cv-8193 (S.D.N.Y.), ECF Nos. 34, 35.
In light of this Opinion & Order, I am denying the Council Speaker’s motion in that case without prejudice to refile
within fourteen days.

6