Melendez v. County Of Westchester et al

Filing 45

OPINION AND ORDER. For the foregoing reasons, Defendants' Motion to Reconsider is GRANTED. Accordingly, Plaintiff's claims for sex-based discrimination and retaliation under New York State law are DISMISSED. Defendants are directed to answe r the Amended Complaint by February 22, 2019 and submit a completed case management plan to chambers by March 1, 2019. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 43. So ordered. re: 43 MOTION for Reconsider ation re; 42 Memorandum & Opinion, Set Deadlines on the limited issue of Plaintiff's failure to comply with NYS Notice of Claim requirements filed by Westchester County Department of Corrections Superior Office, County Of Westches ter, Kevin M. Cheverko. Kevin M. Cheverko answer due 2/22/2019; County Of Westchester answer due 2/22/2019; Westchester County Correction Officers Union, Inc. answer due 2/22/2019; Westchester County Department of Corrections Superior Office answer due 2/22/2019; Westchester County Department of Public Safety Services Benevolent Association answer due 2/22/2019. (Signed by Judge Nelson Stephen Roman on 1/23/2019) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHELLE MELENDEZ,
Plaintiff,
-againstCOUNTY OF WESTCHESTER, WESTCHESTER
COUNTY DEPARTMENT OF CORRECTIONS
SUPERIOR OFFICE, and KEVIN CHEVERKO,
individually and in his official capacity,

17-cv-963 7 (NSR)
OPINION & ORDER

Defendants.

NELSONS. ROMAN, United States District Judge
On December 7, 2017, Plaintiff Michelle Melendez ("Plaintiff'), a former Correctional
Officer trainee at the Westchester County Department of Corrections Superior Office ("DOC"),
commenced this action under: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 2000e-17, the American Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq. ("ADA"), 42 U.S.C.
§ 1983, New York State Human Rights Law Executive Law§ 296, and Tortious Interference under
New York State Tort Law. (See Complaint ("Compl."), ECF No. 1; Amended Complaint, ("AC"),
ECF No. 31.) Plaintiff alleged that while a trainee, she was subject to sex/gender discrimination,
disability discrimination, sexual harassment, a hostile work environment, retaliation, and wrongful
termination by the County of Westchester, Westchester County Department of Corrections
Superior Office, and Kevin Cheverko (collectively, "Defendants").
On January 16, 2019, this Court issued an Opinion and Order in which it GRANTED in
pati and DENIED in part Defendants' Motion to Dismiss. (See ECF Nos. 37, 42.):

l. •.

Defendants' Motion to Dismiss is GRANTED as to Plaintiffs claims for: disabilitybased discrimination and retaliation under the ADA and New York State law, sexbased discrimination under Title VII, tortious interference under New York State
Law, and Section 1983 based on a due process violation.
Defendants' Motion to Dismiss Plaintiffs claims for sex- based discrimination and
retaliation under New York State law is DENIED, and similarly, Defendants'
Motion to Dismiss her 1983 claim based on an equal protection theory is DENIED.
(See ECF No. 42.)

Presently before the Court is Defendants' Motion for Reconsideration on the limited issue
of Plaintiff's failure to comply with NYS Notice of Claim Requirements. (See ECF No. 43.)

BACKGROUND
The Comi presumes the parties' familiarity with the facts of this case and will recite only
those necessary for adjudicating the instant motion.
Plaintiff raised sex and disability-based discrimination and retaliation claims under New
York State Human Rights Law Executive Law §§ 296-97. (Amended Compl.

~~

69-76.) The

pmiies agree that the pleading standards for discrimination and retaliation claims raised under New
York State Law mirror the pleading requirements under Title VII and the ADA. (See Def. Mem.
at 17-18; Pl. Opp. at 21.) Additionally, the parties agree that Plaintiff did not file a notice of claim
pursuant to New York State County Law Section 52 with regards to her state law claims. (See ECF
Nos. 38, 41, 43, 44.) Defendants argue that this procedural deficiency is fatal to Plaintiff's state
law claims. (See Defendant's Letter, ECF No. 43) ("Impmiantly, notice of claim requirements are
strictly construed and failure to comply requires dismissal.")(citing Hardy v. Ne1-v York City Health
& Hasps. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999)). Plaintiff, however, contends that the notice

of claim requirements set out in N.Y. Cnty. Law Section 52 only apply to tort claims based on
General Municipal Law Section 50-e. (See Plaintiff's Letter, ECF No. 44) (citing Margerum v.
City of Buffalo, 24 N.Y.3d 721, 733, 28 N.E.3d 515 (2015)). This Court agrees with Defendants.
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ANALYSIS

In Russell v. Westchester Cmty. Coll., 2017 U.S. Dist. LEXIS 159540, at* 15-21 (S.D.N.Y.
Sept. 27, 2017), this Court discussed the exact opinion split that the parties presently have. There,
too, the defendants argued that New York state claims for employment discrimination or retaliation
brought under state law in federal court are subject to New York state procedural rules and that,
"in general, as a condition precedent to bringing a claim against a municipality, a plaintiff must
file a notice of claim within 90 days after her claim accrues." (Id.) (citing cases.) And there, too,
the plaintiff tried to argue that the plain meaning of N. Y. Cnty. Law Section 52 as well as the
exclusionary language of General Municipal Law Section 50-e made the notice of claim
requirements inapplicable, where the action was not a tort action. (Id.)
The Russell Court explained in depth why the notice of claim requirements set out in N.Y.
Cnty. Law Section 52 do, in fact, apply to employment claims brought against municipal entities,
particularly considering the decisions in Margerum, 24 N. Y.3d 721, which the present paiiies both
cite, and Sager v. County of Sullivan. See id. ("a notice of claim remains a prerequisite to
employment discrimination claims against the County.") (citing Sager v. County of Sullivan, 145
A.D.3d 1175, 41 N.Y.S.3d 443,444 (App. Div. 2016)) ("By comparison, County Law§ 52 applies
to the claim against [a county] . . . and mandates notices of claim in a much broader scope of
matters ... requiring that a notice of claim be filed for "any claim ... against a county for damage"
or II any other claim for damages arising at law or in equity.")
This Court has reviewed the language of both statutes and the case law cited by both parties.
It reaches the same conclusion as the Russell Court and finds it clear that the notice of claim

requirements set out in County Law Section 52 do generally apply to New York State Human
Rights Law Claims for employment discrimination and retaliation.

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Here, Plaintiff has not complied with those notice requirements. Accordingly, Defendants'
Motion for Reconsideration is granted.
CONCLUSION

For the foregoing reasons, Defendants' Motion to Reconsider is GRANTED. Accordingly,
Plaintiffs claims for sex-based discrimination and retaliation under New York State law are
DISMISSED. Defendants are directed to answer the Amended Complaint by February 22, 2019
and submit a completed case management plan to chambers by March 1, 2019.
The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 43.

Dated:

January 23, 2019
White Plains, New York

SO ORDERED:

(E:L~QN-S:~R6MA~
UnitecCStates District Judge

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