Ellis v. County of Monroe et al

Filing 52

DECISION & ORDER. For the reasons stated, the County of Monroe and 691 St. Paul Street, LLC's 45 motion for summary judgment is GRANTED. The Clerk of Court is directed to enter judgment in their favor as to the claims against them (claims si x through nine) and terminate them as parties. By separate order, the Court will set a status conference to set a trial date for the remaining claims against Defendant Washington. Signed by Hon. Frank P. Geraci, Jr. on 9/16/19. (GMS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RONICCA ELLIS,
Plaintiff,
Case # 16-CV-6788-FPG
DECISION AND ORDER

v.
WILLIE C. WASHINGTON,
COUNTY OF MONROE, and
691 ST. PAUL STREET, LLC,
Defendants.

INTRODUCTION
Plaintiff Ronicca Ellis brings this action against Defendants Willie C. Washington, the
County of Monroe (the “County”), and the County’s landlord, 691 St. Paul Street, LLC (the
“Landlord”), arising from Washington’s sexual harassment and assault of Plaintiff while she was
working under his supervision in the Monroe County Work Experience Program (“WEP”). Now
before the Court is the County and the Landlord’s motion for summary judgment on all of
Plaintiff’s claims against them. ECF No. 45. For the reasons below, the motion is GRANTED.
BACKGROUND1
In 2016, Plaintiff participated in Monroe County’s WEP, an initiative providing work
experience to individuals receiving public assistance from the County. Her participation in the
WEP required her to work as a janitorial trainee and was a mandatory condition of receiving public
assistance. On July 18, 2016, Plaintiff attended a group orientation at her assigned WEP site, the
Monroe County Department of Social Services Building, located at 691 St. Paul Street in
Rochester, New York. She was told that she would be reporting to Washington.

These facts are taken from the complaint and the parties’ Rule 56 facts statements are presumed to be true for the
purpose of this motion.
1

1

Washington was hired by the County in February 1999 as a custodial worker with no
supervisory responsibility. On his employment application, he marked “no” when asked whether
he had been convicted of any violation other than a minor traffic violation. In March 2013,
Washington was promoted to a maintenance and repair position with no supervisory
responsibilities. On his application for promotion, he marked “yes” to the conviction question to
which he had previously answered “no.” As a result, he had to complete a “Conviction and/or
Removal from Employment Explanation Form,” on which he indicated that he had been convicted
of “abuse” in 1988.
Brayton Connard, the Director of Human Resources for Monroe County, reviewed the
Conviction Form pursuant to Article 23 of the Corrections Law to determine if the conviction
would preclude Washington from promotion and/or continued employment with the County.
Connard determined that, considering the length of time since the conviction and the nature of the
maintenance job, the conviction did not preclude Washington’s promotion.
During his employment with the County, Washington was disciplined twice: once in 2005
for putting his arms around a female employee and lifting her up into the air, allegedly injuring
and frightening her (the “2005 lifting incident”), and once in 2008 for tardiness. Before Plaintiff’s
allegations in this case, the County had never received any complaints regarding Washington’s
interaction with WEP participants.
Although Washington’s formal positions with the County were not supervisory in nature,
he was involved the WEP program and was responsible for assigning participants at 691 St. Paul
Street daily custodial chores and recording their working time. And as noted, Plaintiff was told
that she would be reporting to him.

2

On July 18, 2016, Plaintiff’s first day with the WEP, Washington did not say anything
sexually harassing or discriminating to her. But on July 25 and 26 and August 1, Washington
made several crude sexual remarks and gestures to Plaintiff. Then, on August 3, 2016, Washington
asked Plaintiff to accompany him to the supply room so that she could help him gather janitorial
supplies. Once Washington and Plaintiff were inside the supply room, Washington blocked the
doorway and raped her.
When the County was notified of Plaintiff’s allegations against Washington, it placed him
on unpaid administrative leave pending an investigation. Shortly thereafter, Washington resigned.
The County could therefore not require him to participate in an investigatory interview and could
not discipline him.

Had Washington not resigned, the County would have completed an

investigation.
In November 2016, Plaintiff brought this action against Defendants.2
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
While the court must view the inferences to be drawn from the facts in the light most favorable to
the nonmoving party, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986), a party may not “rely on mere speculation or conjecture as to the true nature of the facts to

2

Plaintiff originally sued three other defendants: the Monroe County Department of Human Services, the Monroe
County Work Experience Program, and Rochesterworks, Inc. The Court dismissed these defendants on July 25, 2018.
ECF No. 42.

3

overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.
1986).
The non-moving party may defeat the summary judgment motion by making a showing
sufficient to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). However, “mere conclusory allegations or denials” are not evidence
and cannot by themselves create a genuine issue of material fact where none would otherwise exist.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
DISCUSSION
Plaintiff asserts nine claims in this action:
1)
2)
3)
4)
5)
6)
7)
8)
9)

assault against Washington;
battery against Washington;
false imprisonment against Washington;
intentional infliction of emotional distress against Washington;
negligent infliction of emotional distress against Washington;
a 42 U.S.C. § 1983 claim against Washington;
negligence against the County and the Landlord;
negligent hiring, training, retention, or supervision against the County; and
a New York Human Rights Law (“NYHRL”) § 296 sexual harassment and
discrimination claim against the County.

Only the County and the Landlord move for summary judgment; thus, the Court addresses claims
six through nine only.
I.

Sixth Claim: Section 1983 Monell Claim Against the County
Plaintiff brings her § 1983 claim against Washington and does not state whether it is against

him individually or in his official capacity, but the Court and the parties treat the claim as brought
against him in both capacities. The official capacity claim is treated as a suit against the County.
See Kentucky v. Graham, 473 U.S. 159, 166 (1985).

4

To state a § 1983 claim, a plaintiff must allege a violation of constitutional or United States
statutory rights by someone acting under color of state law.3 “The Second Circuit has held that
sexual harassment is a form of sex-based discrimination that violates the Equal Protection clause
and, hence, gives rise to a Section 1983 cause of action.” Perks v. Town of Huntington, 251 F.
Supp. 2d 1143, 1161 (E.D.N.Y. 2003).
However, a municipality4 may only be liable under § 1983 if it “itself subjects a person to
a deprivation of rights or causes a person to be subjected to such deprivation. In other words,
municipalities are responsible only for their own illegal acts, and cannot be held vicariously liable
under § 1983 for their employees’ actions.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)
(citations and quotation marks omitted).
Thus, to hold the County liable under § 1983, Plaintiff “must establish liability under
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). Specifically, she must
[establish] that her treatment was the result of an unconstitutional policy statement, ordinance,
regulation or decision officially adopted and promulgated by the County’s officers.” Piston v. Cty.
of Monroe, No. 08-CV-6435P, 2012 U.S. Dist. LEXIS 139520, at *47-48 (W.D.N.Y. Sep. 27,
2012). This need not be an express rule or regulation. Id. Instead,
a plaintiff may establish an official policy or custom by demonstrating that: (1) a
discriminatory practice of municipal officials was so persistent or widespread that
it constituted a custom; (2) a discriminatory practice by subordinate employees was
so manifest as to imply the constructive acquiescence of senior policy-making
officials; (3) the municipality so consistently fail[ed] properly to investigate and
address allegations of sexual harassment [that the] conduct be[came] an accepted
Defendants argue that Washington was not acting under color of law because he was merely “a custodian asking
another worker to help him gather janitorial supplies.” ECF No. 45-7 at 33. However, an employee can be found to
be acting under color of law where he exercises actual authority over the plaintiff-employee, even where there is no
formal supervisory relationship. Beattie v. Guilderland Cent. Sch. Dist., 124 F. Supp. 2d 802, 807 (N.D.N.Y. 2000).
Here, there is evidence that Washington was Plaintiff’s supervisor. Taking the evidence in the light most favorable to
Plaintiff, the Court cannot find as a matter of law that Washington was not acting under color of law.
3

Municipalities include counties. See Silver Star Ass’n v. Cty. of Oswego, 56 F. Supp. 2d 263, 266 (N.D.N.Y. 1999)
(“Municipalities, including counties, can be liable under § 1983 . . . .”).
4

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custom or practice of the employer; or (4) the municipality’s failure to train its
employees demonstrated a deliberate indifference to the constitutional rights of
those within its jurisdiction.
Id. (internal citations and quotations omitted).
Here, Plaintiff asserts Monell liability against the County based on a failure to train theory.
Plaintiff’s Monell claim fails.
“A municipality can indeed be held liable under Section 1983 for inadequate training, but
only in very limited circumstances.” Perks, 251 F. Supp. 2d at 1163. Specifically, “a municipality
can be liable for failing to train its employees where it acts with deliberate indifference in
disregarding the risk that its employees will unconstitutionally apply its policies without more
training.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing Canton
v. Harris, 489 U.S. 378, 389 (1989)).
The Second Circuit has identified four requirements for demonstrating that a municipality’s
failure to train amounted to deliberate indifference. First, “the municipal policymaker must know
‘to a moral certainty’ that employees will confront a given situation.” Perks, 251 F. Supp. 2d at
1163 (citing Walker v. City of N.Y., 974 F.2d 293, 297-98 (2d Cir. 1998)). Second, the situation
must “either present[] employees with the type of difficult choices . . . that training or supervision
would make less difficult, or employees [must] have a history of mishandling the situation.” Id.
Third, “the wrong choice by employees [must] frequently cause the deprivation of a citizen’s
constitutional rights.” Id. And fourth, “at the summary judgment stage, plaintiffs must ‘identify
a specific deficiency in the [municipality’s] training program and establish that that deficiency is
closely related to the ultimate injury, such that it actually caused the constitutional deprivation.’”
Richardson v. City of N.Y., No. 04 Civ. 05314 (THK), 2006 U.S. Dist. LEXIS 92731, at *40
(S.D.N.Y. Dec. 21, 2006) (quoting Green v. City of N.Y., 465 F.3d 65, 80-81 (2d Cir. 2006)).

6

Plaintiff has not established that these requirements are met here. Perks and Richardson help
illustrate why.
In Perks, the plaintiff sued his employer to hold it liable for his supervisor’s sexual
harassment because the employer had not fully implemented a sexual harassment policy or trained
its employees on sexual harassment, despite having received some complaints. 251 F. Supp. 2d at
1163. The court granted summary judgment to the employer because there was no evidence that
it knew “‘to a moral certainty’ that sexual harassment was prevalent among its employees, such
that its failure to take action [could] be characterized as deliberate indifference.” Id.
In Richardson, the plaintiff’s probation officer allegedly coerced the plaintiff into engaging
in sexual acts. 2006 U.S. Dist. LEXIS 92731 at *1-2. The plaintiff sought to hold New York City
liable for failing to properly train the probation officer. Id. at *2. The court granted summary
judgment in favor of the city because the plaintiff did not show that “probation officers are so
confused about, or oblivious to, the impropriety of such overt or implicit coercion that a failure of
training and supervision makes it more likely that they will engage in the improper behavior.” Id.
at *29. In other words, the plaintiff did not show that probation officers face a difficult choice and
“require some sort of training to educate them that they should not be coercing sexual activity with
people under their supervision.”

Id. (citing Walker, 974 F.2d at 299 (“Where the proper

response . . . is obvious to all without training or supervision, then the failure to train or supervise
is generally not ‘so likely’ to produce a wrong decision as to support an inference of deliberate
indifference by city policymakers to train or supervise.”)). Further, the plaintiff failed to show that
the city was aware of a pattern of misconduct but failed to institute appropriate training or
supervision in response, and also failed to identify a specific deficiency in the training program
that was closely related to the injury. Id. at *30, 37.

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Similarly, here, Plaintiff fails to show that the County knew “to a moral certainty” that
sexual harassment was prevalent among its employees, or that its employees would confront a
sexual harassment situation, and that its failure to act amounted to deliberate indifference. Plaintiff
has identified no pattern of misconduct that a training program would rectify. Instead, the evidence
shows that, before Plaintiff’s allegations, other than the complaint from the co-worker about the
2005 lifting incident, the County had never received any complaints of harassment or
discrimination against Washington. The County had never received any complaints regarding
Washington’s interactions with WEP participants, and it had no record of any complaints of sexual
harassment or hostile work environment within the last ten years at the 691 St. Paul Street location.
Plaintiff has also not shown that County employees like Washington face a difficult choice
and “require some sort of training to educate them that they should not be” sexually harassing and
raping “people under their supervision.” Richardson, 2006 U.S. Dist. LEXIS 92731, at *29.
Accordingly, the Court finds that Plaintiff has failed to establish a Monell claim against the
County and GRANTS summary judgment in favor of the County on Plaintiff’s sixth claim. This
claim remains pending against Washington in his individual capacity.
II.

Seventh Claim: Negligence Against the County and the Landlord
In her seventh claim, Plaintiff claims that the County was negligent because it failed to

investigate the nature of Washington’s 1988 “abuse” conviction, and if it had, it would have
discovered that the conviction was for sexual assault. She also claims that the County failed to
properly train or supervise its employees on sexual harassment and thereby allowed Washington
to sexually harass and rape Plaintiff.
Plaintiff’s seventh claim fails. First, “[a] municipality cannot be sued for common law
negligence unless the municipality owed a special duty to the plaintiff.” Paul v. City of N.Y., No.

8

16-CV-1952 (VSB), 2017 U.S. Dist. LEXIS 156416, at *26 (S.D.N.Y. Sep. 25, 2017); see also
Hunter v. Cty. of Orleans, No. 12-CV-6173, 2013 U.S. Dist. LEXIS 164310, at *18 (W.D.N.Y.
Nov. 19, 2013) (granting summary judgment on plaintiff’s negligence claim against the county
where no special relationship was established). Plaintiff has not asserted or established a special
duty or relationship here. See Horan v. Boces, No. CV 14-7345 (LDW) (GRB), 2015 U.S. Dist.
LEXIS 144754, at *8 (E.D.N.Y. Oct. 26, 2015); Genao v. Bd. of Educ., 888 F. Supp. 501, 508
(S.D.N.Y. 1995) (both holding that employer-employee relationship does not create special duty).
Second, to the extent Plaintiff attempts to state an independent claim for negligent
investigation, New York does not recognize such a claim. Duartes v. Cty. of Nassau, No. 07-CV2929 (JS) (WDW), 2008 U.S. Dist. LEXIS 131330, at *23-24 (E.D.N.Y. Sep. 30, 2008) (collecting
cases). Rather, the failure to investigate an employee is part of a negligent hiring, training,
supervision, or retention claim, which Plaintiff already asserts in her eighth claim. Marcinkowski
v. City of Buffalo, No. 14-CV-809S, 2019 U.S. Dist. LEXIS 139817, at *32 (W.D.N.Y. Aug. 18,
2019) (“A cause of action for negligent hiring or retention requires allegations that the
employer . . . failed to investigate a prospective employee notwithstanding knowledge of facts that
would lead a reasonably prudent person to investigate that prospective employee.”). Similarly, the
failure to train and supervise aspect of Plaintiff’s seventh claim is indistinguishable from her eighth
claim. See, e.g., Bouche v. City of Mount Vernon, 2012 U.S. Dist. LEXIS 40246, at *31 (S.D.N.Y.
Mar. 22, 2012) (dismissing negligence claim against city as duplicative of negligent hiring,
retention, supervision and training claim). Accordingly, Plaintiff’s negligence claim against the
County fails.
Plaintiff also lodged her negligence claim against the Landlord. In its motion for summary
judgment, the Landlord argues that it cannot be held liable for Plaintiff’s injuries because it is an

9

out-of-possession landlord that did not retain responsibility for maintaining or securing the
premises. See Tambriz v. P.G.K. Luncheonette, Inc., 124 A.D.3d 626, 628 (2d Dep’t 2015) (“[A]n
out-of-possession landlord is not liable for injuries that occur on the leased premises due to the
criminal acts of third parties unless it has retained control over the premises or is contractually
obligated to provide security.”). Plaintiff does not dispute or even address this issue in her
response. The Court therefore considers Plaintiff to have abandoned this claim against the
Landlord. See Gaston v. City of N.Y., 851 F. Supp. 2d 780, 796 (S.D.N.Y. 2012) (deeming claims
abandoned when plaintiff “failed to respond or even mention these claims in his opposition brief
to defendants’ summary judgment motion”).
Accordingly, the Court GRANTS summary judgment to the County and the Landlord on
Plaintiff’s seventh claim.
III.

Eighth Claim: Negligent Hiring, Retention, Training, or Supervision
In her eighth claim, Plaintiff asserts that the County was negligent in retaining Washington

after disciplining him for the 2005 lifting incident and after learning of his 1988 conviction in
2013. She argues that these incidents should have raised a reg flag and prompted the County to
investigate Washington.
However, the County correctly argues that Plaintiff’s negligent hiring, retention, training,
or supervision claim is barred by New York workers’ compensation law. “It is well settled within
the Second Circuit that common law negligence claims are barred by the New York[] Workers’
Compensation Law.” Corrado v. N.Y. Unified Court Sys., 163 F. Supp. 3d 1, 26 (E.D.N.Y. 2016)
(citation and quotation marks omitted) (citing N.Y. Workers’ Comp. Law § 29(6) and collecting
cases barring negligent supervision and retention claims); see also Varela v. Flintlock Constr.,
Inc., 01 CIV. 2736 (DLC), 2002 U.S. Dist. LEXIS 3521, at *5 (S.D.N.Y. Mar. 5, 2002) (barring

10

negligence claim against employer for failing to supervise or prevent its employee’s harassing
conduct); Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 138 (2d Cir. 2001) (barring negligent
supervision and retention claims arising out of sexual assault by a co-worker).
Plaintiff argues that the County waived this defense by failing to plead it as an affirmative
defense in its answer, and that the Court should not decide this issue now but should instead defer
to the Workers’ Compensation Board to determine whether Plaintiff was an “employee” for
workers’ compensation purposes. The Court rejects both arguments.
First, courts have permitted defendants to raise the workers’ compensation defense for the
first time on summary judgment in the absence of bad faith or undue prejudice. See Carnley v.
Aid to Hosps., 975 F. Supp. 252, 254 (W.D.N.Y. 1997) (allowing workers’ compensation defense
to be raised for the first time on summary judgment where the opposing party was not prejudiced);
Zapata v. Riverside Study Ctr., Inc., No. 10 Civ. 6283 (CM), 2012 U.S. Dist. LEXIS 69246, at *23
(S.D.N.Y. May 16, 2012) (waiver of workers’ compensation defense only accomplished by a
defendant ignoring the issue to the point of final disposition); see also generally Anthony v. City
of N.Y., 339 F.3d 129, 138 n.5 (2d Cir. 2003) (holding that, although affirmative defenses must be
raised in a responsive pleading, district courts have the discretion to construe a motion for summary
judgment as a Federal Rule of Civil Procedure 15(a) motion for leave to amend the answer, and
Rule 15’s instruction that leave to amend be freely given supports amendment absent a showing
of bad faith or undue prejudice).
Here, Plaintiff does not assert bad faith or prejudice. To the contrary, Plaintiff briefed the
workers’ compensation issue in her opposition to the County’s motion for summary judgment. See
Ebert v. Holiday Inn, No. 11 CIV. 4102, 2014 U.S. Dist. LEXIS 12368, *27-28 (S.D.N.Y. Jan. 31,

11

2014), aff’d, 628 F. App’x 21 (2d Cir. 2015) (summary order). The Court thus finds that the
workers’ compensation defense is not waived.
Second, the Court need not defer to the Workers’ Compensation Board for a determination
of whether Plaintiff was an employee: Plaintiff does not dispute that she was a County employee,
and both New York courts and the New York Workers’ Compensation Board have held that WEP
participants are employees for workers’ compensation purposes. See Pizzatola v. Ulster Cty. Dep’t
of Soc. Servs., 156 A.D.2d 873, 874 (3d Dep’t 1989) (holding that WEP participants are
employees); Employer: City of N.Y. Dep’t of Parks & Rec., 2000 NY Wrk. Comp. LEXIS 121793,
at *2 (N.Y. Wrk. Comp. Bd. Dec. 19, 2000) (“It is well established that recipients of public
assistance who are required to participate in a workfare program are considered employees and,
therefore, if they are injured in the course of their county assignment, they are entitled to receive
Workers’ Compensation Benefits.”).
Thus, the Court can—and does—determine as a matter of law that Plaintiff was an
employee for workers’ compensation purposes. See Santigate v. Linsalata, 304 A.D.2d 639, 640
(2d Dep’t 2003) (holding that the question of whether a person is an employee for workers’
compensation purposes can be answered by a court if the applicable statutes are unambiguous and
the question is purely one of law). Accordingly, the Court finds that Plaintiff’s eighth claim is
barred and GRANTS summary judgment in the County’s favor.
IV.

Ninth Claim: Discrimination and Hostile Work Environment Under NYHRL
In her final claim, Plaintiff argues that the sexual comments, propositions, and innuendo

that Washington made to her on the days before the sexual assault, and the assault itself, created a
hostile work environment and constituted sex and gender discrimination. The County argues that
Plaintiff’s NYHRL claim is barred because she failed to identify it in her notice of claim.

12

“The purpose of the notice of claim requirement is to allow the municipal corporation
adequate opportunity to investigate the circumstance[s] surrounding the [incident] and explore the
merits of the claim while the information is likely to be available.” Keating v. Gaffney, 182 F.
Supp. 2d 278, 292 (E.D.N.Y. 2001) (quoting Wai Man Hui v. Town of Oyster Bay, 267 A.D.2d
233, 234 (2d Dep’t 1999)). While the notice does not require “magic language setting forth each
claim,” DC v. Valley Cent. Sch. Dist., No. 7:09-cv-9036 (WWE), 2011 U.S. Dist. LEXIS 90260,
at *6 (S.D.N.Y. June 29, 2011), it must “include[] enough information to enable the municipality
to investigate the claim adequately.” Keating, 182 F. Supp. 2d at 292 (E.D.N.Y. 2001). “A theory
of liability not mentioned in the notice of claim generally may not be asserted in a subsequent
lawsuit.” Id.
Here, Plaintiff’s notice of claim states: “This is a claim to recover monetary damages for
personal injuries, pain and suffering, and lost wages, caused by the negligent and/or reckless
actions of the County of Monroe . . . on or about August 3, 2016 when Ronicca Ellis was sexually
assaulted.” The notice does not directly or indirectly reference discrimination or hostile work
environment theories of liability. Indeed, it only mentions the assault and only identifies the date
of August 3, 2016; Washington’s harassing remarks occurred on July 25 and 26 and August 1. See
Ferlito v. Cnty. of Suffolk, No. 06-CV-5708, 2007 U.S. Dist. LEXIS 85523, at *10 (E.D.N.Y. Nov.
19, 2007) (concluding that claim for “negligent hiring, training or retaining practices” was not
sufficiently specified in plaintiff’s claim because “[t]he facts alleged in the notice of claim are
limited to the occurrences of July 24, 2005 and the facts with respect to negligent hiring, training
and retention would, of necessity, have occurred prior to that date”); T.P. v. Elmsford Union Free
Sch. Dist., No. 11 CV 5133 (VB), 2012 U.S. Dist. LEXIS 178454, at *22-23 (S.D.N.Y. Nov. 26,
2012) (dismissing NYHRL claim where the notice only mentioned defendant’s negligence,

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carelessness and recklessness with respect to a physical examination and made no mention of
retaliation or expulsion); Hartley v. Rubio, 785 F. Supp. 2d 165, 185 (S.D.N.Y. 2011) (dismissing
retaliation and discrimination claims where notice only included allegations relating to claims for
assault and battery). Accordingly, the Court finds that Plaintiff’s notice of claim is insufficient to
give the County notice of the NYHRL claim.
Plaintiff argues that, even if the notice of claim is insufficient, that requirement does not
apply to her NYHRL claim against the County and that the County waived this defense by failing
to plead it as an affirmative defense. Both arguments fail.
First, New York County Law § 52 requires a notice of claim to be filed for any action for
damages brought against a county, including NYHRL actions. See Rice v. Wayne Cty., No. 09CV-6391T, 2010 U.S. Dist. LEXIS 125939, at *10 (W.D.N.Y. Nov. 30, 2010); O’Connell v.
Onondaga Cty., No. 5:09-CV-364 (FJS/ATB), 2012 U.S. Dist. LEXIS 194831, at *40 (N.D.N.Y.
Feb. 9, 2012); Hamilton v. Cty. of Onondaga, No. 5:15-cv-01333 (BKS/TWD), 2018 U.S. Dist.
LEXIS 161647, at *50 (N.D.N.Y. Sep. 21, 2018).
Second, “[a] notice of claim is a condition precedent to a suit. The failure of the defendants
to plead the absence of a notice of claim as an affirmative defense is not a waiver of that defense.”
Roca v. Pozzi, No. 99 Civ. 10583 (GAY), 2001 U.S. Dist. LEXIS 27326, at *21 (S.D.N.Y. Sep.
27, 2001) (dismissing NYHRL claim on summary judgment); see also generally Richter v. Monroe
Cty. Dep’t of Soc. Servs., No. 01-CV-6409 CJS, 2005 U.S. Dist. LEXIS 5800, at *31 (W.D.N.Y.
Feb. 11, 2005) (dismissing NYHRL claim on summary judgment).
Accordingly, the Court GRANTS summary judgment in favor of the County as to
Plaintiff’s ninth claim.

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CONCLUSION
For the reasons stated, the County and the Landlord’s motion for summary judgment (ECF
No. 45) is GRANTED and they are DISMISSED from this case. The Clerk of Court is directed to
enter judgment in their favor as to the claims against them (claims six through nine) and terminate
them as parties. By separate order, the Court will set a status conference to set a trial date for the
remaining claims against Washington.
IT IS SO ORDERED.
Dated: September 16, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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