[*1]
Chapman v H & R Block
2008 NY Slip Op 52240(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)]
Decided on October 16, 2008
Supreme Court, New York County
Kapnick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 16, 2008
Supreme Court, New York County


Tasha Chapman, Plaintiff,

against

H & R Block and Monroe College, Defendants.




108258/05



Plaintiff Tasha Chapman represented herself.

Defendant H & R Block was represented by David H. Ganz, Esq., Adorno & Yoss, LLP, 350 Fifth Avenue, New York, New York, Tel. 212-809-5700.

Defendant Monroe College was represented by Michelle McKee Cubbon, Esq., Jackson Lewis, One North Broadway, White Plains, New York, Tel. 914-328-0404.

Barbara R. Kapnick, J.



In this action, plaintiff Tasha Chapman pro se claims that defendant Monroe College, which she attended in 2002, and defendant H & R Block, from whom she took a tax preparation course, harassed and refused to hire her based on her religion, in violation of New York State Executive Law ("Human Rights Law")§§ 290, 296.1 and 296.4 and New York City Administrative Code ("Admin. Code") § 8-502.[FN1]

Specifically, plaintiff contends that during the course of her studies, she took a Tax Preparation Course at H & R Block. According to Ms. Chapman, a job as a tax preparer was guaranteed by the end of the program, a contention that defendants sharply dispute. Ms. Chapman alleges she was not hired for the job, despite her being fully qualified, as a result of discrimination. Ms. Chapman further alleges that Monroe College and H & R Block conspired to impede her being hired by H & R Block in retaliation for complaints that Ms. Chapman had filed against Monroe College relating to an altercation with a professor, Professor Figueroa. [*2]

Plaintiff now moves for an order:

(1) granting her leave pursuant to Article 1101 of the CPLR to proceed as a poor person;

(2)granting her leave under Article 30 of the CPLR to amend/supplement her Complaint (a) to conform to the proof provided to date and to supplement the complaint with occurrences prior to and after facts stated in the original complaint'; (b) to allow for additional causes of action to be brought and recognized in this action as may be just for Plaintiff' and to comply with the applicable statute of limitations; and (c) to itemize those unlawful acts allegedly committed by defendants and show the Court the magnitude of the said acts;[FN2]

(3)dismissing defendants' affirmative defenses on the grounds that they lack merit because the preponderance of the evidence supports plaintiff's claims and/or that defendants have not complied with plaintiff's various discovery demands, including the names and contact information of key witnesses, or, in the alternative, directing a trial on disputed issues of fact;

(4)deeming certain allegations in plaintiff's Notice to Admit to be admitted by the defendants;

(5)directing defendants to produce all documents in their possession, whether previously produced by plaintiff or obtained in another way, which support plaintiff's causes of action;

(6)awarding damages to plaintiff; and

(7)granting plaintiff leave to respond to defendants' affirmative defenses.

That portion of the motion granting plaintiff leave pursuant to Article 1101 of the CPLR to proceed as a poor person is granted without opposition.

Leave to amend a pleading "shall be freely given upon such terms as may be just" (CPLR § 3025[b]). However, "leave may not be granted where the amended pleading plainly fails to state a cause of action and, thus, lacks merit (citations omitted)." Stroock & Stroock & Lavan v. Beltramini, 157 AD2d 590, 591 (1st Dept 1990). [*3]

Plaintiff alleges in her Proposed Amended Complaint that

16. Tax Instructor Lawrence Martin did discriminate against Plaintiff in Defendant's application process by referencing, as a weakness, characteristics consistent with Plaintiff's disability when evaluating Plaintiff for employment when he wrote "can be a very good tax preparer, just needs to slow down" to further discriminate against Plaintiff, after Plaintiff first opposed discrimination.


Defendants both argue that plaintiff's proposed Amended Complaint fails to state a cause of action under either the Human Rights Law or the Admin. Code, because plaintiff has failed to identify with any precision the nature of her alleged disability and/or that defendants were aware of said disability.[FN3] See, generally, Pimental v Citibank, N.A., 209 AD3d 141 (1st Dep't 2006), lv to app denied, 7 NY3d 707 (2006).

Defendants further argue that plaintiff's proposed additional cause of action which seeks to assert a claim for religious discrimination is duplicative of the claims asserted in the original Complaint.

Defendant Monroe College also opposes the motion to the extent that it seeks to assert claims for employment discrimination against it on the grounds that Monroe College was neither an "employer" (see, Human Rights Law § 296[1][a]) nor an "employment agency" as defined in Human Rights Law § 292(2)[FN4] and Admin. Code § 8-107.

In addition, defendant Monroe College argues that plaintiff's proposed claims are barred under the applicable three-year statute of limitations. See, Admin. Code § 8-502(d); Kent v Papert Cos., 309 AD2d 234 (1st Dep't 2003). [*4]

Plaintiff contends that the proposed additional claims which are based on incidents which allegedly occurred between July 2002 and November 2002 and in July 2004 are not time barred because this action was commenced in 2005. Plaintiff, however, has not addressed defendant's argument that her new claims were not brought within three years of the alleged incidents and that said claims do not "relate back" to the same facts and circumstances alleged in the original Complaint. Accordingly, that portion of plaintiff's motion seeking leave to amend/supplement her Complaint is denied.

Pursuant to CPLR § 3126,
[i]f any party,..., refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:


* * *

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Defendants, however, contend that they have responded to all of plaintiff's discovery demands.

Although plaintiff claims that several of defendants' responses to her discovery demands were not timely, it appears that the delay in discovery was caused at least in part by the withdrawal of plaintiff's counsel.[FN5]

Plaintiff also contends that defendant H & R Block failed to disclose the name of a key witness, Carolyn Tabachnick. However, H & R Block denies that Ms. Tabachnick is one of its [*5]key witnesses, and claims that plaintiff was in any event well aware of the existence of Ms. Tabachnick throughout this lawsuit.

It is well settled that "striking an answer is inappropriate absent a clear showing that the failure to comply is willful, contumacious or in bad faith (citations omitted), which must be affirmatively established by the moving party (citation omitted)". Palmenta v Columbia University, 266 AD2d 90, 91 (1st Dep't 1999). See also, Rosen v Corvalon, 309 AD2D 723 (1st Dep't 2003). Plaintiff has not met her burden of showing that any failure on the part of the defendants to meet their discovery obligations was willful and contumacious.

Accordingly, that portion of the motion seeking to strike defendants' affirmative defenses based on their failure to comply with discovery is denied.

That portion of the motion seeking an order directing defendants to produce documents in response to her discovery demands is also denied since it is not clear from the papers submitted what discovery, if any, remains outstanding.

That portion of the motion relating to the Notice to Admit is denied since it appears that plaintiff served the Notice to Admit upon defendants' counsel for the first time in connection with this motion.[FN6]

Those portions of plaintiff's motion seeking an order striking defendants' affirmative defenses on the merits and awarding damages, are denied, as the papers submitted do not establish plaintiff's entitlement to summary judgment.

That portion of plaintiff's motion seeking leave to respond to defendants' affirmative defenses is granted to the extent that all of plaintiff's arguments and submissions, including a legal memorandum which plaintiff submitted with leave of this Court after the initial appearance date, are deemed to be the response.

This constitutes the decision and order of this Court.

Dated: October, 2008______________________

Barbara R. KapnickJ.S.C.

Footnotes


Footnote 1:Plaintiff claims to have resigned from a work study position as a receptionist for an "implied" opportunity of employment in the field of accounting.

Footnote 2:Plaintiff has annexed an "Amended Supplemented Complaint" to her reply papers purporting to contain 64 distinct causes of action. This version of plaintiff's proposed pleading shall not be considered by the Court since it was not annexed to plaintiff's moving papers.

Footnote 3:Plaintiff has annexed as Exhibit "R" to her moving papers a Psychiatric Assessment dated May 9, 2003 which appears to have been issued in connection with an application for Social Security Disability Benefits. However, the incidents complained of in this case allegedly occurred during the prior year.

Footnote 4:"The term employment agency' includes any person undertaking to procure employees or opportunities to work." Human Rights Law § 292(2).

Footnote 5:Counsel for H & R Block has annexed an e-mail correspondence dated November 21, 2006 in which plaintiff's counsel, who had represented to defendants' counsel that she was preparing papers to be relieved as counsel, stated, "You don't need to serve us with your discovery responses at this time." Counsel was then granted permission to withdraw by Order of this Court dated January 26, 2007. Discovery was subsequently stayed in order to provide plaintiff with an opportunity to seek new counsel.

Footnote 6:Although plaintiff contends that defendants' counsel previously received a different Notice to Admit, plaintiff is not entitled to relief relating to that document since the motion appears to be based upon a new Notice to Admit which was not previously served upon defendants' counsel.