Defendants, the City of New York and the New York City Department of Corrections, move inter alia to dismiss plaintiff's complaint as asserted against them.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of allegedly being discriminated against and subjected to a hostile work environment and retaliation based upon her race (Hispanic) and age, in violation of the New York State Human Rights Law ("SHRL") and the New York City Human Rights Law ("CHRL").

Prior to commencing this action, plaintiff commenced an action in Federal Court on February 15, 2012, which inter alia alleges violations of those same statutes. The Complaint herein, filed on October 31, 2013, is virtually identical to the Complaint filed in the federal action, except the subject complaint adds additional allegations regarding events that occurred both before and after the federal action was commenced.

Specifically, the subject complaint adds new allegations regarding defendants' failure to assign plaintiff to the position of Fire Safety Post after she applied for the position on October 15, 2010. While plaintiff's federal complaint only contains allegations that the subject position was filled by a younger, less qualified, African American female, the subject complaint adds additional allegations relating to plaintiff actually being offered the Fire Safety Post and rescinding her application.

The subject complaint also alleges that, following a work injury on October 28, 2011, plaintiff was examined by a doctor for the New York Department of Corrections on December 16, 2011 who was forceful, rude, abusive and unprofessional.

Despite the fact that all of these new allegations occurred prior to the commencement of the federal action, plaintiff's attorney affirmation specifically states that the instant action was commenced only for "those claims arising after the federal suit was filed." As such, plaintiff should not be allowed to rely on these allegations to support her causes of action under the SHRL or [*2]the CHRL.

These allegations are insufficient to withstand a motion to dismiss in any event.

The criterion in considering a motion to dismiss under CPLR 3211(a)(7) "is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Allen v. City of New York, 49 AD3d 1126, 1127 [3d Dept. 2008] (citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]); see also Griffin v. Anslow, 17 AD3d 889, 891 [3d Dept. 2005]). The Court must give the complaint a liberal construction, give plaintiff the benefit of every possible favorable inference, and determine only whether the facts, as alleged and presumed to be true, fit within any cognizable legal theory (See Nonnon v. City of New York, 9 NY3d 825, 827 [2007] (quoting Leon v. Martinez, 84 NY2d 83, 87-88 [1994]); see also Torres v. Louzoun Enters., Inc., 105 AD3d 945 [2d Dept. 2013]).

Plaintiff's new allegations regarding the Fire Safety Post appear to claim that the position ultimately offered to plaintiff was for a temporary, probationary period of six months whereas the position offered to the younger, African American employee was permanent. However, the facts alleged, specifically that plaintiff was delayed being informed that she was approved for the position for approximately three months to allow the younger, African American employee to continue in the position, clearly demonstrate that the position offered to both plaintiff and the younger, African American employee was temporary. Indeed, the facts allege demonstrate that the younger, African American employee would have had the position for the exact same period of six months had plaintiff not rescinded her offer.

As these allegations fail to show that plaintiff was treated differently based upon her race or age they cannot sustain a cause of action for discrimination or hostile work environment under either the SHRL or CHRL (See Whitfield-Oritz v. Dep't of Educ. of the City of New York, 116 AD3d 580, 581 [1st Dept. 2014]; Askin v. Dep't of Educ. of the City of New York, 110 AD3d 621, 622 [1st Dept. 2013]; Oritz v. City of New York, 105 AD3d 674 [1st Dept. 2013]; Green v. Continuum Health Partners, Inc., 88 AD3d 487 [1st Dept. 2011]).

Plaintiff's new allegations regarding the medical exam are likewise insufficient as plaintiff utterly fails to allege that [*3]other, younger and non-Hispanic employees who were injured were not forced to undergo such medical exams and/or were not subject to rude and/or unprofessional treatment during any such exam (See Whitfield-Oritz, supra, at 581; Green, supra, at 487). The allegations likewise fail to allege that the doctor's unprofessional behavior was in any way related to plaintiff's age or race (See Whitfield-Oritz, supra, at 581).

Moreover, as plaintiff's complaint utterly fails to allege that these incidents were causally connected to any protected activity, these new allegations fail to support a cause of action for retaliation under either the SHRL or CHRL (See Whitfield-Oritz, supra, at 581; Williams v. New York City Hous. Auth., 61 AD3d 62, 71 [1st Dept. 2009]).

Plaintiff's complaint herein also contains allegations relating to events that occurred after the federal lawsuit was commenced. Specifically, plaintiff claims that on March 12, 2012 she was informed that her injuries sustained on October 28, 2011 would require surgery. Plaintiff claims that she filed for disability on April 20, 2012 but her hearing was delayed for nearly nine months until January 17, 2013, despite the fact that white corrections officers did not have such delays.The complaint further alleges that plaintiff was terminated from employment on March 29, 2013 as a result of excessive absences, despite the fact that non-Hispanic employees, whose line of duty injuries caused that to miss an even greater amount of work, were not subject to termination. Plaintiff further claims that on June 3, 2013, defendants initiated disciplinary action against her. Finally, plaintiff alleges that she filed for unemployment benefits on April 1, 2013 but her unemployment payments were discontinued after two weeks because defendants notified the unemployment agency that plaintiff was still employed and out on sick leave.

Contrary to defendants' contentions, these allegations plainly state that plaintiff was treated less well than other employees because of her race, and, as such, they are sufficient to support plaintiff's causes of action for race discrimination and hostile work environment pursuant to the CHRL (See Nelson v. HSBC Bank USA, 87 AD3d 995, 999 [2d Dept. 2011]; see also Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 [2d Cir. 2013]).

These allegations are also sufficient to sustain a cause of action for race discrimination pursuant to the SHRL as they plainly [*4]allege that plaintiff was a qualified member of a protected class and suffered an adverse employment action, including inter alia being terminated after having her work injury hearing delayed for approximately 9 months, based upon her race (See McGuinness v. Concentric Health Care LLC, 116 AD3d 527, 527-28 [1st Dept. 2014]). However, as plaintiff fails to point to any allegedly harassing behavior distinct from the alleged discrimination against her with regard to her workplace injury, they are insufficient to sustain a cause of action for hostile work environment pursuant to the SHRL (See Witchard v. Montefiore Med. Ctr., 103 AD3d 596 [1st Dept. 2013]; see also Chin v. New York City Hous. Auth., 106 AD3d 443, 444-45 [1st Dept. 2013]; Gaffney v. City of New York, 101 AD3d 410, 410-11 [1st Dept. 2012]; Mejia v. Roosevelt Is. Med. Assoc., 95 AD3d 570, 573 [1st Dept. 2012]; see generally Williams, supra, at 63-81).

These allegations are likewise sufficient to sustain a cause of action for retaliation pursuant to both the CHRL and the SHRL as plaintiff clearly alleged that she was engaged in protected activity that her employee was aware of (the federal lawsuit), and that she suffered adverse employment actions beginning less than a month after the lawsuit was filed (See Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, No. 15013/12, 2014 NY App. Div. LEXIS 3907, at * [1st Dept. June 3, 2014]; Calhoun v. County of Herkimer, 114 AD3d 1304, 1306-07 [4th Dept. 2014]).

As these allegations contain no reference to plaintiff being treated less well as a result of her age, plaintiff's causes of action alleging age discrimination in violation of the SHRL and CHRL must be dismissed (See Whitfield-Oritz, supra at 581; Askin, supra, at 622; Oritz, supra, at 674; Green, supra, at 487).

Finally, although defendants' Notice of Motion and Affirmation in Opposition clearly indicate that the motion is being made on behalf of the City of New York and the New York City Department of Corrections, only, defendants' memorandum of law requests dismissal of the complaint against the individual defendants as well.

Nevertheless, as plaintiff has specifically addressed that the portion of defendants' application seeking dismissal of the complaint against the individually named defendants, plaintiff clearly had sufficient notice of the application, and the court may properly consider it.

As the only allegations pertaining to the actions of the individually named defendants are virtually identical to the allegations regarding those defendants made in plaintiff's federal [*5]complaint, and as plaintiff readily admits that this lawsuit is not intended to cover those causes of action already pending in federal court, plaintiff's complaint is dismissed against the individual defendants.

Accordingly, defendants' motion is granted to the extent that plaintiff's complaint is dismissed, in its entirety, as asserted against defendants Deputy Warden Toulon, Deputy Warden El-Quihir, Captain Singletary and Captain Marshall-Leigh, only.

Further, plaintiff's second, fourth and sixth causes of action alleging age discrimination and hostile work environment in violation of the SHRL and age discrimination in violation of the CHRL, respectively, are dismissed as asserted against defendants the City of New York and the New York City Department of Corrections.

Defendants' motion is denied in all other respects.