In this action for employment discrimination based on individual and associational disability under the New York City Human Rights Law (the NYCHRL) (N.Y.C. Admin. Code § 8-101) defendants move seeking an order granting them summary judgment and dismissal of this action. Saliently, defendants claim this action is barred by the doctrine of collateral estoppel insofar as this action was initially brought in federal court wherein defendants were granted summary judgment after that court determined that plaintiff was terminated for legitimate non-discriminatory reasons. Defendants also contend that to the extent that plaintiff claims they violated the NYCHRL because they failed to make reasonable accommodations despite knowledge that he and his wife were disabled, the facts upon which that claim is premised evince that this claim accrued more than three years prior to the initiation of this action and is, therefore, barred by the applicable statute of limitations. On the merits, defendants claim that summary judgment with respect to plaintiff's claim that he was terminated based on his and his wife's disability is warranted insofar as the evidence [*2]establishes that plaintiff was not qualified for his position as a matter of law because he was both excessively late and chronically absent. With respect to plaintiff's claim that defendants violated the NYCHRL because they failed to make reasonable accommodations for his individual and associational disability, defendants claim that summary judgment is warranted since as a matter of law, under these circumstances - where plaintiff was chronically late and absent - defendants were not required to make any accommodations at all. Plaintiff opposes the instant motion asserting that insofar as the federal court granted summary judgment only with respect to plaintiff's Federal Family and Medical Leave Act of 1993 (the FMLA) claims - declining to exercise jurisdiction over his NYCHRL claims - the issues decided by that court were not identical to the issues before this Court. On the merits, plaintiff opposes defendants motion asserting that questions of fact exist, which, therefore, preclude summary judgment. Specifically, plaintiff claims that the evidence establishes discrimination based on disability and associational disability under the NYCHRL and whether defendants reasons for terminating plaintiff are legitimate and non-discriminatory or merely pretextual are questions of fact warranting a trial.

For the reasons that follow hereinafter, defendants' motion is hereby granted.

This is an action for alleged employment discrimination based on individual and associational disability in violation of the NYCHRL. Within his complaint, which was filed on January 3, 2013, plaintiff alleges the following. On November 26, 1986, plaintiff was hired by defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (HHC) a public benefit corporation which operates hospitals and defendant JACOBI MEDICAL CENTER (Jacobi), one of the hospitals operated by HHC. Plaintiff was hired as a Clerical Associate Level II and worked in the Admitting Department, where he was primarily responsible for interviewing patients. Beginning in 1988, due to injuries to plaintiff's wife and the sequela resulting therefrom as well as plaintiff's own health conditions, plaintiff intermittently took time off from work. Specifically, in 1987 plaintiff took two weeks off from work. In 1995 plaintiff again took time off. In 1997, plaintiff took a 12-week FMLA leave to care for his wife. In July 1997 plaintiff again missed work to care for his wife. In 2002, plaintiff was again required to take another 12-week FMLA leave in order to care for his wife.

In 2007, plaintiff's work hours, which were then 4pm to 12 am, were changed to 3:30pm to 11:30pm. This change made it difficult for plaintiff to pick up his daughter from school and resulted in plaintiff's repeatedly belated arrival to work. Plaintiff conveyed [*3]the difficulty imposed by the change in his schedule to defendants to no avail. In 2009, plaintiff again took time off to care for his wife. Subsequently, on March 30, 2009, plaintiff was charged with two counts of misconduct for excessive lateness and absenteeism. Plaintiff again missed days from work in the fall of 2009 to care for his wife and as a result, in November 2009, was again charged with excessive lateness and absenteeism. In April 2010, after a disciplinary conference held in January 2010, plaintiff was terminated. Upon protest by his union, plaintiff was hired after executing an agreement wherein he pled no contest to the disciplinary charges lodged against him, accepted a 30-day suspension, agreed to a year's probation and agreed to adhere to defendants' lateness and absenteeism policy. Thereafter, plaintiff again took time off to care for his wife. As a result, on April 12, 2011, he was again charged with excessive lateness and absenteeism in violation of the agreement of November 2009. On May 2011, plaintiff became ill and took another 12-week FMLA leave. On July 7, 2011, plaintiff was terminated. Based on the foregoing, plaintiff asserts three causes of action. The first alleges a violation of the NYCHRL inasmuch as his health conditions constituted a disability under the NYCHRL, that defendants were, therefore, required to make a reasonable accommodation enabling him to perform his job, but failed to do so (the accommodation claim). Plaintiff's second cause of action alleges a violation of the NYCHRL insofar as he was terminated by defendants because of his disability (the individual disability claim). His third cause of action premises a violation of the NYCHRL on grounds that plaintiff was terminated because of his association with his disabled wife (the associational disability claim).

Defendants' motion seeking summary judgment on grounds that plaintiff is collaterally estopped from asserting the instant claims is granted with respect to his individual and associational disability claims inasmuch as the federal court's grant of summary judgment in defendant's favor resolved the issue of discrimination, which issue is dispositive and identical to the issue before this court, and which issue plaintiff fully litigated before that court.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York [*4]City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

It is well settled that absent fraud, a judgement obtained with the proper jurisdiction, once rendered, is conclusive, and generally bars the re-litigation of the issues underlying it (Ryan v New York Telephone Company, 62 NY2d 494, 500 [1984]. As the court in Ryan aptly stated

The foregoing principal is supported by sound public policy and is designed to avoid the re-litigation of issues so as to avoid inconsistent results (Buechel v Bain, 97 NY2d 295, 303 [2001]).

The doctrine of collateral estoppel, a narrower species of the doctrine of res judicata, prevents a party from re-litigating an issue when it was previously litigated and decided against that party or his/her privies (id.; Ryan at 500; David v Biondo, 92 NY2d 318, 322 [1998]; Gramartan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]; Kim v Goldberg, Werpin, Finkel, Goldstein, LLP, 120 AD3d 18, *342 [1st Dept 2014]; Simmnons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 116 AD3d 134, *92 [1st Dept 2014]; Lumbermens Mutual Casualty Company v 606 Restaurant, Inc., 31 AD3d 334, 334 [1st Dept 2006]; Zimmerman v Tower Insurance Company of New York, 13 AD3d 137, 139 [1st Dept 2004]; Mulverhill v State of New York, 257 AD2d 735, 737-738 [3d Dept 1999]; Tamily v General Contracting Corporation, 210 AD2d 564, 567 [3d Dept 1994]). The proponent of preclusion under the doctrine of collateral estoppel must demonstrate that the issue being raised in the present action is identical to an issue previously litigated and decided in a prior action, that the issue is decisive in the present action, was also decisive or resolved in the prior action, and the party against whom the doctrine is being asserted or his privies had full and fair opportunity to contest and litigate the issue in the prior [*5]action (Ryan at 501; David at 322; Gramartan Home Investors Corp at 485; Lumbermens Mutual Casualty Company at 334; Zimmerman at 139; Mulverhill at 738; Tamily at 567). The opponent of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action (David at 322; Lumbermens Mutual Casualty Company at 334; Mulverhill at 738; Tamily at 567).

Because the relevant inquiry for purposes of collateral estoppel is identity of issues and not identity of causes of action, that the current and prior actions involve different causes of action or involve different tribunals, is not in anyway relevant, nor dispositive (Ryan at 502 [court held that prior administrative determination collaterally estopped plaintiff from litigating claims in plenary action]; Simmons-Grant at *93 [court held that federal court's grant of summary judgment in favor of defendant as to Title VII discrimination claims collaterally estopped plaintiff from litigating claims in state court under the NYCHRL).

Pursuant to N.Y.C. Admin. Code § 8-107(7), it is unlawful, and constitutes a discriminatory practice

In assessing claims under the NYCHRL, the courts of this state employ the framework established by McDonnell Douglass Corp. v Green, 411 US 792 [1973]), which requires a plaintiff to establish a prima facie case of discrimination by tendering evidence demonstrating that (1) he/she is a member of a protected class; (2) he/she was qualified to hold the employment position at issue; (3) he/she was terminated from employment or suffered an adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Melman v Montefiore Medical Center, 98 AD3d 107, 113-114 [1st Dept 2012]).

Once plaintiff establishes a prima facie case of discrimination the burden shifts to the defendant, who to prevail, must rebut the presumption of discrimination by clearly setting forth legitimate, independent and non discriminatory reasons to support its employment decision (Forrest at 305; Ferrante at 629; Melman at 113-114). If defendant meets its burden, plaintiff can nevertheless avoid summary judgment in defendant's favor if he/she establishes that the reasons proffered by defendant for its employment action are pretext for discrimination, meaning that they are "false and that racially motivated discrimination was the real reason" (Forrest at 308; Ferrante at 629-630; Melman at 113-114).

A defendant seeking summary judgment must establish "either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Michno v New York Hosp. Medical Center of Queens, 71 AD3d 746, 746-747 [2d Dept 2010]; see also Mehra v Nayak, 103 AD3d 857, 860-861 [2d Dept 2013] ["As to the cause of action asserted against the Woodhull defendants to recover damages for employment discrimination, they demonstrated that not every element necessary to a viable claim of intentional discrimination had occurred, that the decedent suffered no adverse employment consequences as a result of the alleged acts of discrimination, and that, in any event, nondiscriminatory reasons existed for the challenged actions"]).

Here, the evidence tendered by defendants in support of their motion establishes that plaintiff initially, brought the instant action in the United States District Court for the Southern District of New York (SDNY), where in addition to the claims made herein, he also claimed, on substantially identical facts, that defendants discriminated against him in violation of the FMLA. [*6]Specifically, plaintiff claimed that defendants retaliated and, ultimately terminated him because he availed himself of his FMLA benefits. On November 23, 2012, the SDNY granted defendants' motion for summary judgment, thereby dismissing that action (Williams v New York City Health and Hospitals Corporation and Jacobi Medical Center, 2012 WL 5506128 [SDNY 2012]). Specifically, the court, held that

Certainly, at first blush it is not immediately apparent that, here, there exists identity of a dispositive issue. However, a critical analysis makes it abundantly clear that this case and the prior case in the SDNY share an identical and dispositive issue. It is true that the salient issue in plaintiff's FMLA retaliation claim is whether he was terminated for exercising his right to avail himself of his FMLA benefits. It is equally true that the salient issue to his current individual and associational disability claims under the NYCHRL is whether he was terminated for [*7]missing work due to his and his wife's disability. However, while these two issues may not seem congruent, the issue which was decided by the SDNY, which was dispositive to plaintiff's FMLA retaliation claim and is dispositve to his instant individual and associational disability claims is - namely, whether plaintiff was terminated for legitimate, non-discriminatory reasons as opposed to circumstances giving rise to retaliatory and discriminatory intent for failing to report to work (Forrest at 305; Ferrante at 629; Melman at 113-114).

That issue having been adversely decided against plaintiff in the action before the SDNY precludes and collaterally estopps him from maintaining his claims of retaliation based on his individual and associational disability. On this issue, Simmons-Grant - a case cited by none of the parties - is particularly instructive. In Simmons-Grant, plaintiff sued pursuant to Title VII, the New York State Human Rights Law (NYSHRL) and the NYCHRL, alleging raced-based discrimination and constructive discahrge (Simmons-Grant, 116 AD3d at *90-91). Plaintiff initially sued in the SDNY, but after the SDNY granted defendant's motion for summary judgment dismissing the Title VII claims, brought a state action pursuing only her NYCHRL and NYSHRL claims (id.). Defendant moved to dismiss plaintiff's state action on grounds that insofar as her action was dismissed in federal court, the doctrine of collateral estoppel precluded her state action (id.). In reversing the trial court's denial of defendant's motion to dismiss, the Appellate Division held that insofar as the SDNY decided the claim of retaliation based on race in favor of defendants, thereby granting defendants summary judgment on plaintiff's Title VII claim, plaintiff was collaterally estopped from litigating that issue, which comprised the "entirety of plaintiff's City HRL retaliation claim" (id. *92-93). To be sure, the court in Simmons-Grant was indeed concerned about the applicability of the doctrine of collateral estoppel to the foregoing circumstances, noting that

Here, as in Simmons-Grant, whether plaintiff was discharged for legitimate non-discriminatory reasons, is - in this Court's view - "a strictly factual question not involving application of law to facts or the expression of an ultimate legal conclusion, does not implicate any of the several ways in which City HRL claims—including retaliation claims—raise issues not identical to their federal and state counterparts" (id. at *93-94). Notably and significantly, this isn't a case where the SDNY's decision turned on conduct which might not be discriminatory under federal FMLA jurisprudence, but might very well be under the broad breath and scope of the NYCHRL. Instead, on the very same facts at issue here, the SDNY determined that plaintiff's conduct was such that defendants were forced to legitimately fire him, which is a dispositive issue in this action. Accordingly, the SDNY's determination on this issue is conclusive in this action and plaintiff is collaterally estopped from prosecuting his claims of retaliatory discrimination based on individual and associational disability (cf. Kim ["[W]e conclude that defendants have not met their burden of showing that plaintiff's state and city claims of retaliatory termination are barred by collateral estoppel. The retaliation claims asserted here are entirely distinct from those raised and decided in the federal action. There, the court only decided whether plaintiff was retaliated against for exercising her FMLA rights. Here, however, plaintiff does not claim retaliation based on her exercise of FMLA rights, but instead alleges retaliation, under the State and City Human Rights Laws, based on entirely different instances of protected activity."]).

While the parties do not cite Kim, any attempt by plaintiff to argue that it controls the outcome here is meritless. In Kim, the Appellate Division held that the SDNY's grant of summary judgment on plaintiffs' claim that she was retaliated against for taking FMLA leave could not collaterally estopp plaintiff from prosecuting her NYCHRL claims in state court because "the only protected activity addressed by the court was plaintiff's taking her maternity leave" (Kim at *342). The Appellate Division then noted [*9]that "the court did not mention, let alone engage in any analysis of, the distinct instances of protected activity that form the basis of plaintiff's state and city claims" (id.). Here, however, unlike Kim, where the basis for the NYCHRL claims - namely gender-based and pregnancy discrimination - were separate and apart from those upon which the FMLA claims were predicated - namely retaliation for taking FMLA leave - plaintiff's NYCHRL claims are premised on retaliation for missing work due to a individual and associational disability, which claims are substantially identical to those alleged in the prior action in the SDNY - namely, retaliation for legitimate work absences under the FMLA. Essentially, the claim that undergird this and the prior action is that plaintiff was wrongfully terminated for work absences which were excusable under the law. Thus, the SDNY did in fact grant summary judgment by addressing the same facts and events at issue here.

Nothing proffered by plaintiff raises an issue of fact on the issue of whether plaintiff is collaterally estopped from prosecuting the foregoing claims so as to preclude summary judgment.

Defendants' motion for summary judgment on plaintiff's remaining accommodation claim is granted insofar as the evidence establishes that this claim is barred by the applicable statute of limitations.

It is well settled that to the extent that the liability imposed by a violation of the NYCHRL is statutory, the statute of limitations for commencing a plenary action for a claim thereunder is three years from the date of the violations alleged (CPLR § 214[2]; Acosta v Loews Corp., 276 AD2d 214, 217 [1st Dept 2000]; Alimo v Off-Track Betting Corp., 258 AD2d 306, 306-307 [1st Dept 1999]; Teller v America West Airlines, Inc., 240 AD2d 727, 727 [2d Dept 1997]).

Here, plaintiff's deposition testimony establishes that his accommodation claim is premised on defendants' failure to change his work hours from 3:30pm-11:30pm to 4pm-12am so as to allow him to arrive at work on time. Specifically plaintiff testified that with the exception of two weeks when he initially started working for defendants, he had always been on tour 3, which required employees to work from 3:30pm-11:30pm. However, until 2007/2008, he had been allowed to work a modified schedule, meaning from 4pm-12am, in order allow him to deal with issues at home. In 2007/2008, however, plaintiff's schedule was altered and he was, thereafter, required to work from 3:30pm-11:30pm, the normal hours imposed by tour 3. Plaintiff testified that this change [*10]contributed to his excessive lateness because

Based on the foregoing, plaintiff's accommodation claim accrued in 2007 or 2008 and he had three years from that date to initiate an action pursuant to the NYCHRL. However, plaintiff did not commence this action until he filed his complaint on January 3, 2013 five to six years after his accommodation claim accrued. Thus, defendants' establish prima facie entitlement to summary judgment on that claim as well and nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. In fact, plaintiff does not even oppose this portion of defendants' motion.

Having granted summary judgment for the foregoing reasons, the Court need not address defendants' on the merits basis for summary judgment. It is hereby

ORDERED that plaintiff's complaint be dismissed with prejudice. It is further

ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon all plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Bronx, New York

_________________________

Mitchell J. Danziger, ASCJ