Supreme Court, Kings County, July 18, 2019

Aron Law PLLC, New York City, for plaintiff.

Epstein, Becker & Green P.C., New York City, for New York and Presbyterian Hospital, defendant.

Zachary W. Carter, Corporation Counsel, New York City, for City of New York, defendant.

Plaintiff Hadas Goldfarb, an Orthodox Jew, was offered a job as a paramedic at the New York and Presbyterian Hospital (Hospital or defendant) in 2015. The Hospital voluntarily contributes its ambulances to the City of New York 911 system, and staffs them with its own personnel.^[FN1] These ambulances respond to 911 calls and are dispatched [*2]at the direction of the New York City Fire Department (FDNY). Goldfarb was terminated during orientation after refusing to comply with the dress code, which required that paramedics wear pants.

Plaintiff then commenced an action against the Hospital and City of New York, alleging religious discrimination under title VII of the Civil Rights Act of 1964, as amended (42 USC, ch 21, § 2000e et seq.), and both the State and City Human Rights Laws as contained in Executive Law § 296 and section 8-107 of the Administrative Code of the City of New York, respectively. She claims that her "termination was unlawful retaliation for{**65 Misc 3d at 330} her refusing to compromise her religious principles," and seeks reinstatement to her position at the Hospital.

Prior to discovery, plaintiff moved to dismiss defendant's first and sixth affirmative defenses. The first defense is that the Hospital, as a provider of ambulance and EMT services through the FDNY system, is required to comply with the regulations of the FDNY, which forbid paramedics from wearing skirts while on duty, and that the Hospital acted in accordance with these regulations. In particular, defendant points to Emergency Medical Services Council Operating Guide Procedures (EMSC OGP) § 200-07, which provides: "T-shirts, hospital 'scrub' clothing, shorts or skirts shall not be worn." The sixth defense is that the Hospital was legally prevented from accommodating plaintiff's request to wear a skirt because of these requirements, and that such an accommodation would pose an undue hardship upon the Hospital. This court denied the motion as premature because discovery had not yet been conducted.

Plaintiff moved to reargue and renew, based upon the contract between the City, through the FDNY, and the Hospital produced in discovery. Plaintiff claims that the "no-skirt rule and the OGP which encompasses it (200-07) are conspicuously absent from the contract between the FDNY and the Hospital while others are included," and that "there is simply no FDNY rule prohibiting the wearing of skirts applicable to the Hospital" in the contract. Plaintiff further argues that the no-skirt rule does not prohibit the wearing of skirts over pants.

[1] The motion to reargue is denied. Pursuant to CPLR 2221 (d) (2), a motion for leave to reargue must be based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Plaintiff's motion to reargue is based on matters of fact which were revealed in discovery, and were not offered on the prior motion. Furthermore, plaintiff does not even claim that this court overlooked or misapprehended any matters of fact offered in the prior motion. Accordingly, the motion to reargue is denied.

Pursuant to CPLR 2221 (e) (2), a motion to renew must be based upon "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." Thus, this court must determine whether the terms of the contract affect its previous order denying the motion to dismiss the Hospital's affirmative defenses.{**65 Misc 3d at 331}

Pursuant to CPLR 3211 (b), to prevail on a motion to dismiss an affirmative defense, plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a [*3]matter of law." (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]; see also Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010]; Butler v Catinella, 58 AD3d 145, 147-148 [2d Dept 2008].) This court must also "liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference." (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; Kingman v ZMoore Ltd., 2018 NY Slip Op 32029[U], *7-8 [Sup Ct, NY County 2018].)

[2] This court finds that there are no new facts included in the contract which would change its prior denial of the motion to dismiss the Hospital's affirmative defenses. Contrary to plaintiff's claim, the newly discovered contract incorporates by reference the no-skirt rule, thus negating any argument that the Hospital's affirmative defenses have no merit.

Public Health Law §§ 3000 and 3003 empower the NYC Regional Emergency Medical Services Council (EMSC), whose duty is to coordinate the emergency medical services of NYC, to establish rules and regulations establishing safety protocols for ambulance services, including equipment standards. EMSC's general operating procedures dictate that hospital ambulance personnel wear "an appropriate uniform, which shall at all times be neat, clean, and professional in appearance," and that "T-shirts, hospital 'scrub' clothing, shorts or skirts shall not be worn." (EMSC OGP § 200-07.)

This guideline is incorporated by reference in the provisions of the contract when read together. Section 6 (a) of the contract provides: "The emergency ambulance service provided pursuant to this Agreement shall be subject to, and operated in full compliance with, the FDNY 911 System Provider Guide and all orders, policies, procedures, protocols . . . applicable to the provision of such emergency ambulance service, including . . . regional protocols" (emphasis added). Section 1 (r) of the contract defines "regional protocols" as the "policies and protocols for patient care promulgated by the New York City REMAC^[FN2] and REMSCO" (emphasis added). Section 1 (t) of the {**65 Misc 3d at 332}contract defines REMSCO as the EMSC,^[FN3] as defined in the Public Health Law. Section 9 (h) of the contract further provides: "The Hospital shall be responsible for ensuring that all Hospital Ambulance personnel comply with the terms of this Agreement and all Federal, State and City laws, rules, regulations, procedures and protocols governing the provision of emergency ambulance service pursuant to this Agreement" (emphasis added). EMSC's general operating procedures dictate that hospital ambulance personnel not wear skirts. Thus, pursuant to the contract, the Hospital's ambulance personnel, including plaintiff, were required to comply with the "regional protocols" including EMSC OGP § 200-07, which forbids voluntary hospital ambulance personnel from wearing skirts.

In summary, plaintiff has failed to present new facts that would change this court's prior determination denying her motion to dismiss defendant's first and sixth affirmative defenses. The newly discovered evidence, i.e., the contract, does not prove that the Hospital's affirmative defenses are without merit, and in fact may prove the opposite. Accordingly, plaintiff's CPLR 2221 (e) motion to renew her CPLR 3211 (b) motion to dismiss defendant's first and sixth affirmative defenses is denied.