Supreme Court, New York County, June 16, 2023

Zabell & Collotta, P.C., Bohemia (Saul Zabell of counsel), for defendants.

Mohammed Gangat, New York City, for plaintiff.

I. Background

Plaintiff sues to recover damages for discrimination based on his disability and for retaliation under the New York State and New York City Human Rights Laws. (Executive Law § 296; Administrative Code of City of NY § 8-107.) After defendants moved to dismiss the complaint based on plaintiff's failure to plead a claim against them (CPLR 3211 [a] [7]), plaintiff filed an amended complaint with additional allegations against defendants. (CPLR 3025 [a].) The amended complaint also{**81 Misc 3d at 878} includes two new claims against defendants for their failure to pay overtime compensation and provide accurate wage notices and statements.

Defendants now seek to dismiss the amended complaint's claims for disability discrimination and retaliation. (CPLR 3211 [a] [7].) At oral argument, plaintiff discontinued his retaliation claim under the New York State Human Rights Law. (Executive Law § 296 [7].) For the reasons explained below, the court denies defendants' motion to dismiss the remaining discrimination and retaliation claims.

II. Standards Applicable to Defendants' Motion

Upon defendants' motion to dismiss plaintiff's complaint under CPLR 3211 (a) (7), the court must accept plaintiff's allegations as true, liberally construe them, and draw all reasonable inferences in his favor. (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 239 [2021]; [*2]Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 175 [2021]; Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017]; Lawlor v Wymbs, Inc., 212 AD3d 442, 443 [1st Dept 2023].) "[D]efendants bear the burden of establishing that the complaint fails to state a viable cause of action." (Connolly v Long Is. Power Auth., 30 NY3d 719, 728 [2018].) Dismissal is warranted only if the amended complaint fails to allege facts that fit within any cognizable legal theory. (Sassi v Mobile Life Support Servs., Inc., 37 NY3d at 239; Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d at 175; Han v New York City Tr. Auth., 203 AD3d 511, 512 [1st Dept 2022].)

III. The Amended Complaint

According to the amended complaint, defendant Weeks, the regional manager of defendant Village Plumbing & Heating NY Inc., hired plaintiff as a pipe mechanic and plumber's helper around October 2021. On the morning of December 1, 2021, plaintiff sent a text message to Weeks that plaintiff had suffered an injury and could not work that day. Plaintiff received treatment for his injury later that morning and a doctor's note that restricted plaintiff from returning to work for one week.

Because plaintiff received no response to his text message to Weeks, plaintiff returned to work the next day, but submitted his doctor's note to Weeks and defendant Glennon, another manager of Village Plumbing. The following morning, December 3, 2021, Weeks instructed plaintiff to rest and comply with the{**81 Misc 3d at 879} doctor's orders. Plaintiff did not return to work after their conversation. On December 7, 2021, plaintiff attempted to contact Weeks and Glennon to determine plaintiff's future work schedule. Weeks responded with a text message, "I can't have you in tomorrow. We'll talk tomorrow." (Aff of Mohammed Gangat, Esq., exhibit A ¶ 36.)

On December 8, 2021, Weeks explained to plaintiff that, because Village Plumbing was overstaffed, Weeks was terminating plaintiff as the most recently hired employee. Plaintiff alleges that he was not the most recently hired employee and that, immediately after his termination, Village Plumbing posted an online job notice for his former position.

IV. Plaintiff's Claims of Discrimination and Failure to Provide a Reasonable Accommodation

Plaintiff claims that defendants discriminated against him through their failure to provide a reasonable accommodation for his disability pursuant to the New York State Human Rights Law (NYSHRL) (Executive Law § 296 [1] [a]) and the New York City Human Rights Law (NYCHRL). (Administrative Code § 8-107 [1] [a].) The NYSHRL defines disability as:

"(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." (Executive Law § 292 [21].)

NYCHRL defines a disability as "any physical, medical, mental or [*3]psychological impairment." (Administrative Code § 8-102.) Both statutes prohibit an employer from discharging an employee because of a disability. (Executive Law § 296 [1] [a]; Administrative Code § 8-107 [1] [a] [2].)

Defendants insist that plaintiff fails to allege a disability because he returned to work the day after his injury. His allegation that his disability prevented him from performing his job, however, must be assumed true at this juncture. Whether{**81 Misc 3d at 880} that allegation is true remains a factual question to be determined at a later stage. (First Majestic Silver Corp. v Heitz, 208 AD3d 1130, 1131 [1st Dept 2022]; Le Bihan v 27 Wash. Sq. N. Owner LLC, 205 AD3d 616, 618 [1st Dept 2022].)

Certainly reporting to work does not establish the ability to perform the functions of the job as a matter of law. Plaintiff alleges that his doctor advised him to rest and not work for one week. While plaintiff does not expressly allege that he informed defendants about the specific nature of his injury, he does allege that his injury was "physical" (Gangat aff exhibit A ¶ 45), which qualifies as a disability under both NYSHRL and NYCHRL. (Executive Law § 292 [21]; Administrative Code § 8-102; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]; Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884-885 [2013].)

[1] Although plaintiff's attorney presents the "doctor's note" alleged in the amended complaint, which is actually by a physician's assistant, indicating plaintiff suffered a wound that required sutures, no affidavit authenticates the note on personal knowledge so as to supplement the amended complaint. (See AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; VXI Lux Holdco, S.A.R.L. v SIC Holdings, LLC, 194 AD3d 628, 628 [1st Dept 2021]; Ninth Space LLC v Goldman, 192 AD3d 594, 594 [1st Dept 2021]; M & E 73-75 LLC v 57 Fusion LLC, 189 AD3d 1, 5 [1st Dept 2020].) Nevertheless, plaintiff alleges that he provided his doctor's note to defendants, which raises a reasonable inference that plaintiff requested a leave of absence to recover from his injury. Finally, plaintiff alleges that defendants discharged him based on his physical injury and his need for leave to recover. Plaintiff's allegations, liberally construed, thus state a claim for disability discrimination against defendants.

V. Plaintiff's Claim of Retaliation

To establish retaliation under NYCHRL (Administrative Code § 8-107 [7]), plaintiff must demonstrate that he participated in a protected activity, that defendants knew of this activity and acted adversely against him, and a causal connection between the protected activity and adverse action. (Executive Law § 296 [7]; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312-313 [2004]; Franco v Hyatt Corp., 189 AD3d 569, 571 [1st Dept 2020]; see Alshami v City Univ. of N.Y., 203 AD3d 592, 593 [1st Dept 2022].) Plaintiff alleges that he notified defendants{**81 Misc 3d at 881} he both "suffered from disabilities as the result of medical conditions" and "requested reasonable accommodation" that resulted in his termination. (Gangat aff exhibit A ¶ 45.) Defendants do not move to dismiss this claim based on plaintiff's failure to request an accommodation, but instead maintain that a request for a reasonable accommodation is not protected activity constituting grounds for a retaliation claim under New York City Administrative Code § 8-107 (7).

The authority that defendants rely on, however, predated a 2019 amendment to the statute that codified a request for a reasonable accommodation as protected activity. (Administrative Code § 8-107 [7] [v].) To the extent that defendants rely on Martinez v New York City Tr. Auth. (2020 NY Slip Op 33116[U], *21-22 [Sup Ct, NY County, Sept. 15, 2020]), the conduct at issue likely predated the statute. In any event, Martinez is unpersuasive since it did not consider Administrative Code § 8-107 (7) (v).

[2] Plaintiff also alleges a causal connection between his protected activity and defendants' retaliation. Although defendants insist that they discharged plaintiff because Village Plumbing was overstaffed and he was the most recently hired employee, he alleges that defendants' reasoning is pretextual, as defendants posted an online job notice for his position immediately after his termination. (Franco v Hyatt Corp., 189 AD3d at 571-572; see Forrest v Jewish Guild for the Blind, 3 NY3d at 305; Watson v Emblem Health Servs., 158 AD3d 179, 185 [1st Dept 2018].) Because plaintiff's allegations demonstrate that plaintiff engaged in protected activity resulting in his termination, he states a claim for retaliation against defendants. (Doe v New York City Police Dept., 190 AD3d 411, 413 [1st Dept 2021]; O'Rourke v National Foreign Trade Council, Inc., 176 AD3d 517, 517 [1st Dept 2019].)

VI. Conclusion

For the reasons explained above, the court denies defendants' motion to dismiss plaintiff's claims of discrimination and retaliation under the New York State and New York City Human Rights Laws (Executive Law § 296; Administrative Code § 8-107), except for his retaliation claim under the New York State Human Rights Law (Executive Law § 296 [7]), which is discontinued. (CPLR 3211 [a] [7]; 3217 [b].)