The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 27, 28 were read on this motion to/for DISMISS.

Plaintiffs bring this action alleging three causes of action claiming they were discriminated against in the New York Police Department (hereinafter "NYPD") promotion process because of their race as Hispanic males, in violation of the New York City Human Rights Law (hereinafter "NYCHRL"). Defendants move pursuant to CPLR § 3211(a)(5) and (a)(7) to dismiss the action. Plaintiffs oppose and cross-move to amend the third-amended complaint pursuant to CPLR § 3025(b), and Defendants filed their reply. For the reasons below, Defendants' motion to dismiss is partially granted and partially denied, and Plaintiffs' motion to amend is granted.

The following allegations are taken from the third-amended complaint and are presumed true for the purposes of this motion.^[FN1]

Plaintiffs are 15 current or former NYPD Detectives 3rd Grade who are Hispanic males (NY St Cts Elec Filing [hereinafter "NYSCEF"] Doc No. 10 at ¶¶ 11-40). Twelve of the 15 Plaintiffs have retired from the NYPD between 2021 and 2024 (id.). Defendants are current or former NYPD Commissioners Edward Caban, Keechant Sewell, and Dermot Shea (collectively, "Individual Defendants"), and the City of New York (id. at ¶¶ 41-44).^[FN2]

NYPD promotions occur by: (1) operation of law; (2) competitive civil service exam; and (3) the NYPD's Discretionary Promotion Practice/Policy (Promotion Policy) (id. at ¶ 45). The NYPD commissioner is the only person authorized to award promotions to employees (id. at ¶ 47). Promotions from police officer to Detective 3rd Grade may be achieved by discretion or operation of law (id. at ¶¶ 68, 70). However, promotions from Detective 3rd Grade to Detective 2nd Grade are achieved by the Promotion Policy and only the NYPD Commissioner is authorized to award such promotion (id. at ¶ 95).

In 2018, the NYPD Commissioner received a report identifying certain defects in the Promotion Policy (id. at ¶ 102). In 2021, the NYPD put in place a written version of the Promotion Policy, which delineated the steps for promotions but did not fix the problems of the prior unwritten promotion practice (id. at ¶¶ 103-104). The Promotion Policy provided a list of criteria that supervisors needed to consider before making a recommendation for promotion but it did not provide guidance on the weighing of that criteria (id. at ¶ 106). Further, the Promotion Policy did not allow a Detective 3rd Grade to formally apply for promotion to Detective 2nd Grade and did not provide notice for a Detective 3rd Grade to satisfy the requirements to receive a promotion recommendation or what the requirements were to be satisfied to receive a promotion to Detective 2nd Grade (id. at ¶ 105). The lack of guidance for weighing the promotion criteria was one of the concerns identified in the 2018 report that has not been addressed (id. at ¶ 107).

Plaintiffs were never promoted to Detective 2nd Grade (id. at ¶¶ 152, 157, 184, 209, 236, 263, 265-266, 289, 309, 317, 334, 350, 376-377, 401-402, 428, 450, 453, 480, 483, 500, 503). [*2]Many of the Plaintiffs received positive performance reviews and were recommended for promotion (id. at ¶¶ 139, 144-151, 175, 182, 205-207, 231-232, 257-259, 264, 282, 310-311, 372, 375, 377, 400, 402-403, 499). Plaintiffs' promotion denials prevented them from receiving increased salary, overtime, and pension benefits (id. at ¶ 518).

Comparatively, other similarly situated, non-Hispanic Detectives 3rd Grade were promoted to Detectives 2nd or 1st Grade (id. at ¶¶ 509-585). Other non-Hispanic detectives with blemished records were promoted to Detective 2nd or 1st Grade (id.). Hispanic Detectives 3rd Grade were promoted to Detectives 2nd grade at a rate of 72.17% compared to their Asian colleagues that were promoted from Detective 3rd Grade to Detective 2nd Grade (id. at ¶ 125). Additionally, Hispanic Detectives 3rd Grade were promoted to Detective 2nd Grade at a rate of 73.94% compared to their Caucasian colleagues that were promoted from Detective 3rd Grade to Detective 2nd Grade (id. at ¶¶ 127, 590). Under the Four-Fifths Rule, if the selection rate for one group is below 80% of the group with the highest selection rate, then a disparate impact on that group exists (id. at ¶ 130).

Plaintiffs commenced this action on November 14, 2023 (NYSCEF Doc. 1). Plaintiffs allege that they were racially discriminated: (1) by being denied promotions since the Promotion Policy had a disparate impact against them as Hispanic males; (2) the Promotion Policy continued a pattern or practice of racial disparate treatment in the promotion process; and (3) Defendants knew, or should have known, of the race discrimination in the promotion process but failed to take reasonable steps to prevent such discrimination (NYSCEF Doc. 10 at ¶¶ 668-714).

On a motion to dismiss under CPLR 3211, the complaint is afforded a liberal construction. Leon v Martinez, 84 NY2d 83, 87 (1994); see also Eccles v Shamrock Capital Advisors, LLC, 42 NY3d 321, 342 (2024). The court is required to give the Plaintiff "the benefit of every possible inference, and determin[e] only whether the facts as alleged fit within any cognizable legal theory." Kolchins v Evolution Mkts, Inc., 128 AD3d 47, 57 (1st Dept 2015), affd 31 NY3d 100 (2018) (internal quotation marks and citation omitted). However, "allegations consisting of bare legal conclusions . . . are not entitled to any such consideration." Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 (2017) (internal quotation marks and citation omitted).

Defendants argue that Plaintiffs' claims are time-barred by the three-year statute of limitations under the NYCHRL. They assert that since Plaintiffs' action commenced on November 14, 2020, any promotional opportunities prior to that time are beyond the statute of limitations and must be dismissed.

Plaintiffs do not dispute that the NYCHRL has a three-year statute of limitations. Rather, they assert that this matter only relates to claims that occurred on or after November 14, 2020.

For a motion to dismiss under CPLR § 3211(a)(5), a cause of action under the NYCHRL will be dismissed if it is barred due to the three-year statute of limitations. Campbell v New York City Dept. of Educ., 200 AD3d 488, 488 (1st Dept 2021); Administrative Code of City of NY § 8-502 (d). Actions pertaining to discrimination under the NYCHRL must be initiated within three years of the alleged discriminatory conduct. Herrington v Metro-North Commuter R.R. [*3]Co., 118 AD3d 544, 544 (1st Dept 2014).

Plaintiffs commenced this action on November 14, 2023. The parties agree that the NYCHRL three-year statute of limitations preclude any promotional opportunity claims that accrued prior to November 14, 2020. Accordingly, any claims that accrued before November 14, 2020, are dismissed.

Defendants contend that Plaintiffs failed to sufficiently allege that the Individual Defendants participated in the discriminatory conduct. They assert that Plaintiffs only provided vague, speculative, and conclusory allegations regarding the Individual Defendants' involvement in the discriminatory actions based on Plaintiffs' race.

Plaintiffs argue that they have sufficiently pled facts to show that the Individual Defendants are liable for discrimination under the NYCHRL. Plaintiffs' assert that the NYPD Commissioner's authority to promote employees is stated in the Administrative Code of the City of New York and that the NYPD Commissioner is the sole person authorized to award promotions.

Defendants reply reasserts that Plaintiffs did not allege sufficient facts that the Individual Defendants participated in the discriminatory conduct. Defendants also argue that no facts were alleged that the Individual Defendants were personally involved in promotional decisions or that they harbored discriminatory animus towards Hispanic employees. They also contend that disparate treatment or disparate impact discrimination may show a pattern of discrimination that exists for an entity but does not provide adequate support that individuals engaged in discrimination.

For a motion under CPLR § 3211(a)(7), the applicable standard "is whether, within the four corners of the complaint, any cognizable cause of action has been stated." Scott v Bell Atl. Corp., 282 AD2d 180, 183 (1st Dept 2001), affd as mod sub nom. Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 (2002). "The only question is whether the complaint adequately alleges facts giving rise to a cause of action, not whether [it] properly labeled or artfully stated one." Tax Equity Now NY LLC v City of New York, 42 NY3d 1, 12 (2024) (internal quotation marks and citation omitted). Courts do not consider whether a Plaintiff can establish its allegations for deciding a motion to dismiss. EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 (2005).

The NYCHRL makes it unlawful practice to discriminate against an employee in compensation or in terms, conditions, or privileges of employment based on, inter alia, an employee's race. See Administrative Code of the City of NY § 8-107 (1)(a)(3). To establish a prima facie claim of discrimination, the Plaintiff must show (1) they are a member of a protected class; (2) they were qualified to hold the position; (3) they were terminated from employment or suffered another 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). To prevail on the fourth element, the Plaintiff must sufficiently plead that unlawful discrimination was at least one of the motivating factors. Askin v Department of Educ. of City of NY, 110 AD3d 621, 622 (1st Dept 2013).

Analyzing claims under the NYCHRL, "should be construed more broadly in favor of discrimination Plaintiffs, to the extent that such a construction is reasonably possible." Watson v Emblem Health Servs., 158 AD3d 179, 182 (1st Dept 2018) (internal quotation marks and citation omitted). Thus, to establish a discrimination claim under the NYCHRL, the Plaintiff only needs to demonstrate by a preponderance of the evidence that they were treated less well [*4]than other employees because of their protected status. Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 (2d Cir 2013), citing Williams v New York City Hous. Auth., 61 AD3d 62, 78 (1st Dept 2009).

The NYCHRL allows for individual employee liability for discrimination. Russell v New York Univ., 42 NY3d 377, 389 (2024). Liability attaches to formal managers and supervisors but also employees with any ability to control or administer the compensation, terms, conditions, or privileges of employment (id. at 389-90).

Finally, employment discrimination cases are generally reviewed under a notice pleading standard whereby the Plaintiff is not required to give specific facts but rather only provide the Defendant with fair notice of the nature and grounds of the Plaintiff's claims. Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 (1st Dept 2009); see also Matter of McIntosh v Department of Educ. of the City of NY, 115 AD3d 464, 464 (1st Dept 2014).

Defendants motion to dismiss for the Individual Defendants under CPLR § 3211(a)(7) is denied. Plaintiffs have sufficiently alleged that the Individual Defendants are or were NYPD Commissioners and that the NYPD Commissioner is the only person allowed to award promotions. Plaintiffs sufficiently alleged that they were treated less well than other employees since they were not promoted while other non-Hispanic detectives were promoted. The facts in the complaint provide fair notice of a discrimination claim.

Plaintiffs argue that they are amending the complaint to add greater detail for the discrimination claims against the Individual Defendants. The proposed amendments include, inter alia: (1) the time frames the Individual Defendants were the NYPD Commissioner; (2) that they held supervisory roles as NYPD Commissioner; (3) the promotional authority of the NYPD Commissioner as stated in the Administrative Code of the City of New York; and (4) that the Individual Defendants had knowledge of the discriminatory effects of the Promotion Policy.

Defendants argue that the proposed amendments are futile. They contend that the proposed amendments do not cure deficiencies against the Individual Defendants and are merely conclusory, which is insufficient to satisfy the notice pleading standard under the NYCHRL. Defendants also assert that including certain provisions of the Administrative Code of the City of New York are futile because it does not show that the Individual Defendants were responsible or involved in the promotions and such proposition would make NYPD Commissioners potentially liable for every discrimination claim because the NYPD Commissioner has statutory authority over employment decisions.

"Leave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay." Murray v City of New York, 51 AD3d 502, 503 (1st Dept 2008) quoting Fahey v Ontario County, 44 NY2d 934, 935 (1978) (internal quotation marks omitted); CPLR § 3025 (b). Leave to amend a complaint is freely given "so long as the proposed claims are not palpably insufficient or devoid of merit." Brummer v Wey, 187 AD3d 566, 566 (1st Dept 2020). Granting leave is a function of the trial court and relief to amend will not be overturned on appeal unless there is a showing "that the facts supporting the amendment do not support the purported claim or claims." Loewentheil v White Knight, Ltd., 71 AD3d 581 (1st Dept 2010) (internal quotation marks and citation omitted).

Plaintiffs' cross-motion is granted. The proposed facts offer support for the purported claims. The proposed facts illuminate that the NYPD Commissioner has statutory authority for promotions, provides the timeframes for when each of the Individual Defendants were NYPD [*5]Commissioner, and that the Individual Defendants were responsible for promotions in their role as NYPD Commissioner.

WHEREFORE, it is hereby:

ORDERED that, pursuant to CPLR § 3211(a)(5), Defendants' motion dismiss the complaint for claims that accrued before November 14, 2020, as barred by the statute of limitations is granted; it is further

ORDERED that, pursuant to CPLR § 3211(a)(7), Defendants' motion dismiss the complaint for failure to state a claim against Defendants Edward Caban, Keechant Sewell, Dermot Shea, is denied; and it is further

ORDERED that, pursuant to CPLR § 3025(b), Plaintiffs' cross-motion to amend the complaint is granted; it is further

ORDERED that Defendants are directed to serve an answer to the fourth amended complaint within 20 days after service of a copy of this order with notice of entry; it is further

ORDERED that, within 20 days from entry of this order, Defendants shall serve a copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further

ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/s upctmanh).

This constitutes the decision and order of the court.