        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

587.1
CA 11-00157
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY,
TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI,
SCOTT SKINNER, THOMAS REDDINGTON, TIMOTHY
CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD
ARNONE, AND DAVID DENZ, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF
FIRE, AND LEONARD MATARESE, INDIVIDUALLY AND AS
COMMISSIONER OF HUMAN RESOURCES FOR CITY OF
BUFFALO, DEFENDANTS-APPELLANTS.


HODGSON RUSS LLP, BUFFALO (JOSHUA FEINSTEIN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CHIACCHIA & FLEMING, LLP, HAMBURG (ANDREW P. FLEMING OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered November 29, 2010. The order, inter alia,
granted those parts of plaintiffs’ motion seeking partial summary
judgment on liability against defendants City of Buffalo and City of
Buffalo Department of Fire.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs, 13 firefighters employed by defendant
City of Buffalo Department of Fire (Fire Department), commenced this
action alleging that defendants discriminated against them by allowing
promotional eligibility lists created pursuant to the Civil Service
Law to expire solely on the ground that plaintiffs, who were next in
line for promotion, were Caucasian. On a prior appeal, we determined
that Supreme Court erred in granting plaintiffs’ cross motion for
partial summary judgment on liability but that the court properly
denied defendants’ motion to dismiss the complaint (see Margerum v
City of Buffalo, 63 AD3d 1574). Shortly after our decision therein,
the United States Supreme Court decided a similar employment
discrimination case, Ricci v DeStefano (___ US ___, ___, 129 S Ct
2658, 2677), in which it concluded that, “before an employer can
engage in intentional discrimination for the asserted purpose of
avoiding or remedying an unintentional disparate impact, the employer
must have a strong basis in evidence to believe it will be subject to
                                 -2-                           587.1
                                                         CA 11-00157

disparate-impact liability if it fails to take the race-conscious,
discriminatory action.” The Court further stated that “[a]n employer
may defend against [such] liability by demonstrating that the practice
is ‘job related for the position in question and consistent with
business necessity’ ” (id. at 2673). We thereafter denied the motion
of defendants for leave to renew their motion to dismiss the complaint
and the cross motion of plaintiffs for leave to renew their motion for
partial summary judgment on liability (see Margerum v City of Buffalo,
66 AD3d 1502).

     Plaintiffs subsequently moved for partial summary judgment on
liability before Supreme Court, and defendants cross-moved for summary
judgment dismissing the complaint. The court, inter alia, granted
those parts of plaintiffs’ motion on liability with respect to
defendant City of Buffalo and the Fire Department (collectively, City
defendants). We affirm. We agree with the court that the City
defendants did not have a strong basis in evidence to believe that
they would be subject to disparate-impact liability if they failed to
take the race-conscious action, i.e., allowing the eligibility lists
to expire, inasmuch as the examinations in question were job-related
and consistent with business necessity (see Ricci, ___ US at ___, 129
S Ct at 2678). Thus, the City defendants failed to meet the standard
set forth in Ricci, and plaintiffs are entitled to summary judgment on
liability against them (see Matter of Buffalo Professional
Firefighters Assn., Inc., IAFF Local 282 [City of Buffalo], 79 AD3d
1737).




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
