

Bennett v Time Warner Cable, Inc. (2016 NY Slip Op 03103)





Bennett v Time Warner Cable, Inc.


2016 NY Slip Op 03103


Decided on April 26, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 26, 2016

Renwick, J.P., Andrias, Saxe, Richter, JJ.


265 152686/14

[*1]Fletcher Bennett, et al., Plaintiffs-Respondents,
vTime Warner Cable, Inc., Defendant-Appellant.


Kauff McGuire & Margolis LLP, New York (Marjorie B. Kulak of counsel), for appellant.
Archer, Byington, Glennon & Levine LLP, Melville (Robert T. McGovern of counsel), for respondents.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered November 26, 2014, which, insofar as appealed from as limited by the briefs, denied defendant's motion to dismiss plaintiffs' claims under the New York State and New York City Human Rights Laws for age-based discrimination based on a theory of disparate impact, unanimously affirmed, without costs.
Plaintiffs allege, among other things, that they were general foremen in their 50's and 60's, and that defendant's decision to eliminate the general foreman position disproportionately affected them in comparison to younger workers. Crediting their allegations for purposes of this motion to dismiss (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]), plaintiffs have adequately pleaded claims for age discrimination based on a disparate impact theory under the State and City Human Rights Laws (Executive Law § 296; Administrative Code of City of NY § 8-107; see Mete v New York State Off. of Mental Retardation & Dev. Disabilities, 21 AD3d 288, 296-297 [1st Dept 2005]; see also Teasdale v City of New York, 2013 WL 5300699, *8, *12, 2013 US Dist LEXIS 133764, *21-22, *34-35 [ED NY, Sept. 18, 2013, No. 08-CV-1684 (KAM)], affd sub nom. Teasdale v New York City Fire Dept., 574 Fed Appx 50 [2d Cir 2014]).
Defendant incorrectly argues that the Supreme Court was bound by the decision in Bohlke v General Elec. Co. (293 AD2d 198 [3d Dept 2002], lv dismissed 98 NY2d 693 [2002]). This Court has previously recognized that disparate impact claims alleging age discrimination are cognizable under the State Human Rights Law (see Mete at 296-297), and we choose to follow our own precedent. Furthermore, this Court has held that provisions of the City Human Rights Law must be construed broadly in favor of plaintiffs alleging discrimination and assessed under more liberal standards, going beyond the counterpart state or federal civil rights laws (see e.g. Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009], lv denied 13 NY3d 702 [2009]). We note the decision in Bohlke did not involve a claim under the City Human Rights [*2]Law, and therefore would not be dispositive of plaintiffs' city law claim.
We have considered defendant's remaining contentions and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 26, 2016
CLERK


