| Margerum v City of Buffalo |
| 2011 NY Slip Op 03461 [83 AD3d 1575] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| —Eugene Margerum et al., Respondents, v City of Buffalo etal., Appellants. |
—[*1] Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredNovember 29, 2010. The order, inter alia, granted those parts of plaintiffs' motion seeking partialsummary judgment on liability against defendants City of Buffalo and City of BuffaloDepartment 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 Departmentof Fire (Fire Department), commenced this action alleging that defendants discriminated againstthem by allowing promotional eligibility lists created pursuant to the Civil Service Law to expiresolely on the ground that plaintiffs, who were next in line for promotion, were Caucasian. On aprior appeal, we determined that Supreme Court erred in granting plaintiffs' cross motion forpartial summary judgment on liability but that the court properly denied defendants' motion todismiss the complaint (see Margerum vCity of Buffalo, 63 AD3d 1574 [2009]). Shortly after our decision therein, the UnitedStates Supreme Court decided a similar employment discrimination case, Ricci vDeStefano (557 US —, —, 129 S Ct 2658, 2677 [2009]), in which it concludedthat, "before an employer can engage in intentional discrimination for the asserted purpose ofavoiding or remedying an unintentional disparate impact, the employer must have a strong basisin evidence to believe it will be subject to disparate-impact liability if it fails to take therace-conscious, discriminatory action." The Court further stated that "[a]n employer may defendagainst [such] liability by demonstrating that the practice is 'job related for the position inquestion and consistent with business necessity' " (557 US at —, 129 S Ct at 2673). Wethereafter denied the motion of [*2]defendants for leave to renewtheir motion to dismiss the complaint and the cross motion of plaintiffs for leave to renew theirmotion for partial summary judgment on liability (see Margerum v City of Buffalo, 66 AD3d 1502 [2009]).
Plaintiffs subsequently moved for partial summary judgment on liability before SupremeCourt, 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 ofBuffalo and the Fire Department (collectively, City defendants). We affirm. We agree with thecourt that the City defendants did not have a strong basis in evidence to believe that they wouldbe 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-relatedand consistent with business necessity (see Ricci, 557 US at —, 129 S Ct at 2678).Thus, the City defendants failed to meet the standard set forth in Ricci, and plaintiffs areentitled to summary judgment on liability against them (see Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282[City of Buffalo], 79 AD3d 1737 [2010]). Present—Smith, J.P., Peradotto,Lindley, Sconiers and Martoche, JJ.