| Matter of Adler v Hooper |
| 2011 NY Slip Op 06261 [87 AD3d 633] |
| August 16, 2011 |
| Appellate Division, Second Department |
| In the Matter of Ellen Adler et al., Petitioners, v SharonHooper et al., Respondents. |
—[*1] Berke-Weiss & Pechman, LLP, New York, N.Y. (Louis Pechman of counsel), for respondentSharon Hooper. Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondent StateDivision of Human Rights.
Proceeding pursuant to Executive Law § 298 to review a determination of theCommissioner of the New York State Division of Human Rights dated May 28, 2009, whichadopted an alternative proposed order dated April 21, 2009, made after a hearing, finding that thepetitioners had discriminated against the complainant on the basis of disability, and awarded thecomplainant damages in the principal sums of $36,378 for back pay and $15,000 incompensatory damages for mental anguish, and the New York State Division of Human Rightscross-petitions to enforce the determination.
Adjudged that the petition is granted, on the law, to the extent of annulling so much of thedetermination as found that the petitioners Ellen Adler and Harbor Air Express, Inc., unlawfullydiscriminated against the complainant based on her disability, and awarded the complainantdamages, payable by the petitioners Ellen Adler and Harbor Air Express, Inc., the cross petitionis granted, on the law, to the extent of enforcing so much of the determination as found that thepetitioner Barian Shipping Company, Inc., unlawfully discriminated against the complainantbased on her disability, and awarded the complainant damages, payable by the petitioner BarianShipping Company, Inc., the petition and cross petition are otherwise denied, and the proceedingis otherwise dismissed, without costs or disbursements.
In August 2003 Sharon Hooper (hereinafter the complainant) filed an administrativecomplaint with the New York State Division of Human Rights (hereinafter the Division) againstthe respondents Barian Shipping Company, Inc. (hereinafter Barian) and Harbor Air Express, Inc.(hereinafter Harbor), alleging discrimination based on disability. At a May 2007 hearing beforeadministrative law judge (hereinafter ALJ) Bowden, the complainant sought unsuccessfully toadd as a respondent Ellen Adler, the vice-president of Barian and Harbor. ALJ Bowdenultimately recommended dismissal of the proceeding.[*2]
In October 2007 the Division's Commissioner, on herown motion, amended the caption and the complaint to include Adler individually as arespondent, and returned the matter to the hearings unit to reopen the record to allow Adler todefend against the complaint. On May 19, 2008, a second hearing took place before ALJ Tuosto.Thereafter, ALJ Tuosto recommended dismissal of the proceeding against Adler. However, onApril 21, 2009, the Division's adjudication counsel issued an alternative proposed order, findingthat Barian, Harbor, and Adler had unlawfully discriminated against the complainant based onher disability, and awarding her compensatory damages. By final order dated May 28, 2009, theCommissioner adopted the alternative proposed order. Thereafter, Adler, Barian, and Harborcommenced a proceeding in the Supreme Court to vacate the order dated May 28, 2009, and theDivision cross-petitioned to enforce the order. By order entered December 11, 2009, the SupremeCourt transferred the proceeding to this Court.
Any complaint filed pursuant to Executive Law § 297 "must be so filed within oneyear after the alleged unlawful discriminatory practice" (Executive Law § 297 [5]). In thiscase, Adler was ordered joined as a respondent more than four years after the allegeddiscriminatory practice. Thus, the joinder of Adler was untimely unless it "related back" to thetimely complaint filed against Barian and Harbor in August 2003 (see Matter of Murphy vKirkland, — AD3d —, —, 2011 NY Slip Op 06271, *5 [2011] [decidedherewith]). The relation-back doctrine, which is codified in CPLR 203 (b), allows the addition ofa party after the expiration of the statute of limitations if (1) both claims arose out of the sameconduct, transaction, or occurrence, (2) the additional party is united in interest with the originalparty, and by reason of that relationship can be charged with notice of the institution of the actionsuch that he or she will not be prejudiced in maintaining a defense on the merits, and (3) theadditional party knew or should have known that, but for a mistake by the plaintiff as to theidentity of the proper parties, the action would have been brought against the additional party aswell (see Buran v Coupal, 87 NY2d 173, 178 [1995]; Bumpus v New York City Tr. Auth., 66 AD3d 26, 35 [2009]; Shapiro v Good Samaritan Regional Hosp.Med. Ctr., 42 AD3d 443, 444 [2007]).
Under the circumstances of this case, application of the relation-back doctrine would result inunfair prejudice to Adler and, therefore, application of the doctrine is barred under the secondprong of the test (see Buran v Coupal, 87 NY2d at 181). As previously noted, Adler wasordered joined as a respondent in October 2007, more than four years after the allegeddiscriminatory practice. Prior to her addition, ALJ Bowden denied the complainant's application,made at the May 23, 2007, hearing, to amend the complaint to add Adler individually as arespondent, specifically on the ground that the statute of limitations had expired.
Further, Adler was added several years after the corporate respondents had gone out ofbusiness in 2004. Adler testified at the second hearing that she was never an owner of eithercorporate respondent, and that her husband, John Barrie, was the sole shareholder of bothcorporations. Following this hearing, ALJ Tuosto recommended dismissal of the complaintagainst Adler on the ground that she acted merely as the complainant's supervisor, and that shedid not have an ownership interest in the entity which employed the complainant (seeBrotherson v Modern Yachts, 272 AD2d 493, 494 [2000] ["A corporate employee may beindividually subject to an employment discrimination suit under the Human Rights Law only ifhe or she has an ownership interest in the corporate employer, or has the authority 'to do morethan carry out personnel decisions made by others' "], quoting Patrowich v ChemicalBank, 63 NY2d 541, 542 [1984]). Significantly, Barrie passed away in November 2005. As aresult of the delay in joinder, Adler lost the opportunity to preserve any statements Barrie couldhave made regarding his ownership of the company, as well as Adler's duties and responsibilities(see Matter of Pepsico, Inc. v Rosa, 213 AD2d 550, 551 [1995]). Thus, under thecircumstances, Adler would be unfairly prejudiced by application of the relation-back doctrine(see Matter of Murphy v Kirkland, — AD3d —, 2011 NY Slip Op 06271[2011] [decided herewith]). Accordingly, we grant that branch of the petition which was to annulso much of the determination as found that Adler unlawfully discriminated against thecomplainant and awarded the complainant damages payable by Adler.
With respect to the corporate respondents, since the complainant was employed solely byBarian, not Harbor (see Brady v Helmsley, 246 AD2d 486, 487 [1998]), we also grantthat branch of the petition which was to annul so much of the determination as found that Harborunlawfully [*3]discriminated against the complainant andawarded the complainant damages payable by Harbor.
However, the Commissioner's determination that Barian unlawfully discriminated against thecomplainant on the basis of disability is supported by substantial evidence and, thus, cannot bedisturbed (see Matter of Consolidated Edison Co. of N.Y. v New York State Div. of HumanRights, 77 NY2d 411, 417 [1991]). Covello, J.P., Lott, Roman and Miller, JJ., concur.