| Hubbard v New York State Off. of Mental Health, Cent. N.Y.Psychiatric Ctr. |
| 2021 NY Slip Op 01661 [192 AD3d 1586] |
| March 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| Joseph H. Hubbard, Appellant, v New York StateOffice of Mental Health et al., Respondents. |
Bosman Law, L.L.C., Blossvale (A.J. Bosman of counsel), for plaintiff-appellant.
Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Oneida County (David A. Murad, J.), enteredMarch 14, 2019. The judgment dismissed plaintiff's amended and supplemental complaint in itsentirety.
It is hereby ordered that the judgment so appealed from is modified on the law by denyingthat part of the motion for a directed verdict with respect to the fourth cause of action exceptinsofar as asserted against defendant Mary Carli and reinstating the third through sixth and ninththrough twelfth causes of action except insofar as asserted against Carli, and a new trial isgranted on those causes of action and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff, an Iraq War veteran suffering from posttraumatic stress disorder,commenced this action alleging, inter alia, employment discrimination based upon military statusand disability and retaliation. Following a trial, the jury returned a verdict in favor of defendants.Plaintiff now appeals from the ensuing judgment.
In his "amended and supplemental complaint," plaintiff asserted 15 causes of action basedupon various federal and state statutes, including the Rehabilitation Act of 1973 (RehabilitationAct) (29 USC § 701 et seq.). Before trial, plaintiff stipulated to thedismissal of the first, eighth, and thirteenth causes of action, and Supreme Court additionallydismissed the seventh, fourteenth, and fifteenth causes of action. Those causes of action wereasserted against defendants New York State Office of Mental Health (OMH) and Central NewYork Psychiatric Center (CNYPC) only, and were dismissed on the ground that the Court ofClaims had exclusive jurisdiction.
The trial testimony of plaintiff established that he was formerly employed as a securityhospital treatment assistant (SHTA) at CNYPC and that, during his employment, he applied forthe position of senior SHTA on several occasions, only to be rejected each time. After plaintifffiled a complaint with the Equal Employment Opportunity Commission, defendants continued toreject his applications for promotion. Other witnesses who testified on plaintiff's behalf includedfive persons currently or formerly employed in the position of senior SHTA or supervisor SHTA.One senior SHTA testified that plaintiff had not been promoted because "[t]here was a questionafter [his] military service about his stability, mental stability." One supervisor SHTA testifiedthat defendant Patricia Bardo, CNYPC's director of human resources, told him something to theeffect that plaintiff's application had been "set . . . aside . . . becausehe's suing [CNYPC]."
Following the close of all proof, defendants moved for a directed verdict. The court grantedthe motion in part, dismissing the causes of action for discrimination and retaliation based onmilitary status and all causes of action insofar as asserted against defendant Mary Carli. [*2]In summation, defendants' attorney argued that plaintiff had to meethis burden of proof before "Bardo, for example, can be forced to open up her checkbook andwrite somebody a check." Plaintiff's attorney made a contemporaneous objection and, followingthe completion of summations, requested a curative instruction. Plaintiff's attorney argued thatthe remark was prejudicial, particularly in light of Public Officers Law § 17, whichprovides for indemnification of state officers and employees, such as the individual defendants.The court denied plaintiff's request on the ground that the individual defendants "can be on thehook for damages." The causes of action based on disability were submitted to the jury, whichreturned a verdict in favor of defendants.
Plaintiff contends that the court erred in dismissing the seventh and fourteenth causes ofaction. More particularly, plaintiff contends that Supreme Court has jurisdiction over claimsagainst state entities based on the Rehabilitation Act because the state has waived its sovereignimmunity by accepting federal funds. We reject that contention. The federal statute upon whichplaintiff relies provides in relevant part that states receiving federal financial assistance "shall notbe immune under the Eleventh Amendment . . . from suit in Federal court for aviolation of" the Rehabilitation Act (42 USC § 2000d-7 [a] [1]). The statute by itsown terms applies only to federal courts. Moreover, the Eleventh Amendment preserves thestate's sovereign immunity from suit in federal courts (see Edelman v Jordan, 415 US651, 662-663 [1974]; Hans v Louisiana, 134 US 1, 10 [1890]), and in no way implicatesthe state's sovereign immunity from suit in its own courts, which is derived not from the USConstitution, but from the ancient common law (see Glassman v Glassman, 309 NY 436,440 [1956]). Significantly, all of the cases upon which plaintiff relies are unpublished cases fromUnited States District Courts. In light of the unambiguous statutory language, anypronouncement by those courts that New York has waived its sovereign immunity from suit mustbe understood to apply only in federal court. Nevertheless, New York waived sovereignimmunity from actions principally to recover money damages long ago on the condition that theclaimants bring suit in the Court of Claims (see Court of Claims Act§§ 8, 9). Thus, "[t]he Court of Claims has exclusive jurisdiction over actionsfor money damages against State agencies, departments, officials, and employees acting in theirofficial capacity in the exercise of governmental functions" (Byvalets v State of New York, 171 AD3d 1125, 1126 [2d Dept2019]; see Morell v Balasubramanian, 70 NY2d 297, 300 [1987]).
Plaintiff further contends that the court erred in granting defendants' motion for a directedverdict with respect to plaintiff's cause of action under the New York Human Rights Lawalleging discrimination based on military status, i.e., the fourth cause of action. We agree.Initially, we note that plaintiff does not contend that the court erred in granting the motion for adirected verdict with respect to Carli, and therefore we deem any challenge thereto to beabandoned (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]). Adirected verdict is properly granted where, " 'upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmoving party. . . In determining whether to grant a motion for a directed verdict pursuant toCPLR 4401, the trial court must afford the party opposing the motion every inference which mayproperly be drawn from the facts presented, and the facts must be considered in [the] light mostfavorable to the nonmovant' " (Bolin v Goodman, 160 AD3d 1350, 1351 [4th Dept 2018]; seeSzczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Based upon the senior SHTA's testimony thatplaintiff was not promoted because "[t]here was a question after [plaintiff's] military serviceabout his [mental] stability," the jury could have rationally inferred that defendants refused topromote plaintiff in part because they perceived that combat veterans, such as plaintiff, developdangerous and disqualifying mental health issues as a result of their military service. Thus, "itcannot be said that 'it would . . . be utterly irrational for a jury to reach [a verdict infavor of plaintiff]' " (Polka vMount St. Mary's Hosp. of Niagara Falls, 187 AD3d 1538, 1539 [4th Dept 2020],quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Insofar as the dissent relieson contrary testimony, such testimony merely creates a question of fact for resolution by the jury(see Wolf v Persaud, 130 AD3d1523, 1525 [4th Dept 2015]). We therefore modify the judgment by denying that part of themotion for a directed verdict with respect to the fourth cause of action except insofar as it isasserted against Carli and reinstating that cause of action to that extent.
We further agree with plaintiff that he was denied a fair trial by the defense attorney'sreference to his clients' checkbooks. As a preliminary matter, we conclude that plaintiff preservedthat contention for our review by lodging a timely objection and unsuccessfully seeking acurative instruction (cf. Country ParkChild Care, Inc. v Smartdesign Architecture [*3]PLLC, 129AD3d 1636, 1637 [4th Dept 2015]; Lucian v Schwartz, 55 AD3d 687, 689 [2d Dept 2008], lvdenied 12 NY3d 703 [2009]). On the merits, remarks about a party's financial status "havebeen universally condemned by the courts of this State" (Vassura v Taylor, 117 AD2d798, 799 [2d Dept 1986], appeal dismissed 68 NY2d 643 [1986]; see also Leotta vPlessinger, 8 NY2d 449, 461 [1960], rearg denied 9 NY2d 688 [1961], mot toamend remittitur granted 9 NY2d 686 [1961]; Constable v Matie [appeal No. 3], 199AD2d 1004, 1005 [4th Dept 1993]). The defense attorney's argument that his clients should notbe "forced to open [their] checkbook" likely conveyed that the individual defendants would berequired to pay any damages out-of-pocket. That remark was "grossly improper"(Vassura, 117 AD2d at 799) and "may very well have engendered sympathy in the jurors'minds" (Rendo v Schermerhorn, 24 AD2d 773, 773 [3d Dept 1965]). Moreover, itmisrepresented the law to the jury. The State has a duty to indemnify its employees for judgmentsthat arise out of actions within the scope of their public duties, although that duty does not arisefrom injury or damage resulting from intentional wrongdoing on the part of the employee(see Public Officers Law § 17 [3] [a]). We conclude, under thecircumstances, that the defense attorney's remark deprived plaintiff of a fair trial (seeDepelteau v Ford Motor Co., 28 AD2d 1178, 1179 [3d Dept 1967]; Rendo, 24 AD2dat 773; cf. Boehm v Rosario, 154AD3d 1298, 1298 [4th Dept 2017]). Therefore, we further modify the judgment byreinstating the third, fifth, sixth and ninth through twelfth causes of action except insofar as theyare asserted against Carli, and we grant a new trial on those causes of action (see generallyRendo, 24 AD2d at 773).
Because a new trial is required, we address plaintiff's challenges to the jury instructions inthe interest of judicial economy, and we reject plaintiff's contentions in that regard. With respectto plaintiff's request for a missing witness charge, we note that plaintiff failed to name or identifythe supervisor SHTAs who defendants failed to call as witnesses and thereby failed todemonstrate that the witnesses were available and under defendants' control (cf. R. T. CornellPharmacy v Guzzo, 135 AD2d 1000, 1001-1002 [3d Dept 1987], appeal dismissed71 NY2d 928 [1988]; see generally People v Gonzalez, 68 NY2d 424, 427 [1986]). Theremaining challenges lack merit because the relevant portions of the jury instructionssubstantially conformed to the Pattern Jury Instructions and stated the relevant legal principles(see Spensieri v Lasky, 94 NY2d 231, 239-240 [1999]).
In light of our determination, we do not consider plaintiff's remaining contentions.
All concur except Curran, J., who dissents and votes to affirm in the followingmemorandum.
Curran, J. (dissenting). I respectfully dissent and would affirm the judgment. With respect tothe majority's conclusion that Supreme Court erred in granting defendants' motion for a directedverdict with respect to the fourth cause of action except insofar as asserted against defendantMary Carli, I submit that the majority's reliance on one sentence of testimony from the seniorsecurity hospital treatment assistant (SHTA) does not warrant denying the motion to that extent.It is well settled that " 'a directed verdict is appropriate where the . . . courtfinds that, upon the evidence presented, there is no rational process by which the fact trier couldbase a finding in favor of the nonmoving party' " (A&M Global Mgt. Corp. v Northtown Urology Assoc., P.C., 115AD3d 1283, 1287 [4th Dept 2014]; see Szczerbiak v Pilat, 90 NY2d 553, 556[1997]). Here, viewed as a whole, there is no rational view of the evidence through which thejury could conclude that the one sentence of testimony from the senior SHTA supports a verdictin favor of plaintiff on the fourth cause of action, for discrimination under the New York HumanRights Law based on military status (see generally Cohen v Hallmark Cards, 45 NY2d493, 499 [1978]; Estate of Smalley vHarley-Davidson Motor Co. Group LLC, 170 AD3d 1549, 1551 [4th Dept 2019]; City of Plattsburgh v Borner, 38 AD3d1047, 1049 [3d Dept 2007]).
First, the senior SHTA's testimony was predicated on the expressed "concerns" ofunspecified administrators about promoting plaintiff. Second, the brief testimony establishingthose "concerns" related to plaintiff's "mental stability" "after [his] military service," andwere not about his military service per se (emphasis added). Third, the witness alsotestified that, after plaintiff complained about not being promoted, the witness attended a meetingwith an administrator and plaintiff wherein the administrator expressed concern that plaintiff"might not be stable enough" for the promotion. Fourth, the senior SHTA testified that he did notthink "anybody negatively looked at [plaintiff] because he served" in the military and never heardany "negative comments [about plaintiff] because of his military service." Thus, when theevidence is viewed in totality, the one sentence of testimony from the senior SHTA that has beenidentified [*4]by the majority does not warrant a new trial on thecauses of action for discrimination based on military status because it does not rationally permitthe inference that plaintiff was not promoted due to his military status (see generally Montas v JJC Constr.Corp., 92 AD3d 559, 560-561 [1st Dept 2012], affd 20 NY3d 1016 [2013]).
I also respectfully disagree with the majority that plaintiff is entitled to a new trial due todefense counsel's improper comment on summation. Plaintiff effectively waived his objection tothe challenged remark by not moving for a mistrial and choosing instead to "speculate upon afavorable verdict" (Virgo v Bonavilla, 49 NY2d 982, 984 [1980]). In any event, "thesingle instance of alleged misconduct . . . of [defense counsel] was not so egregiousor prejudicial as to deny [plaintiff] his right to a fair trial" (Matter of State of New York v Chrisman, 75 AD3d 1057, 1058[4th Dept 2010]; see generally Dennis vMassey, 134 AD3d 1532, 1533 [4th Dept 2015]; Guthrie v Overmyer, 19 AD3d 1169, 1171 [4th Dept 2005]). Thesingle challenged comment, which implied that the individual defendants would have to paydamages out-of-pocket, although improper, was not "so flagrant or excessive" to warrant a newtrial (Backus v Kaleida Health, 91AD3d 1284, 1287 [4th Dept 2012] [internal quotation marks omitted]).
Further, the court did not err in refusing to give the jury a curative instruction advising them,inter alia, that the "defendants are indemnified" by the State of New York (see generallyJarvis v LaFarge N. Am., Inc. [appeal No. 4], 52 AD3d 1179, 1181 [4th Dept 2008], lvdenied 11 NY3d 707 [2008]). Any such instruction would have been an incorrect statementof the law inasmuch as plaintiff was seeking, inter alia, punitive damages for the individualdefendants' intentional wrongdoing, which is not subject to indemnification by the State(see Public Officers Law § 17 [3] [a]). In short, I perceive no basis on thisrecord upon which to conclude that the single comment made by defense counsel on summation,and the court's failure to issue the requested curative instruction, deprived plaintiff of a fair trial.Present—Smith, J.P., Curran, Troutman and DeJoseph, JJ.