Recitation, as required by CPLR §2219 [a], of the papers considered in the review of the defendant’s motion to dismiss: Papers Numbered Notice of Motion and Affidavit 1 Notice of Cross Motion and Affidavits Annexed 2 Answering Affidavits 3 Replying Affidavits 4 Sur Reply Affidavit 6 DECISION & ORDER After oral argument and a review of the submissions herein, the Court finds as follows: Defendants the City of New York and the New York City Department of Corrections (collectively “the City”) move to dismiss plaintiff’s complaint in its entirety pursuant to CPLR 3211. Plaintiff Christopher McEwan opposes and moves for summary judgment pursuant to CPLR 3212. Factual Background & Procedural History Plaintiff was appointed as a corrections officer for the New York City Department of Corrections on January 14, 2016. Approximately two years later, the Department of Corrections began investigation of two incidents regarding plaintiff and his alleged excessive use of force of an inmate on December 11, 2017. After a Personnel Determination Review of that incident, on February 16, 2018, plaintiff’s employment was terminated. (Summons and Complaint Exhibit D). Shortly thereafter, on March 26, 2018, plaintiff commenced an Article 78 proceeding challenging his termination. By settlement agreement dated February 1, 2019, that proceeding was resolved. Plaintiff’s termination was rescinded. He was awarded back pay and had his employment reinstated on February 25, 2019. On February 25, 2019, upon his reinstatement, plaintiff was served with disciplinary charges regarding the excessive force incident and another incident dated September 13, 2017. Immediately thereafter Plaintiff began this present action. Plaintiff now, by his Complaint, claims that the statutory period for defendant to bring said disciplinary charges have expired; that the Command Discipline dated December 22, 2017, Form 454, disposed of the charges alleging misconduct on December 11, 2017; that defendants waived their rights to pursue such charges by entering into the Stipulation Agreement dated February 1, 2019; that after a review and ruling by the New York State Department of Labor Unemployment Insurance Appeal Board defendants are collaterally estopped from pursuing said charges; that Civil Service law precludes defendant from bringing said charges because they are well passed the eighteen month timeframe from which to do so; and lastly that because the charges were filed prior to his reinstatement that this Court declare them null and void. Arguments Defendant now seeks to have plaintiff’s complaint dismissed maintaining that: 1. the court does not have subject matter jurisdiction of the cause of action, 2. plaintiff has no legal capacity to sue, and 3. that the pleadings fail to state a cause of action. Defendants main argument is that the complaint does not plead the requisite “injury-in-fact.” The City maintains that contrary to plaintiff’s claims, his 2018 termination was based upon a Personnel Determination Review which mistakenly designated his employment status as probationary. As a result, the parties then settled the Article 78 proceeding awarding plaintiff backpay and reinstating his employment. The City further maintains that by entering into that settlement agreement defendants did not waive their right to bring disciplinary proceedings for the alleged 2017 misconduct. Defendants further assert that the alleged Command Discipline which plaintiff’s complaint relied upon was never issued. Therefore, the Command Discipline’s recommended penalty of a loss of four (4) days of earned annual leave was never approved, never deducted from plaintiff’s leave account, and no penalty was ever carried out for that alleged misconduct. Defendants argue that claims regarding the Unemployment Insurance Appeal Board are not entitled to or a barred from collateral estoppel effect. And lastly, that the charges are timely as they were brought within the eighteen (18) month time period pursuant to CSL §75. Plaintiff opposes the same and cross moves seeking a declaratory judgment precluding the disciplinary charges. Plaintiff further argues that if the penalty was not imposed defendants failed to follow through with mandatory regulations namely the execution of form 7502-AR and as a result of the same plaintiff cannot be further prosecuted. Discussion When a party moves to dismiss a complaint pursuant to CPLR 3211 [a] [7], the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; Foley v. D’Agostino, 21 AD2d 60, 64-65 [1964]). In considering such a motion, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nonnon v. City of New York, 9 NY3d 825, 827 [2007], quoting Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (Sokol v. Leader, 74 AD3d 1180, 1180-81 [2d Dept 2010]; citing EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). However, “the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts.” (Robinson v. Robinson, 303 AD2d 234, 235 [1st Dept 2003]; see also Water St. Leasehold LLC v. Deloitte & Touche LLP, 19 AD3d 183 [1st Dept 2005], lv denied 6 NY3d 706 [2006].) Defendants have made a motion to dismiss the complaint pursuant to CPLR 3211. Defendants argues that the requisite standing to maintain this action is absent. The motion states that plaintiff, based on the allegations pleaded in the complaint, has failed to demonstrate standing. That because they have not arrived to a final outcome, the case must be dismissed because the alleged injury is unduly speculative. The City maintains that the administrative action (the disciplinary charges) is not final, is still pending, have not caused plaintiff any immediate damages and therefore the injury alleged is not “ripe” for judicial determination. Defendants reason that plaintiff does not have standing to challenge the decision to bring disciplinary proceedings against him because he has not suffered any harm. There has been no permanent or final disciplinary action taken. Standing Standing is threshold issue and a litigant must establish standing in order to seek judicial review (Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 769, 570 NYS2d 778, 573 NE2d 1034 [1991]). The burden of establishing standing is on the party seeking review (Doe v. Novello, 193 Misc 2d 457, 459 [Sup Ct 2002]). Standing requires that a litigant must have an injury in fact, something truly at stake in a genuine controversy (Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 812 [2003]). This ensures that the party seeking review has some concrete interest in prosecuting the action capable of judicial resolution. To establish injury in fact a plaintiff must show that they will actually be harmed by the challenged administrative action (Bloomfield v. Cannavo, 39 Misc 3d 1216(A) [Sup Ct 2013], affd, 123 AD3d 603 [1st Dept 2014]). As the term “injury in fact” implies, “the injury must be more than conjectural” (New York State Assn. of Nurse Anesthetists v. Novello, 2 NY3d 207, 211 [2004]). The “injury in fact” requirement is closely aligned with the court’s policy not to render advisory opinions (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 769 [1991]). “To this essential principle of standing, the courts have added rules of self-restraint, or prudential limitations including: a ban on adjudication of generalized grievances more appropriately addressed by the representative branches; and the requirement that the interest or injury asserted fall within the zone of interests protected by the statute invoked” (Id.) The “injury in fact necessary for standing where a plaintiff challenges a policy or procedure that has been directly applied to the plaintiff or directly affects his or her rights. In contrast, the courts have not found “injury in fact” where the harm to the plaintiff from application of the policy was speculative” (Bloomfield, 39 Misc 3d 1216(A). Here, plaintiff has not suffered an injury in fact. Defendant has solely served plaintiff with disciplinary charges. The charges give him notice of the claims against him, and the facts they are based upon, in this instance allegations of misconduct in 2017 and the procedure that followed. Plaintiff may answer those charges and defend against those charges with legal representation (Civil Service Law §75). Plaintiff asserts that he has served his penalty for the alleged charges (penalized four (4) days of annual leave) but doesn’t argue that this defense is not available to him during the disciplinary process. Plaintiff also cites to the 2019 settlement agreement that disposed plaintiff’s prior Article 78 proceeding. The agreement makes no mention of the excessive force claims nor does it reference disciplinary charges. Notably, in his complaint plaintiff states that Article 78 petition was grounded on a violation of Civil Service Law §75. Plaintiff as petitioner claimed he was no longer probationary and had achieved permanent status and was entitled to a disciplinary hearing (Verified Complaint, p. 5, para. “Seventeenth”) prior to his termination. The termination letter in that case specifically stated that plaintiff’s “service as a Probationary Correction Officer” was terminated. That matter did not address the disciplinary charges at issue here. Plaintiff has failed to state an injury-in-fact. Conclusion Accordingly, defendant motion to dismiss is granted. Plaintiff’s cross motion is denied as moot. Plaintiff’s claims against the City are dismissed without prejudice. The Clerk is ordered to enter judgement accordingly. The foregoing constitutes the decision and order of this Court. Dated: April 23, 2020
