| Brathwaite v Frankel |
| 2012 NY Slip Op 06000 |
| Decided on August 21, 2012 |
| 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 August 21, 2012
Saxe, J.P., Friedman, Catterson, Freedman, Manzanet-Daniels, JJ.
6741 105174/11
[*1]Karen Brathwaite, et al., Plaintiffs-Appellants,
v
David F. Frankel, etc., et al., Defendants-Respondents.
v
David F. Frankel, etc., et al., Defendants-Respondents.
Brown & Gropper, LLP, New York (James A. Brown of
counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Susan
Paulson of counsel), for respondents.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered August 16, 2011, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
The court erred by treating defendants' motion made pursuant to CPLR 3211(a)(7) and (10) as a motion for summary judgment without providing the parties with notice, as required by CPLR 3211(c) (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). While defendants' notice of motion sought, as alternative relief, summary judgment pursuant to CPLR 3211(c), plaintiffs never indicated that they joined defendants in "deliberately charting a summary judgment course" (id. [internal quotation marks omitted]), nor does the case involve a purely legal question without any disputed issues of fact (see Wiesen v New York Univ., 304 AD2d 459, 460 [2003]).
Treating the motion as one for dismissal pursuant to CPLR 3211(a)(7), we conclude that it should have been denied. Construing the complaint liberally and drawing all reasonable inferences in favor of the pleaders (see e.g. Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we find that plaintiffs have made allegations that, if true, would carry their "de minimis burden" (Exxon Shipping Co. v New York State Div. of Human Rights, 303 AD2d 241, 241 [2003], lv denied 100 NY2d 505 [2003]) of establishing a prima facie case of discrimination in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.). Plaintiffs have alleged that they are members of a protected class (the disabled), that they were qualified for their positions, that they suffered an adverse employment action (being laid off), and that the adverse action occurred under circumstances giving rise to an inference of discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). The inference of discrimination arises from the complaint's allegations that plaintiffs, who performed clerical work, were laid off as a result of the elimination of their job title, under which all the employees were disabled, while other job titles involving clerical work were not eliminated. After issue has been joined and discovery has been completed, defendants will have an opportunity to attempt to rebut the presumption of discrimination arising from plaintiffs' prima facie case by "setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support [their] employment decision" (Forrest, 3 NY3d at 305), to which plaintiffs will be [*2]entitled to respond in turn. On defendants' motion addressed to the sufficiency of the pleading, however, the only question properly before the court was whether plaintiffs have alleged a prima facie case.
We note that the motion court did not rest its decision on the branch of defendants' motion seeking dismissal based on "the absence of a person who should be a party" (CPLR 3211[a][10]), and, on appeal, defendants have not argued that the dismissal should be affirmed on that ground.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 21, 2012
CLERK
The Manhattan Democratic Judge Selection Club
Thanks to Mr. Frank Lombardi of the Daily News, we have a peek inside
the corruption of the Courts by the Manhattan Democratic Clubhouse.
In January 2007 I started working for Hank Sheinkopf
in order to find out more on the controlled process of approving judges
for the NYC Courts (he ran the campaign of NYC Surrogate Renee Roth,
Nora Anderson, etc., all named in my case filed in District Court, Without a Prayer For Relief and RICO, and he told me that he would get Ray kelly to arrest
me if I told anyone about what I knew). More about that in my book. The
point I want to make here is that the courts are under the supervision
of a relatively small group of political lobbyists who make sure that
their "interests" are protected by the judges whom they approve. As can
be seen in the following article, Death of the Duopoly,
the Democratic Clubmembers may not be in sync right now with public
sentiment. Of course, this is of no concern to them, but maybe we, the
public, should be outraged, and obtain the help of our Attorney General....if he is interested.
BTW, Lombardi is incorrect about Geoffrey Wright - he is a Judge in New York State Supreme Court Manhattan, 80 Center Street, City Part (working for the City of New York).
Betsy Combier
 |
| Erika McDaniel Edwards, esq. |
Are these two Harlem lawyers now Civil Court judges-in-making?
BY Frank Lombardi, DAILY NEWS UPTOWN COLUMNIST, Thursday, June 23rd 2011, 4:00 AM
LINK
Civil Court judges are supposedly elected, but more accurately they're usually "made" by political clubhouse leaders and loyalists.
Two lawyers from Harlem are on the fast track to being elected Civil Court judges later this year because they've been endorsed by various Democratic district leaders and county chairman, Harlem Assemblyman Keith Wright.
The two judges-in-making are Erika McDaniel Edwards, a civil and criminal attorney seeking a vacant countywide Civil Court seat, and W. FrancPerry 3rd, (see also Community Board 10) a court attorney for Judge Peter Moulton, the supervising judge of Manhattan Civil Court, who is running for the District 5 seat on the upper West Side.
Both were approved by screening panels used by Manhattan Democrats, which include representatives of bar groups and nonprofit organizations.
Manhattan Democrats, in fairness, do try to endorse qualified candidates and place emphasis on diversity. For Wright, who is African-American, Perry and Edwards are the first African-American judicial prospects he's helped through the politically charged process since he became county leader in September 2009.
Wright's brother, Geoffrey, is a state Supreme Court justice in the Bronx, and their father was the late Bruce Wright, a judge who served in both the Criminal Court and state Supreme Court.
Edwards' recent clients have included financier James Nicholson, who pled guilty in 2009 to a $140 million Ponzi scheme and is serving a 40-year prison sentence.
She was an assistant Manhattan district attorney before launching her own law firm in 1998 from a Harlem brownstone, and is now a partner with Donaldson, Chilliest & McDaniel.
Perry is on leave as chairman of Community Board 10 (Central Harlem). He is also a minister in the Metropolitan Community Church, a Protestant denomination.
"Occasionally I perform a wedding, or preach somewhere," he noted.
If elected, he said he would give up his community board post and his occasional ministry.
"We all bring a lot of different things to the bench," he noted of his decision to take a sabbatical from the law in 2001 to get a master of divinity degree from Union Theological Seminary.
Perry, who is gay, said he and his partner have two adopted children, and "the skills going into being a good parent" will give him "a greater perspective than anything else" if he becomes a judge.
Potential challengers still have until July 14 to file qualifying petitions to force a primary contest Sept. 13. But there's no indication that will happen, so they're expected to be unopposed on the Nov. 8 ballot.
Judges of the Civil Court - known as the "People's Court" - handle civil cases involving up to $25,000. They're elected for 10-year terms, at a salary of $125,600, which hasn't been raised since 1999.
Competitive races for judgeships are rare, in Manhattan as well as elsewhere in the city, because it's so difficult for hopefuls without clubhouse backing to collect the thousands of voter signatures needed to qualify for the ballot, and because it costs a bundle to wage an insurgent campaign.
Only one contested Civil Court race is shaping up this year in Manhattan, for a vacancy from District 3 (Chelsea). The two contenders gathering signatures to force a primary duel are Tony Cannataro, who has the endorsement of every club in the district and a bevy of Manhattan elected officials, and Housing Court Judge Sabrina Kraus.
The cost of waging a Civil Court race in Manhattan can range from $100,000 for a district level contest to $200,000 for a countywide race, according to James McManus, the longtime district leader from Hell's Kitchen (now tamely called Chelsea).
Three years ago, the last contested Civil Court race for a Manhattan countywide seat ended up costing its two contenders a combined $227,387, according to spending reports.
An insurgent, Nancy Bannon, won that year over her clubhouse-endorsed rival, Michael Katz, although he outspent her 2-to-1. So beating the clubhouse gang isn't entirely impossible, just improbable.
flombardi@nydailynews.com
Uptown politics: Harlem Assemblyman Keith Wright sits in judgment on racial balance of judges
BY FRANK LOMBARDI, DAILY NEWS STAFF WRITER, Thursday, February 17, 2011
LINK
Harlem Assemblyman Keith Wright has "made" more than a dozen judges since becoming the Manhattan Democratic chairman 17 months ago.
But none of the new judges is African-American.
"We've chosen judges who are gay, Asian judges. We even have a Dominican judge - but we haven't done any black judge yet," said Wright.
It's not that he's unsympathetic to the need for diversity among New York judges. As of the latest count by the state court system, of 1,166 sitting full-time judges, 947 are white (81%); 121 are black (10%); 67 are Hispanic (6%) and 20 are Asian (2%).
Manhattan Democrats head Keith Wright describes judge-picking procedure.
Uptown politics: Harlem Assemblyman Keith Wright sits in judgment on racial balance of judges
BY FRANK LOMBARDI, DAILY NEWS STAFF WRITER, Thursday, February 17, 2011
LINK
Harlem Assemblyman Keith Wright has "made" more than a dozen judges since becoming the Manhattan Democratic chairman 17 months ago.
But none of the new judges is African-American.
"We've chosen judges who are gay, Asian judges. We even have a Dominican judge - but we haven't done any black judge yet," said Wright.
It's not that he's unsympathetic to the need for diversity among New York judges. As of the latest count by the state court system, of 1,166 sitting full-time judges, 947 are white (81%); 121 are black (10%); 67 are Hispanic (6%) and 20 are Asian (2%).
"It's just the way it turned out," said Wright. "But you know what? You can look at me and tell that will probably change at one point."
Wright, 56, who is African-American, is the son of the late Bruce Wright, a controversial city judge who was denounced by critics in his day as "Turn 'Em Loose Bruce" because of his low-bail policies.
As his son tells it, Bruce Wright might never have become a Manhattan judge - or remained one for 25 years - if the Harlem political powers back then had not gone to bat for him.
His father was named to the Criminal Court in 1970 by then-Mayor John Lindsay. But it was Harlem's own Percy Sutton who engineered the appointment, Keith Wright said. Sutton, who died in 2009 at age 89, was Manhattan borough president from 1966-77 and a longtime Harlem political power.
"My father was Percy's lawyer," a smiling Wright said in explaining how his rebel-lawyer father became a judge.
And, he continued, it was thanks to his predecessor as county leader, Assemblyman Herman (Denny) Farrell, that Bruce Wright was nominated to the state Supreme Court in 1978, when then-Mayor Ed Koch didn't renew his Criminal Court judgeship. Judge Wright retired in 1994 and died in 2005 at age 86.
Several well-placed Manhattan Democrats said Keith Wright ran into party resistance last year when he pushed for a black judicial nominee.
Other factions of the notoriously splintered Manhattan Democratic Party argued that "plenty" of black judges had been named during Farrell's 28-year party reign and forced Wright to bide his time.
Making Civil Court and Supreme Court judges is one of the few remaining powers of the city's Democratic bosses. Even the U.S. Supreme Court upheld that boss-ruled process in 2008.
But while Wright is a linear descendent of the bosses of the old Tammany Hall machine, he has inherited a largely rusted, powerless antique.
"I wouldn't say that at all," Wright said. "I think we do [have clout] and it's growing. That's why we still have candidates [for all offices] rushing to us, looking for our endorsement."
As for naming judges, he added, Manhattan has a more progressive and fair screening and nominating process than the other boroughs.
"We take recommendations [of the panels] as if they were coming down from the Sermon on the Mount," Wright said.
That may be, but anyone who doesn't get nominated by the party structure still has no prayer of forcing a party primary and getting elected, given the prevailing rules.
It helps to have a Percy Sutton plugging for you, or a Keith Wright, as we might see this year.
flombardi@nydailynews.com
