Category Archives: city of new york

Does a non-profit advocating for animal rights have standing to sue New York for violation of animal rights laws?

In 2009, Judge Shafer of the Supreme Court, New York County ruled in favor of the non-profit corporation, Stray from the Heart, Inc. (“Stray”), in its Article 78 application – an action brought to challenge the activities of an administrative agency in court – to compel the City of New York to comply with the statutory requirement that it provide full service animal shelters in all five boroughs of New York City.  Matter of Stray from the Heart, Inc. v. Department of Health & Mental Hygiene of the City of New York, 2009 N.Y. Slip Op. 52092(U), 25 Misc.3d 1214(A).

In 2000, New York City’s Committee on Health determined that the overpopulation of stray dogs posed a serious threat to the public’s health, safety and welfare.  As a result, the City passed Local Law 26 of 2000, the Animal Shelters and Sterilization Act (the “Act”) and incorporated it into New York City’s Administrative Code at §§17-801 through 17-809.  The Act required the City to ensure that a “full-service animal shelter” be maintained in each of the five New York City boroughs, twenty-four hours per day, seven days per week.  The Act defined “full-service animal shelter” as “a facility … that houses lost, stray or homeless animals and (1) accepts dogs and cats [24 hours per day, 7 days per week]; (2) has an adoption program open [24 hours a day, 7 days per week]; and (3) provides sterilization services for dogs and cats.”  See §§17-802(c); 17-809.  The Act also required that all animals be sterilized before leaving the shelter, except in certain specified situations.

The City was required to be in full compliance with the Act by January, 2005.  When the statutory deadline passed, the City still had no shelters that were open twenty-four hours per day and there were no shelters at all within the Bronx or Queens.

Stray is a non-profit volunteer organization that rescues, rehabilitates and places homeless dogs.  Stray, as the Petitioner, sued the City of New York alleging that the City’s failure to comply with the Act “created a dangerous public health threat and overburdens citizens and private rescue organizations, such as the petitioner, which are forced to bear costs of rescuing, sheltering, treating and sterilizing unwanted animals.  Petitioner seeks restitution to recover its expenses.”  Id. at *1.

The court held that Stray had standing to bring the action to compel the City to comply with the Act.  An Article 78 proceeding was the appropriate means for Stray to seek to compel the City to perform a statutory duty that is ministerial in nature and does not require the exercise of judgment or discretion by a City officer.  Stray’s standing was based upon the ground that it provided services to homeless animals which the City failed to provide as required by the Act.

The court held that the City, “blatantly failed to comply with the mandatory requirements of the Act, which unambiguously requires shelters in each borough, not in 3 out of 5, open 24 hours per day, not 12 or ‘as needed.’  While it is true that the creation of a shelter involves discretionary decision-making, the process by which an imposed duty is implemented is irrelevant.”  Id. at *2.

The court continued, “[C]ompliance with almost any statutory directive will involve some measure of discretion exercised by those implementing its terms, but this will not render nonjusticiable a claim which asks the courts to compel compliance with a statute that is otherwise mandatory on its face.”  Id.  In other words, courts may “compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so.”  Id.

The court granted Stray’s Petition and directed the City of New York to “submit a plan for the immediate implementation of their compliance with the statutory directives of the Animal Shelters and Sterilization Act, Local Law 26 of 2000 within 60 days.”  Id. at *3.  The court also awarded Stray its costs for providing the services the City failed to provide as incidental damages – reasonable expenses incurred by one party as a result of another party’s failure to do what they were supposed to do – and referred the case to a Special Referee for calculation of those incidental damages.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Does the anti-retaliation provision of New York City’s Human Rights Law protect employees who suffer retaliation for opposing discrimination against other employees?

On March 31, 2011, the New York Court of Appeals upheld a jury’s verdict in favor of two New York City police officers that claimed they were subject to retaliation for opposing discrimination against a third officer on the basis of that third officer’s perceived sexual orientation.  Albunio v. City of New York, 2011 WL 1157706 (2011).

In 2002, Captain Lori Albunio was the commanding officer of the Youth Services section of the New York City Police Department.  Lieutenant Thomas Connors was operations coordinator of the section and reported to Albunio.  Sergeant Robert Sorrenti applied for a transfer into the Youth Services section, was interviewed by Albunio and seemed poised to become the Youth Services section DARE officer, responsible for educating New York City school children about the dangers of drugs.  Albunio recommended Sorrenti for the DARE position to her supervisor, Inspector James Hall.  Hall decided to interview Sorrenti himself and did so with Albunio present.

According to Albunio, during that interview Hall aggressively questioned Sorrenti about his marital status; whether he had children; and about his relationship with another male officer to whom he had allegedly loaned money, suggesting that the relationship was more than a friendship.  After the interview, Hall told Albunio that Sorrenti didn’t seem quite right.  Hall later chose another officer for the DARE position and told Albunio that he would not trust Sorrenti working around children.

Several months later, Hall told Lieutenant Connors that there had to be something more to Sorrenti’s relationship with the officer to whom he loaned money and that Hall would not have been able to sleep at night if he knew Sorrenti was working with children.  Connors responded that he believed Sorrenti was more than qualified to work with children and showed Hall a favorable performance evaluation that Sorrenti recently received.  Following that conversation, Connors formed the opinion that Hall “believed that Sergeant Sorrenti was a child molester and homosexual.”  Id. at *2.

Later in 2002, Albunio learned that she was to be removed as the commanding officer of the Youth Services section for utilizing poor judgment when requesting personnel.  Hall cited her recommendation of Sorrenti as the prime example.  Albunio told Hall that Sorrenti was the better candidate for the DARE position and that she would recommend Sorrenti again if she had the chance to do it over.  Albunio was told it would be in her best interest to find another assignment.  She did, but it was a much less desirable assignment.

After Albunio told Connors that she was directed to find another assignment, Connors filed a complaint with the police department’s Office of Equal Employment Opportunity alleging that Hall discriminated against Sorrenti based upon Sorrenti’s sexual orientation.  After Hall learned of the complaint, Connors decided it was time to leave the Youth Services section.  However, while Connors remained with that section he was subject to several adverse employment actions.  For example, his geographical assignments and working hours were changed in unfavorable ways; and he was shunned and excluded from meetings with Hall and Hall’s subordinates.  When he was finally transferred, he received a less desirable assignment than he expected.

Albunio and Connors filed a lawsuit against the City of New York claiming they were victims of retaliation in violation of the New York City Human Rights Law, Administrative Code §8-107(7).  That section states,

“Retaliation. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment, housing, or a public accommodation, provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.”

New York City Administrative Code §8-107(7).

A trial was held and the jury found that the City retaliated against both Albunio and Connors and awarded each monetary damages.  The City appealed the jury’s verdict to the Appellate Division, which upheld the verdict in favor of Albunio and Connors.  The City appealed that decision to the New York Court of Appeals, the state’s highest appellate court.

The Court of Appeals noted that the issue was whether the record supported the jury’s finding that Albunio and Connors “opposed” the discrimination against Sorrenti based upon his sexual orientation.  The court was guided by New York’s Local Civil Rights Restoration Act of 2005 (“LCRRA”), which requires that “the provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.”  Id. at *4.  In other words, the court was required to construe Administrative Code §8-107(7) “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.  We interpret the word ‘opposed’ according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.”  Id. at *4.

According to the court, Connors clearly opposed the discrimination since he filed a discrimination complaint on Sorrenti’s behalf; there was evidence Hall knew of the complaint; and after filing the complaint Connors was subjected to a series of adverse employment actions.  The court similarly found that Albunio “opposed” the discrimination although she did not file a formal complaint.  Albunio “opposed” the discrimination against Sorrenti when she stated that Sorrenti was the better candidate and that she would choose him again if given another chance.  In essence, the court held that the jury could have found that Albunio made her disapproval of Hall’s action clear and voiced her opinion that it was wrong when she made those statements to Hall.

The Court of Appeals affirmed the decision of the Appellate Division and reinstated the jury’s verdict in favor of Albunio and Connors.

Download Albunio v. City of New York, 2011 WL 1157706 (2011)

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC