|Claimant short name:||BUSSA|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the City University of New York.|
|Judge:||ALAN C. MARIN|
|Claimant's attorney:||Antonino Bussa, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Robert J. Schwerdt, AAG
|Third-party defendant's attorney:|
|Signature date:||December 16, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Antonino Bussa on the ground that it fails to state a cause of action. In his claim, Mr. Bussa, who was a student at the College of Staten Island, alleges that the college discriminated against him because of a disability, cerebral palsy.
The claim arises from events that allegedly occurred while claimant was taking two English courses at the college in the fall 2004 semester. He asserts that in a course taught by Professor Frank Battaglia, he was "not treated equal[ly] in the grading process" and was "not given the same privileges" as other students, e.g., he alleges that other students were given the opportunity to rewrite their final papers, but he was not. He also asserts that in a course taught by Professor Ellen Goldner, he was accused by her of plagiarizing course papers, given a failing grade and was told by her, "that [he] was not able to do graduate work because of [his] disability." As to the plagiarism charge, Professor Goldner completed a "Faculty Report Form For Incidents of Academic Dishonesty," dated August 30, 2005 (defendant's exhibit C). Claimant characterizes the aforementioned treatment as a "pattern of discrimination and maltreatment."
On March 9, 2006, the Grade Appeal Committee of the Department of English heard claimant's appeals concerning the two English courses, and rejected them (see defendant's exhibit D).
On April 5, 2006, Mr. Bussa filed a complaint with the New York State Division of Human Rights, charging the college with unlawful discriminatory practices in violation of New York Executive Law, Article 15 ( Human Rights Law). After an investigation, the Division found probable cause existed to believe that the City University had engaged in unlawful discriminatory practices. A hearing was scheduled for October 27, 2008, but Mr. Bussa was unwilling to attend the hearing because it was open to the public. By Order dated December 10, 2008, the complaint was dismissed because of claimant's refusal to attend, on the grounds of administrative convenience (see defendant's exhibit E, Recommended Order of Dismissal, Marlow, ALJ).
Claimant went on to complete his graduate studies at the college, and on August 31, 2008, he received a Master of Science degree from the College of Staten Island (see defendant's exhibit B).
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the Court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord claimant the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. See Leon v Martinez, 84 NY2d 83, 87 (1994) and Schenkman v New York Coll. of Health Professionals, 29 AD3d 671 (2d Dept 2006).
Though not specifically pleaded, claimant's allegations would arise under New York State Executive Law, Article 15 (Human Rights Law). Specifically, Executive Law §296.4 provides in relevant part that, "[i]t shall be an unlawful discriminatory practice for an education corporation or association . . . to deny the use of its facilities to any person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status
. . ."
In addition, Executive Law §297.9 provides in relevant part that, "[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience . . . such person shall maintain all rights to bring suit as if no complaint had been filed with the division."
As to this statutory procedure, the Court of Appeals has stated that, "[g]enerally, the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive. An exception is provided when a complaint is dismissed for administrative convenience: a suit may be brought as if a complaint had never been filed." Matter of Pan Amer. World Airways v New York State Human Rights Appeal, 61 NY2d 542, 548 (1984) (internal citations omitted). Defendant has not argued otherwise here.
New York State disability discrimination claims are governed by the same legal standards as federal ADA and Rehabilitation Act claims. See Camarillo v Carrols Corp., 518 F3d 153, 158 (2d Cir 2008) and Rodal v Anesthesia Group of Onondaga, P.C., 369 F3d 113, 117 n 1 (2d Cir 2004). To establish such a violation, claimant must prove: "(1) that he is a 'qualified individual' with a disability; (2) that he was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability." Hargrave v Vermont, 340 F3d 27, 34-35 (2d Cir 2003).
Though not articulated by claimant, Mr. Bussa in essence alleges that he was a qualified individual who was discriminated against by CUNY because of his disability, when it wrongfully prohibited him from engaging in certain activities in one course and wrongfully accused him of plagiarism in another course. While defendant may well establish at a later point that its actions were the result of neutral and nondiscriminatory criteria, at this stage of the proceedings, claimant has adequately alleged a cause of action under the Human Rights Law.
Accordingly, having reviewed the submissions(2)
, IT IS ORDERED that defendant's motion to dismiss the claim of Antonino Bussa is denied.
December 16, 2009
New York, New York
ALAN C. MARIN
Judge of the Court of Claims
2. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through E; and claimant's Letter dated June 19, 2009.