|Claimant short name:||CABRERA|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MELVIN L. SCHWEITZER|
|Claimant's attorney:||PENA & KAHN, PLLC
By: Diane Welch Bando, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Cheryl M. Rameau, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 29, 2010|
|See also (multicaptioned case)|
On graduation day, June 1, 2006, claimant, a security guard employed by a company retained by City University of New York ("CUNY"), working at the City College of New York ("CCNY") campus at 138th Street and Convent Avenue, was assaulted by a custodian employed by CUNY. Claimant sues CUNY alleging defendant is liable for the custodian's assault under respondeat superior and negligent hiring and supervision theories. At the completion of discovery and after a Note of Issue has been filed, defendant moves for summary judgment on the basis that, as a matter of law, defendant cannot be liable under either theory.(1) Approximately a year and a half before he applied for a job at CCNY, the custodian, Maurice Pierre Blackman, was convicted of assault and given a sentence of three years probation. Defendant knew this when it hired Mr. Blackman. Claimant was assaulted by Mr. Blackman four years after he was hired. The Court of Appeals has recognized that balancing public safety against the State's public policy in favor of rehabilitation of former felons poses "a modern-day dilemma." See Haddock v City of New York, 75 NY2d 478, 480 (1990).(2)
The court concludes there is no genuine issue of material fact as to whether defendant got the balance right here, and the court finds that defendant did so in these circumstances and thus grants defendant's motion.
In support of its motion defendant submits an attorney's affirmation to which it attaches the deposition transcripts of claimant and various former and current CCNY and CUNY employees. Claimant does not dispute defendant's statement of the facts except as to several points noted below. The court first summarizes the facts from the undisputed paragraphs of defendant's affirmation (Affirmation in Support, dated January 19, 2010 ("Supporting Affirmation"), ¶¶ 1-26), and then addresses claimant's points of departure.
At the time of the incident, claimant was working for Burns Security as a security guard at the CCNY campus at 138th Street and Convent Avenue in northern Manhattan. For five or six months claimant had observed Mr. Blackman working as a custodian at the campus. Claimant testified in his deposition that as a security guard he was required to check the identification of all campus staff as they entered the buildings assigned to him, but Mr. Blackman would run by claimant's post without showing his identification. According to claimant, this happened on approximately seven occasions between January 2006 and May 2006. On one such occasion claimant spoke to Mr. Blackman about the identification procedure, and Mr. Blackman cursed at claimant. Claimant never informed Mr. Blackman's supervisor or any other CUNY employee about Mr. Blackman's conduct, and did not file a complaint with respect to Mr. Blackman prior to the incident in issue. Claimant adds that although Mr. Blackman cursed at claimant, he never hit or threatened him prior to the incident. Id., ¶¶ 6-8.
At approximately 12:15 p.m. on June 1, 2006, claimant was on duty in the Aronow Theater located in the NAC Building when he saw Mr. Blackman on the exterior of the building trying to enter through a side door not designated as an entrance. Id., ¶ 9. Mr. Blackman knocked on the door and signaled to claimant to open it, but claimant refused, signaling to Mr. Blackman to go around to the main entrance of the building. Id. Nevertheless, Mr. Blackman then entered the building through the side door when someone exited through the door. As soon as he entered the building, Mr. Blackman cursed at claimant in a loud voice, pointed his finger at him, and approached him. Claimant told Mr. Blackman he was trespassing and that he had to go outside. As Mr. Blackman continued cursing and when he approached him, claimant extended his hands to keep Mr. Blackman from moving forward and told Mr. Blackman he didn't have time for him. Claimant then turned to walk away, and at this point, Mr. Blackman struck claimant in the face with his fist. Id., ¶ 10. Claimant suffered a broken jaw, a broken tooth and other injuries. Claimant testified that after the incident his supervisors informed him they had received two complaints about Mr. Blackman; claimant did not know if the supposed complaints involved assault. Id., ¶ 11. Claimant admitted, however, that he knew of no prior incidents where Mr. Blackman had assaulted anyone else on the CCNY campus. Id.
Mr. Blackman's supervisor, Sieulagie Lutchman-Singh, a Senior Custodial Supervisor at CCNY with 17 years experience as a supervisor, was deposed. She testified that she was not responsible for hiring Mr. Blackman as that decision was made by the CCNY Human Resources Department ("CCNYHR"). She said, however, that when she supervised Mr. Blackman she observed he worked well with others. Ms. Lutchman-Singh never saw Mr. Blackman arguing or fighting with other employees and never observed him intoxicated or under the influence of drugs. Id., ¶¶ 12-13. Ms. Lutchman-Singh did say that Mr. Blackman had been given a written warning and was suspended for two days without pay for being away from his assigned post. Id., ¶ 14. She learned of the assault on claimant when she came to work on June 1, 2006. She said Mr. Blackman's shift on the day of the assault began at 2 p.m., and she did not know what he was doing at the CCNY campus prior to the commencement of his shift. Id., ¶ 15.(3)
Ernestina Haynes-Day, the former Acting Director of Human Resources for CCNY during the period when Mr. Blackman was hired, was deposed. She also said she did not hire Mr. Blackman and testified only with respect to CUNY's hiring procedures generally. Id., ¶ 16. Ms. Haynes-Day testified that CUNY is an equal opportunity employer and that, by law, an applicant cannot be denied a position due to a criminal conviction. If an applicant with a criminal record fails to indicate the conviction on his or her application, however, he or she can be fired for falsification. Id., ¶ 17. Ms. Haynes-Day explained that the CUNY hiring process also includes fingerprinting an applicant, conducting a criminal background check, and interviewing each applicant before an offer of employment is made (Id., ¶ 18). CCNY has discretion as to where to place an applicant with a criminal conviction. She explained, for example, that a person who had a criminal background in thievery would not be placed in the bursar's office. Id., ¶ 19.
Ms. Helene Lund, a former Associate Director for Civil Service at CUNY's central office ("CUNY/Central"), was deposed. She testified she worked for CUNY for 37 years before retiring in 2007, and was in charge of the hiring pools and of sending the list of prospective hirees to the individual colleges from which they would fill their hiring needs. Ms. Lund also testified as to CUNY's general procedures for hiring, including how background checks of applicants are conducted. Ms. Lund stated that an applicant could be denied employment and terminated if he or she falsified his or her criminal record on the employment application. Id., ¶ 20. Ms. Lund said CUNY did not deny employment to an applicant who had a criminal record. CUNY did, however, take the criminal background into consideration when determining where to place the employee: "Because if the conviction was not in the field of the position where they were hiring the person they would give the person a chance most likely." Id., ¶ 21, Ex. G, pp 21-22. She explained that someone with a conviction for robbery would not be placed in accounting. CUNY/Central could override the decision of a particular CUNY college if it determined that the college wanted to terminate an employee whose criminal record had nothing to do with the department where the person actually worked. Id., ¶¶ 21-22.
Mr. Blackman's personnel file and employment application were produced in discovery and are attached as Exs. H and I, respectively, to the Supporting Affirmation. The personnel file shows that Mr. Blackman was hired on May 16, 2002 as a CUNY provisional custodial assistant at CCNY, and he became a permanent employee three years later, on May 16, 2005. On August 22, 2005 Mr. Blackman received a written warning about his excessive sick leave; on January 18, 2006, he was suspended for two days without pay for abandonment of post; and on May 17, 2006 he was given a verbal and written warning for being away from his assigned post. Id., ¶ 24, Ex. H.(4)
The copy of Mr. Blackman's employment application and the CUNY conviction notice and license registration form (Ex. I), shows Mr. Blackman revealed, inter alia, that he had pled guilty in December 2000 to possession of an illegal substance and was sentenced to community service and one week's incarceration, and that he also had pled guilty to assault in January 2001 and was given youth offender status and placed on probation for three years. Id., ¶ 25.(5)
Finally, defendant submits copies of three New York City Criminal Court Certificates of Disposition. Id., ¶ 26, Ex. J. The first one, dated January 9, 2002, contains the following entries: December 13, 2000, Mr. Blackman "pled guilty PG 120:00"; and on January 24, 2001 "Youth Offender Status Granted." The second Certificate of Disposition, dated February 15, 2002 contains the following entries: January 27, 2001 "Pled Guilty & Sentence Imposed VOCD 240:20"; and on June 27, 2001 "Resentenced Conditional Discharge - 1Y Community Service." The third Certificate of Disposition, dated March 1, 2002 contains the following: Arraignment Charges: 220.39; 220.16; 220.44; on June 14, 2001, "Dismissed - Motion of DA." Defendant contends the Certificates of Disposition are evidence that the result of CUNY's criminal check showed Mr. Blackman "accurately reported his criminal background when he filled out his employment application." Supporting Affirmation, ¶ 26.
Claimant contends that while he does not disagree with defendant's recital of the facts as summarized above, the facts as recited are "materially incomplete." Affirmation in Opposition, dated February 16, 2010 ("Opposition Affirmation"), ¶ 4. Claimant adds to the facts provided by defendant as described below.
Mr. Blackman fled after he hit claimant and saw that claimant was bleeding; and, subsequently, he was arrested and pled guilty to the assault. Opposition Affirmation, ¶ 10. Claimant submits a copy of a report prepared by Edward D. Diaz, Director of Public Safety & Security at CCNY. Id., Ex. 9, which is consistent with claimant's deposition testimony regarding the incident. Claimant also notes that Ms. Lutchman-Singh, Mr. Blackman's supervisor, never prepared an evaluation on Mr. Blackman while he worked at CUNY, nor did she see one prepared by anyone else. Id., ¶ 18. Claimant also notes that, according to the testimony of Ms. Haynes-Day, CCNYHR itself did not have the discretion to hire Mr. Blackman, only to determine where he would be placed, because the hiring decision was made by CUNY/Central where Ms. Lund was in charge of hiring. Ms. Haynes-Day said it was her role only to "assemble" an application for "provisional hires" such as Mr. Blackman, and to send the application to CUNY/Central. Id., ¶¶ 21-23. Claimant further adds that Ms. Lund testified to very different hiring procedures between CUNY/Central and CCNYHR. If a new hire had a criminal record, CUNY/Central would notify CCNYHR of that fact, and then it was CCNYHR's responsibility, according to Ms. Lund, to decide whether to retain the provisional hiree. Id., ¶ 24. Ms. Lund said CUNY/Central would not look at a provisional hiree's entire file and only if he or she appealed a decision not to offer the applicant a job would they look at the seriousness of the criminal offenses committed by the prospective hiree. She said a criminal conviction would not be a bar to employment at CCNY or CUNY. She also said she never would consider the amount of time that elapsed between the commission of an offense and the date of prospective hiree's application; nor would she consider the relationship between the conviction and the job for which the hiree's was being hired, as that was left to CCNYHR. Id., ¶¶ 25-26, 28.
Claimant also submitted the deposition of Ms. Sabrina Ellis Brown, CCNY's current Director of Human Resources (Id., Ex. 5). She testified that there was no specific criteria or written rules regarding the placing of felons, and that not even a murder conviction would automatically disqualify an applicant for employment. Id., ¶ 29. Ms. Brown was unable to say if anyone at CUNY or CCNY discussed Mr. Blackman's application with the applicant. She also confirmed that Mr. Blackman's personnel record shows he received an "unsatisfactory" review but that such a review ordinarily would not trigger further investigations. It was up to CCNYHR to decide the basis for terminating an employee. Id., ¶¶ 33-37.
"Summary judgment is designed to expedite all civil cases by eliminating [the need for a trial of] claims which can properly be resolved as a matter of law. Since it deprives the litigant his day in court it is considered a drastic remedy." Andre v Pomeroy, 35 NY2d 361, 364 (1974). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgement in favor of any party." CPLR 3212(b). The motion "should not be granted where there is any doubt as to the existence of such issues or where the issue is 'arguable[.]' '[I]ssue-finding, rather than issue-determination, is the key to the procedure.'" Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (citation omitted). In deciding a summary judgment motion, the court views "the evidence in the light most favorable to . . ., the party opposing summary judgment, and [draws] all reasonable inferences in [that party's] favor." Rudner v New York Presbyterian Hosp., 42 AD3d 357, 359 (1st Dept 2007). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers." Winegrad v New York University Med. Ctr., 64 NY2d 851, 853 (1985).
Once the movant has made a prima facie showing, the party opposing the motion "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [it] rests [its] claim or must demonstrate acceptable excuse for [its] failure to meet the requirement." Zuckerman v City of New York, 49 NY2d 557, 562 (1980). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Id.
The court first addresses claimant's respondeat superior cause of action. Under the doctrine of respondeat superior, an employer can be held liable for the acts of an employee if the employee was acting within the scope of his employment. Riviello v Waldron, 47 NY2d 297 (1979); Judith M. v Sisters of Charity Hosp., 93 NY2d 932 (1999). The doctrine of respondeat superior may be applied "so long as the tortuous conduct is foreseeable and a natural incident of the employment." Judith M., 93 NY2d at 933. "If, however, an employee 'for purposes of his own departs from the line of duty so that for the time being his acts constitute an abandonment of his service, the master is not liable.'" Id. (citation omitted). Here, at the time Mr. Blackman assaulted claimant, he was not acting within the scope of his employment as an assistant custodian, a position that involved minimal contact with the public and did not involve any need for the use of physical force against any individual.(6) The court finds he departed from his duties as an assistant custodian "for solely personal motives unrelated to the furtherance of [the defendant's] business." See Bowman v State of New York, 10 AD3d 315, 316-17 (1st Dept 2004) (court officer not acting within scope of employment when he allegedly raped a private security guard at courthouse). Accordingly, claimant's cause of action against defendant under the doctrine of respondeat superior is dismissed.
Turning to the claim for negligent hiring and supervision, claimant alleges that defendant is liable for "negligent hiring, negligent training, failure to perform background investigation of its employees, negligent supervision of its employees, as well as through the doctrine of Respondeat Superior." Verified Claim ¶ 28. As to the negligent supervision aspect of the claim, the court finds no basis to conclude defendant negligently failed to supervise claimant. Mr. Blackman was employed at CCNY for four years, first as a probationary assistant custodian, and then as a permanent assistant custodian, without any evidence that he was aggressive or violent. Mr. Blackman's supervisor, Ms. Lutchman-Singh, testified she observed that Mr. Blackman appeared to get along well with fellow employees and she never saw him engaged in arguing or fighting with other employees. To the extent Mr. Blackman was found to be doing his job inadequately, it was due to his being absent or not at his assigned post when he should have been, not because of a perceived aggressiveness or violent behavior which might have made Mr. Blackman's assault on claimant foreseeable by defendant. Claimant argues defendant should have investigated Mr. Blackman's absences from his job or post, and inferentially asserts that had it done so, Mr. Blackman would have been removed from his job before he ultimately assaulted claimant on June 1, 2006. The court finds this assertion far too speculative to be a basis on which to deny summary judgment to the defendant on the wrongful supervision claim. Zuckerman v City of New York, 49 NY2d at 562 ("mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment).
Claimant's negligent hiring claim is premised on claimant's contention that defendant fails to show CCNYHR and CUNY/Central did a proper analysis of Mr. Blackman's background before allowing him to be placed as a custodial employee. Correction Law § 752 provides that no application for employment shall be denied by reason of an applicant's previous criminal conviction unless there is a direct relationship between the conviction and the employment sought. See generally Givens v New York City Hous. Auth., 249 AD2d 133 (1st Dept 1998), where the court, citing Correction Law §§ 752 and 753 and noting that public policy prohibits discrimination in hiring on the basis of a criminal record, affirmed the trial court's setting aside a jury verdict in favor of plaintiff for hiring a person convicted of robbery. In making a hiring determination under § 752 of the Correction Law, Correction Law § 753 requires that an employer consider the public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses, together with other factors, such as the specific duties related to the employment sought; the bearing, if any, the conviction will have on the applicant's fitness or ability to perform; the time elapsed since occurrence of the criminal offense; the age of the person at the time of the occurrence of the criminal offense; the seriousness of the offense; and the legitimate interest of the state in protecting property and the safety and welfare of specific individuals or the general public.
Claimant does not dispute the applicability of these Correction Law provisions with respect to the hiring of Mr. Blackman, but argues that defendant breached its own rules and regulations both when it initially hired Mr. Blackman and, thereafter, when it retained him, allegedly without ever having specifically addressed the Correction Law § 753 considerations when it made these hiring decisions. See Opposition Affirmation, ¶¶ 52-56. Citing Mon v City of New York, 78 NY2d 309 (1991), claimant argues defendant cannot avoid liability in hiring Mr. Blackman because there is no evidence here that defendant, in fact, exercised any discretion under the Correction Law at all. Opposition Affirmation, ¶ 53. Claimant's argument in this regard appears to be based solely on the absence of any evidence in this record as to who at CUNY/CCNY actually made the decision to hire Mr. Blackman.
The court rejects claimant's contention. Obviously, some person or persons on behalf of defendant had to have made the decision to provisionally hire Mr. Blackman for a job as a custodial assistant at CCNY for a lengthy three-year probationary period, after which, absent incident, he was able to retain his job permanently. Although no one at CCNY or CUNY has been able to identify the names of those who actually made these hiring decisions, this itself does not constitute proof that he was negligently hired. The record before the court includes the testimony of Mr. Blackman's supervisor, as well as of the Director of CCNY's Human Resources Department and of the former Associate Director for Civil Services at CUNY, all of whom established that defendant was fully cognizant of its legal obligations under Correction Laws §§ 752 and 753 with regard to any job applicant with a criminal record, and also that defendant made efforts to comply with them whenever it hired and placed an applicant with a prior conviction.(7) The court thus finds that what defendant did with Mr. Blackman in this case was an appropriate and reasonable placement of someone with his criminal record for assault, especially in that the documentary evidence shows Mr. Blackman was 17 years old when he was convicted and was given youth offender status a year and a half before he ever applied for a job at CCNY (Supporting Affirmation, Exs. I and J).
Claimant also takes issue with defendant's contention that the Certificates of Disposition (Ex. J) demonstrate that Mr. Blackman accurately reported his criminal background when he filled out his employment application (Ex. I). Claimant points to a "discrepancy" between the application and the Certificates and asserts that defendant failed to detect it and failed to inquire further of Mr. Blackman to evaluate the significance of this as it might have affected his application. Mr. Blackman had said on his application that he had been convicted of assault on one occasion and of drug possession on another occasion, yet none of the Certificates of Disposition indicates a conviction or even an arrest involving drug possession. Instead, Certificate No. 11435 indicates Mr. Blackman was charged with "theft of services" and "criminal trespass," and thereafter pled guilty to "disorderly conduct." (Opposition Affirmation ¶ 57).
Claimant argues (Opposition Affirmation, ¶ 63) that defendant's failure to detect this "discrepancy" thus presents a question of fact as to whether CCNY met its "heightened duty of vigilance" in hiring and retaining Mr. Blackman. But claimant does not explain how this discrepancy raises a material question of fact pertaining to the hiring and placing of Mr. Blackman. There is no dispute that Mr. Blackman correctly disclosed his conviction for assault on his employment application and that his assault conviction is identified in the Certificate of Disposition. Compare Exs. I and J to Supporting Affirmation. Claimant has not come forward with sufficient evidence that Mr. Blackman's other conviction for disorderly conduct (as opposed to the one he reported on his application for an ostensible drug offense) is somehow material to the claim that defendant's negligent hiring decision ultimately led to the assault he suffered. Even viewing the undetected discrepancy in the light most favorable to claimant, as the party who opposes the motion for summary judgment, and thus drawing all reasonable inferences in claimant's favor, the court does not see how Mr. Blackman's reference to a drug offense changes anything. Claimant has not come forward with any evidence that Mr. Blackman ever was charged with or convicted of a drug offense. Had this been the case, and had Mr. Blackman failed to disclose it on his employment application, this could have been grounds for his termination for falsifying a criminal record, according to Ms. Haynes-Day and Ms. Lund. But this is not what appears to have happened here. Mr. Blackman reported that he had been convicted of a drug charge when, in fact, he was convicted of the more amorphous, lesser charge of disorderly conduct. It may be that he knew or believed drugs somehow were related to the incident for which he was charged - two broader charges of trespass and theft of services - or even that he believed drugs were related to the lesser offense of disorderly conduct to which he ultimately plead guilty. But such a conviction arguably had less bearing on whether to hire and retain Mr. Blackman than would one involving drugs. In any event, without claimant's presentation of evidence that Mr. Blackman deliberately concealed a more serious conviction (as opposed to what appears to have been a mistake or confusion on his part) a material question of fact pertaining to the hiring and retention issues in this case is not presented. A Note of Issue already was filed here, so defendant's failure to pursue Mr. Blackman's reporting discrepancy and to demonstrate its relevance and seriousness in this context does not now present a genuine issue of material fact which, in the court's view, bears on the ultimate issues here. The court thus concludes that claimant has not countered defendant's prima facie showing that no material issues of fact are present here by having produced evidence sufficient to require a trial on the issue of whether defendant was negligent in hiring and retaining Mr. Blackman.(8) On the record before it, the court finds defendant is entitled to summary judgment that it was not negligent in the hiring or retention of Mr. Blackman. Givens v New York City Hous. Auth., 249 AD2d 133.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted.
March 29, 2010
New York, New York
MELVIN L. SCHWEITZER
Judge of the Court of Claims
1. In connection with this motion, the court has read and considered the Notice of Motion for Summary Judgment, dated January 19, 2010; Cheryl Rameau's Affirmation in Support, dated January 19, 2010, together with Exhibits; Affirmation in Opposition, dated February 16, 2010; and Cheryl Rameau's Reply Affirmation, dated March 2, 2010.
2. Haddock v City of New York is distinguishable from the case at bar. In Haddock, involving a claim that a City park employee had raped and assaulted the plaintiff at a park where he was working under a City Work Relief Employment Program, the court found defendant had failed to follow its own procedures requiring informed discretion regarding placement of individuals with criminal records, which, as noted infra, the court finds not to be the situation in this case.
3. Based on Ms. Lutchman-Singh's testimony, defendant argues (Reply Affirmation, dated March 2, 2010, ¶ 3) that Mr. Blackman was not working for defendant at the time of the assault and cannot be said to be "doing his master's work" (See Stewartson v Gristede's Supermarket Inc., 271 AD2d 324, [1st Dept 2000]). That is not clear, as Mr. Blackman may have been on the CCNY campus at least to prepare for or report to work. For purposes of this motion, the court assumes he was at work at 12:15 PM on June 1, 2006, when he assaulted claimant.
4. Mr. Blackman's personnel file also contains his letter dated June 22, 2006, resigning from his position as CUNY "custodial assistant." Id. Mr. Blackman apparently has not been deposed in this case.
5. Mr. Blackman's application shows that he was fingerprinted on May 9, 2002, before he was hired on May 16, 2002.
6. Claimant's reliance on Ramos v Jake Realty Co., 21 AD3D 744 (1st Dept 2005), is misplaced. In that case the plaintiff, a leader of a rent strike against defendant landlord, was assaulted by the building's superintendent when the plaintiff was videotaping the building's fire escape to gather evidence to support the tenants' application for a rent abatement. In reversing summary judgment for defendant, the court noted "[t]here is no evidence that the superintendent had any personal motivation for the assault." Id. at 746. Rather, the court noted, the superintendent assaulted plaintiff in a specific attempt to prevent him from collecting evidence against landlord, so there was a question of fact as to whether he was operating in furtherance of defendant landlord's interest when he assaulted plaintiff. There is no evidence here that Mr. Blackman was acting in furtherance of CCNY's interest in any way when he assaulted claimant.
7. Ms. Lund apparently misunderstood Correction Law § 753 (1) (d) and (e), which requires that a public agency such as CUNY, consider "the time which has elapsed since the occurrence of the criminal offence or offenses" and the "age of the person at the time of the occurrence of the criminal offense or offenses,"when she testified that she never would consider these factors in deciding whether to hire a convicted felon. Opposition Affirmation, Ex. 4, p 30. The court finds that her misunderstanding in these regards has not been shown to have had any bearing on the hiring of Mr. Blackman for the position of assistant custodian, which, as noted supra, the court finds to be consistent with the Correction Law § 753 factors.
8. Claimant's other arguments that defendant breached its own rules and regulations (including what claimant refers to as CCNY/CUNY Rule 3.1.3(f)) in hiring Mr. Blackman, and failed to exercise "heightened discretion" applicable to a person convicted of a violent crime (Opposition Affirmation, ¶¶ 54, 55 and 59) are equally without merit. Claimant's arguments are based upon perceived inconsistencies in the testimony among Ms. Brown, Ms. Lund and Ms. Haynes-Day with respect to how the Correction Law § 753 factors are to be applied generally. These inconsistencies, if that is what they are, also have not been shown by claimant to have had any bearing on the actual hiring of Mr. Blackman.