FILED: NEW YORK COUNTY CLERK 10/12/ :21 PM INDEX NO /2017 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/12/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ANDY SIMON Petitioner -against- NOTICE OF PETITION Index No.: NEW YORK STATE DIVISION OF HUMAN RIGHTS; AND THE ST. REGIS HOTEL. Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules X PLEASE TAKE NOTICE that upon the annexed verified petition of ANDY SIMON, verified the 12 th day of October, 2017 and the exhibits thereto, petitioner will request this Court at 9:30 AM on the 17th day of November, 2017, at the Courthouse, at 60 Centre Street, New York, New York, in the Motion Support Courtroom, Room 130, or as soon thereafter as counsel may be heard, for a judgment, pursuant to the Civil Practice Law and Rules, granting Petitioner relief by (i) annulling and reversing the Determination of the New York State Division of Human Rights that there was No Probable Cause to believe that Respondent the ST. REGIS HOTEL engaged in or was engaging in an unlawful discriminatory and retaliatory practices; (ii) referring the matter back to the Division for further proceedings, including but not limited to an Administrative Hearing; (iii) awarding the Petitioner Attorney's Costs and Fees; and (iv) such other relief as the Court may deem just and proper. PLEASE TAKE FURTHER NOTICE, that demand is made that the New York Division of Human Rights certify the transcript of the entire record of the proceedings before the Division of Human Rights and file the transcript with the court as provided in Executive Law Section of 13

2 PLEASE TAKE FURTHER NOTICE that you must serve a verified answer, any supporting affidavits and documents, and a certified transcript of the record of the proceedings, if any, at least five days before this application is made. Petitioner designates New York County as the place of trial. The basis of venue is pursuant to Executive Law Section 298 based on the fact that it is the location of Respondents and based on the fact that the events relevant to the underlying matter took place in New York County. Dated: New York, New York October 12, 2017 MASON LAW, PLLC. By: /s/ D. Christopher Mason D. Christopher Mason 575 Lexington Ave Fourth Floor, 4076 New York, New York of 13

3 VERIFICATION I, the undersigned, am an attorney duly admitted to practice law in the Courts of the State of New York, and mindful of the penalties of perjury, affirm the following: I am a member of the firm of the attorneys of record for the Petitioner ANDY SIMON. I have read the annexed Petitioner, know the contents thereof, and know the same to be true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters therein not stated upon personal knowledge, are stated upon information and belief based upon documents and information in counsel's file. The reason I make this Verification instead of the plaintiff is that the individual plaintiff does not reside in the county where this law firm maintains its office. I affirm that the foregoing statements are true under the penalties of perjury. Dated: New York, New York October 12, 2017 MASON LAW, PLLC. By: /s/ D. Christopher Mason D. Christopher Mason 575 Lexington Ave 4th Floor - Suite 4076 New York, New York (212) phone (212) fax cmason@masonlawpllc.com 3 of 13

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ANDY SIMON Petitioner -against- Index No.: Hon. NEW YORK STATE DIVISION OF HUMAN RIGHTS; AND THE ST. REGIS HOTEL. Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules X Petitioner Mr. Andy Simon ("Simon"), by and through his undersigned counsel, respectfully submits this Petition against the New York State Division of Human Rights ("Division") and The St. Regis Hotel ("St. Regis") (Collectively "Respondents"). The Division arbitrarily and capriciously determined that there was no probable cause to believe the Respondent St. Regis committed acts of discrimination against Simon, notwithstanding clear and largely unrefuted evidence to the contrary. PRELIMINARY STATEMENT 1. This proceeding is brought pursuant to Section 298, Art. 15 of the New York Executive law, to annul and reverse a Determination and Order by Respondent New York State Division of Human Rights (the "Division") that there was No Probable Cause to believe that Respondent St. Regis discriminated against Andy Simon relating to public accommodation on the basis of his sex, and sexual orientation.. 4 of 13

5 PARTIES AND FACTUAL BACKGROUND 2. Respondent Andy Simon is an openly gay black man of West Indian descent. On September 21 st, 2016 Simon was a patron at the King Cole bar located at the St. Regis Hotel. The St. Regis Hotel is a high end hotel contain a famous bar known as the King Cole located 2 East 55 th Street, New York, New York At the time, he patronized the King Cole, Simon was wearing a long black silk Givenchy shirt, an Alexander McQueen evening shoe, a Rick Owens silk scarf, and a lady s clutch purse. In addition, Simon was wearing cosmetics on his face including foundation and mascara. 4. Simon entered the bar and sat at the bar of the King Cole and ordered a drink. Shortly after receiving his drink the bar manager approached Simon and demanded that he immediately leave the premises without any explanation. When Simon expressed confusion as to why he was being asked to leave the bar manager had members of the security staff and the secret service approach Simon and escort him out of the building, humiliating Simon in the process. This was done in full view of the remaining bar staff and patrons present in the King Cole at the time. Upon information and belief, Simon was removed from the King Cole because of his sex and sexual orientation. 5. Within half an hour Simon returned to the King Cole bar wearing a modern men s tuxedo and was permitted to use the facilities at the Old King Cole bar without being approached by any bar manager or any other staff. 6. The following day Simon ed the bar manager Octavia Marginean ( Marginean ) and returned to the bar and spoke met with Marginean at the St. Regis. Simon and Marginean reviewed the video surveillance footage from the prior evening showing Simon being asked to 5 of 13

6 leave and being escorted out of the King Cole. Marginean apologized for Simon s treatment in writing and offered him a free drink and free lunch at the Old King Cole. 7. Subsequently, on or about January 9 th, 2017, Simon filed a Complaint with the New York State Division of Human Rights. See "Exhibit A. 8. Respondent St. Regis submitted an unverified answer to the Complaint, asserting, among other things, that Simon was not discriminated against and was removed from the St. Regis for allegedly being inappropriately dressed. See ''Exhibit B." 9. Simon interposed a Rebuttal. See "Exhibit C. 10. On March 10, 2017 Respondent Division requested additional information from Simon via letter. See Exhibit D. 11. On March 23 rd, 2017 Simon provided the additional information requested by the Division See Exhibit E 12. On July 5 th, 2017, the Division conducted a phone interview with Simon wherein the Division sought additional information about the September 21 st, 2017 incident. 13. On July 6 th, 2017 Respondent Division, arbitrarily and capriciously dismissed Simon's complaint, finding no probable cause to support a finding of discrimination, notwithstanding uncontroverted or incontrovertible facts in Simon s favor. See Exhibit F. 14. In light of the clear evidence to the contrary, the Division's findings are entirely arbitrary. Therefore, Petitioner by this Verified Petition respectfully urges this Court to set aside the Division's Determination and Order after Investigation dated July 6, 2017 and to grant all other further relief as is just and proper. JURISDICTION 6 of 13

7 15. This proceeding is brought pursuant to Section 298, Art. 15 of the New York Executive Law, to annul and reverse a Determination and Order by Respondent New York State Division of Human Rights (the "Division") that there was No Probable Cause to believe that the Respondent St. Regis discriminated against Andy Simon on the basis of his sex and sexual orientation which resulted in his being denied a public accommodation. VENUE 16. The Supreme Court has jurisdiction over this proceeding pursuant to State Executive Law Section 298. The Venue is set in New York County, pursuant to Executive Law Section 298, based on the fact that it is the location of Respondents and based on the fact that the events relevant to the underlying matter took place in New York County. DETERMINATION 17. The Division issued a Determination dated July 6, 2017, which found, without conducting a hearing, that there was No Probable Cause to find that the New York State Human Rights Law had been violated. A true copy of the Determination is annexed hereto as "Exhibit F." FACTS 18. A detailed recitation of the statement of facts relevant here are set forth in the Verified Petition. STANDARD OF REVIEW 19. Where, as here, a determination of no probable cause id rendered without holding a public hearing pursuant to Executive Law 297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis. Matter of McFarland v. New York State Div. of Human Rights, 241 A.D.2d 108, 671 N.Y.S.2d 461 (1988). 7 of 13

8 20. Probably cause of unlawful discriminatory practice exist when after giving full credence to the complainant s version of events, there is some evidence of unlawful discrimination Robertson v. State, 240 A.D.2d 504, 504, 659 N.Y.S.2d 773, 774 (1997). The Division must find probable cause where the complainant makes a prima facie case and where the Division finds any merit to the complainant s claims. See. e.g., id. ( Since there was no hearing, [the Division] may dismiss a complaint only if it appears that virtually as a matter of law the complaint lacks merit. (citing Mayo v. Hopeman Lbr. & Mfg. Co., 33 A.D.2d 310,313, 307 N.Y.S.2d 691 (1970)); see also New York State Div. for Youth v. State Human Rights Appeal Bd., 83 A.D.2d 972, 442 N.Y.S.2d 813 (1981) ("Since the investigation as conducted by the division involved separate meetings without hearings, it must appear in such instance that, as a matter of law, the complaint lacks merit in order for the division to dismiss the complaint."). When determining whether there is probable cause, it is improper for the Division to resolve credibility issues in favor of the respondent in human rights cases. See, e.g., State Div. of Human Rights on Complaint of Beckman v. Gaylord Bros., 112 A.D.2d 726, 728, 492 N.Y.S.2d 217 (1985) (finding "[t]he probable cause issue was investigated in a cursory and abbreviated manner and no independent inquiry was conducted to verify respondent's assertions prior to the issuance of the no probable cause determination" and remitting the matter "to the Division for, at least, a full and thorough investigation"). When making a determination of probable cause, the Division must be guided by the fact that: one intent on discriminating "cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive for we deal with an area in which 'subtleties of conduct... play no small part.'" Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y.2d 72, 77,417 N.E.2d 525,528 (1980) (quoting Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581 (1954). "The 8 of 13

9 Division may not dismiss a complaint upon a finding of no probable cause when the facts revealed in the investigation do not generate conviction in and persuade a fair and detached fact finder' that there is no substance in the complaint. State Div. of Human Rights on Complaint of Thompson v. Hatch Associates Consultants, Inc., 110 A.D.2d 1049, 488 N.Y.S.2d 907 (1985) (quoting State Div. of Human Rights on Complaint of Szarowicz v. Blanchette, 73 A.D.2d 820,821,423 N.Y.S.2d 745 (1979)) (quotations omitted). 21. Further, a Division determination must be vacated when, as here, the Division makes an error of law in analyzing a complaint and then issues a determination based on that error of law. See, e.g., Bailey v. New York State Div. of Human Rights, 38 Misc. 3d 756, , 959 N.Y.S.2d 833, 839 (Sup. Ct. 2012) (vacating the Division's "no probable cause" determination because the Division made an error of law when it "conclude[ed] that petitioner's complaint that she was discriminated against because she has children... would be familial status discrimination rather than sex discrimination.") When the Division erroneously applies the law to a claim, the appropriate remedy is to vacate the No Probable Cause determination and require the Division to address the claim. Id. at Lastly "[u]pon filing of a complaint with the New York State Division of Human Rights, the regional director of the office in which it is filed must make a prompt and fair investigation to determine whether there is probable cause to believe the charged parties have committed illegal discrimination." Soellner v. State Div. of Human Rights, 100 A.D.2d 876, 474 N.Y.S.2d 135 (1984) (citing Executive Law 297(2); 9 NYCRR 465.6(a)). "While the investigation need not be extensive, it must not be so abbreviated and one-sided that it results in a record which does not afford a reasonable basis for the administrative determination." Hendel v. New York State Div. of Human Rights, 114 A.D.2d 897, 898, 495 N.Y.S.2d 135 (1985) (citing Matter of Tirino v. 9 of 13

10 Long. Is. Jewish-Hillside Med. Center, 99 A.D.2d 513, 471 N.Y.S.2d 16 (1984)). An inadequate investigation, especially one that is one-sided, requires that the determination of no probable cause "be overturned as capricious." Id. ("The Division's investigation in this case was so onesided and abbreviated that the determination of no probable cause must be overturned as capricious.. [t]he 'investigation' consisted of no more than an examination of the papers submitted by the parties. There was no conference."); see also New York State Div. for Youth, 83 A.D.2d 972 ("We conclude that here, absent a full investigation including an opportunity for confrontation, the determination of the division was based on a record which was inadequate to meet the test of substantial evidence and was, therefore, arbitrary and capricious."); Matter of Gregory v. New York State Human Rights Appeal Bd., 64 A.D.2d 775,407 N.Y.S.2d 256 (1978) ("The investigation was inadequate... and the determination should, therefore, be annulled and the matter should be remitted for further proceedings."). LEGAL ARGUMENT POINT I THE DIVISION ARBITRATILY AND CAPRICIOUSLY COCLUDED THRE WAS NO EVIDENCE THAT SIMON EXPERIENCE DISCRIMINATION. 23. Despite the Division have numerous examples of Simon being treated differently because of his sex and sexual orientation during the evening of September 21 st, 2016 as well as more favorable treatment being afforded to similarly situation patrons outside of Simon s protected classes, the Division held that there was no evidence that Simon had been discriminated against on the basis of his sex or sexual orientation. This is erroneous as a matter of law and this arbitrary finding should be annulled. 24. Simon clearly alleged that he was approached and asked to leave the King Cole bar at the St. Regis hotel on September 21 st, 2017 by members of the bar staff. At the time, he was not 10 of 13

11 provided any explanation for why he was approached and asked to leave the establishment nor was he directed to sit in any other portion of the establishment. Upon information and belief, the reason Simon was asked to leave was because his appearance including the wearing of mascara and foundation and using a women s purse was offensive to the staff of the King Cole bar. 25. Subsequently, when Simon returned to the King Cole in more traditional clothing and without the foundation, makeup women s purse etc., he was permitted to enter the King Cole and he was not asked to leave by and member of the King Cole Staff. 26. When Respondent St. Regis opposed his verified complaint to the Division with a conclusory allegation that his removal from the King Cole was based upon inappropriate dress, Simon rebutted the self-serving assertions with additional evidence as well as photographs of his wardrobe from September 21 st, Finally, in addition to his rebuttal, Simon was interviewed by an investigator from the Division to provide additional detailed information regarding the events leading to the submission of the instant claim. Apparently, despite Simon identifying individuals who may have relevant information regarding the claim in the original complaint, these witnesses were never interviewed nor was anyone interview on behalf of the Respondent. See Matter of Gregory, 64 A.D.2d 775 (finding that an investigation was insufficient when key witnesses were not interviewed). 28. Accordingly, it was erroneous as a matter of fact for the Division to find that there was no evidence to support Simon s complaint in light of the verified facts alleged in the complaint. As such, the Division acted arbitrarily and capriciously when it based its Determination finding No Probably Cause on a lack of evidence. There exists a genuine issue of material fact that should be properly resolved by an Administrative Law Judge at a hearing, not by a Division Investigator 11 of 13

12 THE DIVISION IMPROPERLY WEIGHED THE EVIDENCE AND RESOLVED ISSUES OF CREDIBILITY IN FAVOR OF RESPONDENT 29. The Division's decision to improperly weighed the evidence and resolve credibility issues in favor of the Respondent was improper and irrational as a matter of law. Notwithstanding the fact that Simon stated that there was no greeter at the entrance to the King Cole on September 21, 2016 when he arrived, that he was never directed to go to the lounge, that Simon never say any signs requiring appropriate attire, and that he was dressed in high end fashionable clothing which was appropriate for the King Cole Bar. These as well as the other material facts should be resolved by an ALJ, and not a Division Investigator. AS AND FOR THE FIRST CAUSE OF ACTION 30. Simon realleges and restates the proceeding paragraphs as if fully set forth herein. 31. The determination by the New York State Division of Human Rights that Respondent St. Regis did not engage in unlawful discriminatory practiced is erroneous as a matter of law. AS AND FOR THE SECOND CAUSE OF ACTION 32. Simon realleges and restates the proceeding paragraphs as if fully set forth herein. 33. The determination by the New York State Division of Human Rights and Order of Investigation is contrary to the record below and is unsupported by any evidence, and is therefore erroneous as a matter of fact. AS AND FOR THE THIRD CAUSE OF ACTION 34. Simon realleges and restates the proceeding paragraphs as if fully set forth herein. 35. The determination by the New York State Division of Human Rights and Order of Investigation is arbitrary and capricious, an abuse of discretion and effected by error of law. WHEREFORE Petitioner ANDY SIMON respectfully requests that this Court: 12 of 13

13 1. annul and reverse the Determination of the New York State Division of Human Rights that there was No Probable Cause to believe that Respondent St Regis Hotel engaged in or were engaging in unlawful discriminatory and retaliatory practices; 2. refer the matter back to the Division for further proceedings, including, but not limited to an Administrative Hearing; 3. award the Petitioner Attorney's Costs and Fees; and 4. such other relief as the Court may deem just and proper. Dated: New York, New York September 5, 2017 MASON LAW, PLLC. By: /s/ D. Christopher Mason D. Christopher Mason 575 Lexington Ave Fourth Floor, 4076 New York, New York T: of 13