DECISION AND ORDER Plaintiffs include two female officers in the Hunter College Department of Public Safety who sue under the New York City Human Rights Law (NYCHRL) and New York State Human Rights Law (NYSHRL) claiming their employer, the City University of New York (CUNY), and its Director of Public Safety at Hunter College, Louis Mader, discriminated against plaintiffs by not promoting them based on their gender. Instead, he promoted or hired less experienced and less qualified men. Plaintiffs also claim defendants retaliated against plaintiffs for complaining about this gender discrimination. I. BACKGROUND Plaintiffs commenced this action in 2014 claiming discrimination based on their race, national origin, gender, marital status, and disability as well as retaliation under the NYCHRL and NYSHRL. Plaintiffs Miller and Jackson both alleged that defendants discriminated against plaintiffs based on their gender by promoting less experienced and less qualified men to leadership positions instead of plaintiffs. Miller also alleged that defendants discriminated against her based on her gender and status as a single mother by denying her request to work the day shift, while granting requests by male officers with lower rank and less seniority to transfer to the day shift, and that defendants retaliated against her for complaining about their unfair treatment of her. Jackson also claimed that defendants retaliated against her for her similar complaints, specifically by recommending disciplinary charges against her and later failing to promote her to sergeant despite her qualifications, and that Mader aided and abetted this discrimination and retaliation. Plaintiffs now move to amend their complaint to remove Desmond Richards as a plaintiff and eliminate all his claims; eliminate plaintiffs’ discrimination claims based on race, national origin, marital status, and disability; eliminate their aiding and abetting claim against Louis Mader; and claim only gender discrimination and retaliation under the NYCHRL and NYSHRL. Plaintiffs also seek to add allegations regarding nine promotions for which plaintiffs applied, but were not selected, in support of their gender discrimination claims. Defendants do not oppose plaintiffs’ motion insofar as it seeks to discontinue Richards’s claims or any other claims, but otherwise oppose plaintiffs’ motion because the claims in their proposed amended complaint lack merit and are barred by the applicable statutes of limitations. In claiming that the proposed amended complaint lacks merit, defendants rely on documentary evidence as well as plaintiffs’ failure to state a claim and, insofar as plaintiff’s motion may be denied, cross-move to dismiss both the original and the amended complaint on these grounds. C.P.L.R. §3211(a)(1) and (7). Contrary to plaintiffs’ contention, defendants may cross-move for any relief, as long as it is against the moving parties, here plaintiffs. C.P.L.R. §2215(b); Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 87 (1st Dep’t 2013). Given defendants’ response to plaintiffs’ motion, on May 16, 2019, the parties stipulated that plaintiffs claim only gender discrimination and retaliation under the NYCHRL and NYSHRL and discontinue all other claims, including plaintiffs’ aiding and abetting claim against Mader. Plaintiffs further agreed to eliminate their proposed allegations that defendants discriminated against plaintiffs when they failed to promote Jackson to corporal in 2011, specialist I in 2011, specialist II in 2013, and sergeant in 2015 and Miller to assistant director in 2014, as barred by the applicable statute of limitations. II. PLAINTIFFS’ PROPOSED AMENDED COMPLAINT Plaintiffs’ amended complaint alleges that Mader openly announced he would not promote women to leadership positions in the Department of Public Safety, and his successors have continued to implement this policy. Plaintiffs allege that the composition of the Department’s leadership positions reflects this policy. Men hold all eight positions in the Department’s hierarchy: the director, the deputy director, two assistant directors, and four specialists. No woman has held any one of these higher titles since 2007. Plaintiffs also allege that only four women hold the rank of sergeant, the title below assistant director, and defendants have promoted eight men and only three women to sergeant in the past 11 years. Looking at all positions in the Department in the past 11 years, plaintiffs allege that defendants have promoted 21 men and only five women. Plaintiffs each seek to add specific instances of discrimination in defendants’ hiring practices. Miller alleges that she was passed over in favor of less qualified male applicants when she applied for positions of assistant director in 2012, specialist I in 2012, and specialist I in 2016. Miller also alleges that defendants discriminated against her in 2013 when they assigned her to a night shift despite her objection and transferred male officers with lower rank to the day shift. Jackson alleges that defendants discriminated against her when she applied for specialist I in 2012, sergeant in 2014, and laborer in 2017. Plaintiffs also seek to add allegations regarding defendants’ retaliation against plaintiffs. Miller alleges that she complained to her union, the International Brotherhood of Teamsters Local 237, in July 2011 about defendants’ unfair treatment of officers based on their gender and that defendants then denied her a transfer to the day shift while they granted similar transfers to male officers with lower rank and less seniority. After Miller and her union representative met with Mader, defendants transferred her to a day shift, but then transferred her back to the night shift in January 2013 to allow a lower ranked and less senior male officer to transfer to the day shift. Jackson claims that defendants retaliated against her after she filed charges of gender discrimination with the United States Equal Employment Opportunity Commission (EEOC) in March 2013. Jackson alleges that in April 2013 defendants instituted baseless disciplinary charges against her and, even after she was cleared of all charges, recommended training and probation for her. Jackson also alleges that, in retaliation for her complaint to the EEOC, Mader’s deputy, Richard Meier, sabotaged her interview for a promotion in July 2013 when he recused himself from the interview in front of the other interviewers. Jackson maintains that Meier’s recusal signaled his disapproval of Jackson, leading to defendants’ hiring of two men with less experience and qualifications than Jackson. III. PLAINTIFF’S MOTION Leave to amend pleadings is to be freely granted unless it would surprise or otherwise prejudice the opposing parties. C.P.L.R. §3025(b); Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 (2015); Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014); Global Liberty Ins. Co. v. Tyrell, 172 A.D.3d 499, 500 (1st Dep’t 2019); Y.A. v. Conair Corp., 154 A.D.3d 611, 612 (1st Dep’t 2017). The court nevertheless must deny proposed amendments that lack merit. Davis v. South Nassau Communities Hosp., 26 N.Y.3d at 580; Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170 (1989); Reyes v. BSP Realty Corp., 171 A.D.3d 504, 504 (1st Dep’t 2019); Y.A. v. Conair Corp., 154 A.D.3d at 612. A. Surprise or Prejudice Defendants maintain that plaintiffs’ delay in amending the complaint has prejudiced them because they may not be able to locate necessary witnesses or other evidence, but defendants fail to specify any witness who is difficult locate or any instance of stale evidence. Defendants must demonstrate actual prejudice to warrant the denial of permission to amend the complaint; their speculation as to potential prejudice is insufficient. Eshaghian v. Eshaghian, 170 A.D.3d 416, 416 (1st Dep’t 2019); Flowers v. 73rd Townhouse LLC, 149 A.D.3d 420, 421 (1st Dep’t 2017); Spitzer v. Schussel, 48 A.D.3d 233, 234 (1st Dep’t 2008). The only new allegations plaintiffs seek to add stem from conduct in 2016 and 2017, mitigating any concerns of defendants about stale evidence. Plaintiffs’ other amendments either restate or extrapolate on allegations in the original complaint, of which defendants received notice over four years ago, giving them ample time to investigate and gather evidence relating to these claims soon after they allegedly occurred. Finally, plaintiffs’ original attorney’s overall neglect and failure to prosecute the action, which led to disciplinary charges and his eventual resignation from the practice of law, and plaintiffs’ new attorney’s efforts to restore the action from default are reasonable excuses for plaintiffs’ delay in amending the complaint. Jacobson v. McNeil Consumer & Specialty Pharm., 68 A.D.3d 652, 655 (1st Dep’t 2009). B. The Statute of Limitations Defendants also maintain that the applicable statutes of limitations bar plaintiffs’ amended claims. A limitations period of three years applies to plaintiffs’ claims under the NYCHRL and NYSHRL. C.P.L.R. §214(2); N.Y. Exec. Law §297(9); N.Y.C. Admin. Code §8-502(d); Mejia v. T.N. 888 Eighth Ave. LLC Co., 169 A.D.3d 613, 614 (1st Dep’t 2019); Santiago-Mendez v. City of New York, 136 A.D.3d 428, 428 (1st Dep’t 2016). Plaintiffs’ claims in the proposed amended complaint will be treated as interposed at the time of the original pleading as long as the original pleading gave notice of the transactions or occurrences underlying the new claims, and defendants will not be unduly prejudiced by the amendments. C.P.L.R. §203(f)); U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 33 N.Y.3d 84, 90 (2019); Buran v. Coupal, 87 N.Y.2d 173, 178 (1995); Ramirez v. Elias-Tejada, 168 A.D.3d 401, 402 (1st Dep’t 2019); O’Halloran v. Metropolitan Transp. Auth., 154 A.D.3d 83, 86 (1st Dep’t 2017). Plaintiffs filed their original complaint September 11, 2014, alleging defendants’ failure to promote Miller to assistant director in 2012 and to specialist I in 2012 and defendants’ transfer of Miller to the night shift in 2013. Aff. of Joshua Bernstein Ex. 1
