Court Permits Amendment to Add “Fair Chance Act” Criminal History Discrimination Claim

In Harding v Donatella GCT LLC, No. 158886/2017, 2019 WL 1597675, at *1 (N.Y. Sup Ct, New York County Apr. 11, 2019), the court granted plaintiff’s motion

under CPLR 3025 (b) to amend her complaint to add a claim under the Fair Chance Act of the New York City Human Rights Law, alleging that Donatella improperly inquired on Harding’s job application about whether she had a past criminal history.

Some law on the mechanics of moving to amend a complaint:

A party may move for leave to amend her complaint to assert additional claims at any time, even after trial. (CPLR 3025 [b].) Leave should be freely granted absent prejudice or surprise to the non-moving party, even if the amendment significantly modifies the theory of recovery. (Id.; Kimso Apt., LLC v Gandhi, 24 NY3d 403, 409, 411 [2014]; McCaskey, Davies & Assocs., Inc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983].)

In deciding a motion for leave to amend a complaint, a court should consider (i) whether the moving party was considerably delayed asserting a claim and whether a justifiable excuse for the delay; (ii) whether the non-moving party would be prejudiced or surprised, and (iii) whether plaintiff has established that the proposed amendment is not clearly devoid of merit.

Applying the law, the court found that the first factor was in plaintiff’s favor:

Here, any delay by Harding in moving for leave to amend her complaint was not “extended” so as to require an excuse. Harding filed her motion about fourteen months after the original complaint. The First Department has previously characterized a two-year delay as “short.” (Cherebin v Ambulance Service, 43 AD3d 364, 365 [1st Dept 2007].)

In any event, Harding has provided a reasonable excuse for her delay. Her proposed amended claim is based upon questions that appeared on her employment application, which was in Donatella’s possession until Harding’s counsel received a copy in discovery in December 2018. And Harding sought leave to amend only twelve days after receiving the employment application.

As to the second factor, prejudice, the defendant fell short:

Moreover, Donatella has failed to establish that it would be prejudiced by that delay — a “critical issue” for purposes of CPLR 3025 (b). (Cherebin, 43 AD3d at 365.)

To show prejudice, a party opposing leave to amend must show that the amendment will hinder its trial preparation or that it will prevent it from asserting its position. (Gandhi, 24 NY3d at 411; Caceras v Zorbas, 74 NY2d 884, 885 [1989]; Valdes v Marbrose Realty, Inc., 289 AD2d 28, 29 [1st Dept 2001].)

*2 Donatella asserts that it will be prejudiced because Harding’s proposed Fair Chance Act claim is a new theory of recovery that will require additional discovery and further motion practice. But that alone is not enough. While the parties have exchanged documents and interrogatories, discovery remains ongoing. And a motion for leave to amend may properly be granted even if a proposed amendment would significantly modify the theory of recovery. (E.g. Gandhi, 24 NY3d at 411.) Additionally, as noted above, Donatella has had actual notice throughout of the facts underlying the proposed additional claim — i.e., the questions that it originally asked Harding on her employment application.

Finally, the court held that the amendment was not devoid of merit, explaining:

Harding’s proposed amendment alleges that Donatella violated the Fair Chance Act by inquiring in 2017 whether Harding had a criminal record before tendering her at least a conditional employment offer. (See Administrative Code of the City of New York § 8-107 [11-a] [a] [3].) And Harding’s motion papers attach her original employment application, which includes a criminal-history question.

Donatella argues that the amendment is nonetheless devoid of merit because Harding did not suffer an injury as a result of Donatella’s hiring practices. This court disagrees. The Fair Chance Act — in effect at the time — plainly provides that such a pre-offer inquiry regarding criminal history is an unlawful discriminatory practice. (See Local Law No. 63 (2015) of the City of New York § 2.) The New York City Administrative Code provides that a person aggrieved by an unlawful discriminatory practice may bring a cause of action for damages (including punitive damages), injunctive relief, or other appropriate remedies. (See Administrative Code §§ 8-107 (11-a) (g) and 8-502.) And a person may be aggrieved for purposes of § 8-107 (11-a) even if their only injury was the deprivation of a right protected by the Code. (See Administrative Code § 8-102 [definition of “Person aggrieved”].) Harding’s proposed additional claim is thus, at a minimum, not clearly devoid of merit.

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