In Schwartz v. J. Nazmiyal, Inc., No. 151276/2025, 2026 WL 301047 (N.Y. Sup. Ct. Jan. 28, 2026), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of employment discrimination.
From the decision:
Defendants argue that plaintiff cannot establish the fourth necessary element, that an adverse action occurred under circumstances giving rise to an inference of discrimination. Defendants contend that plaintiff’s detailed allegation of having been assaulted and battered by defendant Jason Nazmiyal is not and cannot be related to the alleged earlier offending remarks made by defendant Jason Nazimayal, such as “You Israelis are too aggressive!”, “You Israelis think you know everything”, referring to plaintiff and others as “his slaves” and saying “look at how I keep my slaves.” This argument urges a factual conclusion, which is insufficient to support dismissal under CPLR 3211(a)(7) (Vig v New York Hairspray Co., L.P., 67 AD3d 140 [1st Dept 2009]).
Whether the evidence at trial establishes that defendant Jason Nazimayal assaulted and battered plaintiff in the first instance, and, secondly, whether that assault and battery is related to, or a continuation of, years-long derogatory and hostile remarks regarding Israelis, is a determination to be made by the ultimate trier of fact. Stated differently, whether plaintiff’s dismissal resulted from a physical altercation unrelated to a history of verbalized animus toward plaintiff because of his national origin is a factual matter for determination at trial. The Court declines to conclude on this motion that plaintiff’s evidence will fail to demonstrate the assault and battery and subsequent termination of plaintiff on September 23, 2024 was part of a continuous course of conduct and odious behavior toward plaintiff engendered by animus toward Israelis.
Defendants’ argument that Plaintiff failed to plead an adverse employment action based on his national origin is also without merit. Notwithstanding the possible existence of evidence of any other adverse employment action that may be adduced at trial, summary dismissal from employment is perhaps the ultimate adverse employment action. Indeed, “termination of employment” is a defined adverse employment action in a matter relied upon by defendants for other purposes discussed, and distinguished, below: Henry v NYC Health and Hospitals Corp., 18 F. Supp. 3d 396 (SDNY March 10, 2014).
The court proceeded to explain that while the court in Henry v NYC Health and Hospitals Corp. 18 F. Supp. 3d at 396, unambiguously notes that “[a] plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably,” that court “does not transmute this potential for a supporting inference of employment discrimination into a mandatory requirement for success on a claim of employment discrimination.”