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Attis v. Solow Realty Development Co.

November 14, 2007


The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.


On February 9, 2007, plaintiff, a former employee at defendant Solow Realty Development Co. ("Solow Realty") filed this disability discrimination claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. (McKinney 2007), and the New York City Human Rights Law ("NYCHRL"), New York City, N.Y., Code § 8-101 et seq. Following discovery, defendants Solow Realty, Sheldon Solow (the President and founder of Solow Realty), Steven Cherniak and Jennifer Bier moved for summary judgment on all claims. Subsequently, plaintiff voluntarily withdrew her claims against two of the four defendants, Steven Cherniak and Jennifer Bier. For the reasons stated below, the motion of the remaining defendants, Solow Realty and Sheldon Solow, is granted in part and denied in part.

The relevant facts, either undisputed or, where disputed, taken in plaintiff's favor, are as follows:

Plaintiff was hired by Solow Realty as its Chief Administrative Officer in November, 2005. Defendants' Rule 56.1 Statement ("D. 56.1") ¶ 33; Plaintiff's Rule 56.1 Counter Statement ("P. 56.1") ¶ 7.

In that capacity, plaintiff had ultimate responsibility for all of Solow Realty's human resources functions. D. 56.1 ¶ 36; P. 56.1 ¶ 8.

Plaintiff, whose parents and two sisters died in a house fire when plaintiff was 14 years old, had for years suffered from recurrent depression, but not to the point where it had substantially limited her job performance or other life activities. D. 56.1 ¶ 14-15, 24-32; P. 56.1 ¶ 4, 6. However, on June 5, 2006, plaintiff's brother died from heart failure as a result of a cocaine overdose, D. 56.1 ¶ 55; P. 56.1 ¶ 21, upon which plaintiff suffered severe depression, stopped eating, and lost approximately 20 pounds. See Affidavit of Seth M. Kaplan ("Kaplan Aff.") dated August 17, 2007, Exhibit A at 280:20-281:13. Plaintiff's work performance was also affected, and between June 5 and June 23, she worked only six days.*fn1

See Declaration of Kelly Ibrahim dated August 15, 2007, ¶ 9 and Exhibit B.

On June 23, 2006, plaintiff was back at work when she suffered an emotional breakdown. D. 56.1 ¶ 70; P. 56.1 ¶ 27. Jennifer Bier, who was executive assistant to Sheldon Solow, called plaintiff's psychiatrist and told her plaintiff was having a breakdown. Kaplan Aff., Exhibit A at 277:6-22. Although plaintiff then left work to see her psychiatrist, she was told by Solow that she needed to take time off and that her job was safe. Kaplan Aff., Exhibit A at 290:5- 21. This message was repeated over the course of the next few weeks when plaintiff sought to return to work. P. 56.1 ¶ 16, 26. Among other things, Bier, Solow's administrative assistant, told plaintiff that plaintiff needed to go into a hospital to get treatment, that her job was secure, and that Solow only wanted her to get better. Id. at 282:20-283:7.

On July 6, 2006, plaintiff voluntarily checked herself into Columbia Presbyterian Hospital to seek treatment for depression. D.

56.1 ¶ 72-73; P. 56.1 ¶ 29. She spoke to Bier after checking into the hospital and asked if it was okay that she was there. Bier said that it was. Declaration of Thomas Ricotta ("Ricotta Decl.") dated August 31, 2007, Exhibit A at 296:24-297:25; Kaplan Aff., Exhibit A at 298:2. However, plaintiff received little or no treatment at Columbia Presbyterian and accordingly, after four days, she voluntarily checked herself out. D. 56.1 ¶ 72-73; P. 56.1 ¶ 29.

After leaving Columbia Presbyterian, plaintiff spoke to Bier and told her that she was not doing any better, that she was having thoughts of suicide, and that she had regained only a few pounds. However, she said she was ready to come back to work. Bier told plaintiff that Solow wanted her to gain more than a few pounds and that he wanted her to get the help she needed. See Kaplan Aff., Exhibit A at 306:8-308:18. Plaintiff also spoke with Solow directly, who told her that he was most concerned about her health and that she should not worry about her job. Id. at 309:13-310:8.

On or about July 16, 2007, plaintiff called Bier to let her know that she was considering voluntarily checking herself into Four Winds Hospital ("Four Winds"). See Ricotta Decl., Exhibit A at 312:9-12. She asked Bier if she should check into the hospital or just return to work. Bier responded that plaintiff had no choice because Solow would not take her back until she had been to a hospital and had gotten the treatment she needed. Id. at 313:2-20. Accordingly, on July 17, 2006, plaintiff voluntarily checked herself into Four Winds.

D. 56.1 ¶ 78; P. 56.1 ¶ 29.

The very next day, however, defendants apparently changed their minds, because Bier, on or about July 18, 2006, told plaintiff that the company needed her back that day, and that if she could not return to work she would be replaced. D. 56.1 ¶ 81; P. 56.1 ¶ 31. Plaintiff told Bier that she could not come into work because she was in the hospital and would probably not be out for another 10 days. See Kaplan Aff., Exhibit A at 326:20-23, ...

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