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Matz v. Prospect Energy Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 30, 2009

HOWARD J. MATZ, PLAINTIFF-APPELLANT,
v.
PROSPECT ENERGY CORPORATION, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 19, 2008, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, Freedman, JJ.

109217/07

The complaint was properly dismissed in this action where plaintiff, a job applicant for a senior management position, alleges that defendants refused to hire him after inquiring and learning of his sexual orientation during a reference check. Plaintiff did not establish a prima facie case of discrimination inasmuch as he failed to show that he was denied employment under circumstances giving rise to an inference of discrimination (see Brennan v Metropolitan Opera Assn., 284 AD2d 66, 70 [2001]).

The documentary evidence shows that defendants maintained throughout the hiring process that they did not offer plaintiff a job, but were interested in evaluating his capabilities by having him work on various projects. The evidence further demonstrates that prior to learning of plaintiff's sexual orientation, defendants had concerns regarding plaintiff's skills and rejected his aggressive style and attempts to accelerate the hiring process (see Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9 NY3d 910 [2007] [on motion to dismiss "court...is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence"]).

Plaintiff failed to show any facts as to warrant discovery pursuant to CPLR 3211(d) (see e.g. Fitz-Gerald v Donaldson, Lufkin & Jenrette, 294 AD2d 176 [2002]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090630

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