Plaintiff appeals from the judgment of the Supreme Court, New York County (Carol Robinson Edmead, J.), entered July 22, 2008, granting defendant's motion to dismiss the amended complaint alleging employment discrimination based on a disability in violation of Executive Law § 296 and the Administrative Code of the City of New York § 8-107, from the order, same court and Justice, entered July 8, 2008, which granted defendant's motion to dismiss the amended complaint, and from the order, same court and Justice, entered October 1, 2008, which, to the extent appealable, denied plaintiff's motion to renew.
The opinion of the court was delivered by: Acosta, J.
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.
David B. Saxe, J.P., John T. Buckley, James M. McGuire, Karla Moskowitz, Rolando T. Acosta, JJ.
This case requires us to evaluate the sufficiency of a complaint alleging disability discrimination under the New York State Human Rights Law (State HRL, Executive Law Article 16) and the New York City Human Rights Law (City HRL, Administrative Code § 8-101, et seq.) in the context of a motion to dismiss for failure to state a cause of action.
Plaintiff was an actor and musician in defendant's production of the hit musical play Hairspray. Plaintiff filled multiple roles in the production: the principal, Mr. Spritzer, Mr. Pinky, the policeman, the flasher, and a prison guard. He also served as understudy for Harvey Fierstein in his role as Edna Turnblad and for Dick Latessa in his role as Wilbur Turnblad. In addition, plaintiff played the glockenspiel as a musician in the production.
Plaintiff fulfilled these duties for defendant pursuant to two written contracts -- an Actors Equity Association contractand a contract with the Associated Musicians of Greater New York (Musicians Union). Defendant requested that plaintiff perform under the additional contract so that it could comply with the Musicians Union's requirement for the minimum number of musicians required for a Broadway production. As a member of the Musicians Union, and pursuant to the collective bargaining agreement between the Union Local 802 and the League of American Theatres and Producers, plaintiff was guaranteed employment for the run of the show.
Factual Allegations Plaintiff's Injuryand Medical Leave
Plaintiff alleges that he was injured during the course of his employment when, during the opening musical number of a Wednesday matinee, he fell on stage in front of the audience, banging his right knee and twisting the left. Plaintiff alleges that after he completed the performance, he was evaluated by a physical therapist on call in the theater, who advised him not to continue performing until he consulted with a physician.
Plaintiff alleges he consulted with Dr. Philip Bauman, the orthopedist recommended by defendant, who referred him for an MRI exam that revealed plaintiff had suffered a tear in the meniscus, the cartilage in his left knee. Plaintiff alleges he was able to resume performing that Saturday night after being advised by the physical therapist that he could perform, but could not twist or jump during the show.
Plaintiff further alleges that during the first week of July 2004, after returning from a one-week vacation, he informed the stage manager that he intended to have surgery to repair the injury based on Dr. Bauman's recommendation. Plaintiff claims that the stage manager requested he delay the surgery, and he agreed. Plaintiff alleges that the stage manager then approved the date of August 18, 2004 for the surgery and for medical leave to recover thereafter, but instructed plaintiff to request the leave from Marc Borsak (the company manager), Lon Hoyt (the musical conductor), Clint de Ganon (the house contractor), and Frank Lombardi (the production stage manager). Plaintiff alleges that all these individuals approved his leave.
Prior to his leave, however, plaintiff alleges he was told by Laura Green, defendant's general manager, that under the Actors Equity contract, he was not eligible for the approved leave. Plaintiff alleges that Green advised him the contract did not permit leave where a performer had less then nine weeks remaining on his contract. Plaintiff was scheduled for the surgery on August 18, 2004, and his contract expired approximately seven weeks after the surgery, in early October. Plaintiff alleges that ...