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Michno v. New York Hospital Medical Center of Queens

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 9, 2010

GLENDA A. MICHNO, APPELLANT,
v.
NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, RESPONDENT.

In an action to recover damages for discrimination in employment on the basis of race and national origin in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered October 30, 2008, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint.

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.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN SHERI S. ROMAN, JJ.

(Index No. 20695/01)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

To establish entitlement to summary judgment in a case alleging discrimination, the "defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; see Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d 929; Balsamo v Savin Corp., 61 AD3d 622; DeFrancis v North Shore Plainview Hosp., 52 AD3d 562; Morse v Cowtan & Tout, Inc., 41 AD3d 563). The defendant established its entitlement to judgment as a matter of law by demonstrating that the plaintiff was discharged for a legitimate nondiscriminatory reason consisting of her unexcused absence from work for more than three weeks for an alleged illness without proper medical documentation or application for a leave of absence, which was in violation of hospital policy and was a ground for dismissal (see generally Forrest v Jewish Guild for the Blind, 3 NY3d at 308). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's explanation for her termination was false or unworthy of belief, or was a pretext for discrimination (see id.; Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d 929; DeFrancis v North Shore Plainview Hosp., 52 AD3d 562; Morse v Cowtan & Tout, Inc., 41 AD3d 563). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.

MASTRO, J.P., DICKERSON, BELEN and ROMAN, JJ., concur.

20100309

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