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Wilkinson v. Community Preservation Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 1, 2010

ANDREA WILKINSON, ET AL., PLAINTIFFS-APPELLANTS,
v.
COMMUNITY PRESERVATION CORPORATION, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 11, 2009, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff Wilkinson's claims, 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., Sweeny, Acosta, Renwick, RomÁn, JJ.

110445/04

In support of her discrimination and retaliation claims, plaintiff Wilkinson failed to offer evidence to show that the legitimate, non-discriminatory reasons defendants articulated for their actions were false, contrived or pretextual (see Koester v New York Blood Ctr., 55 AD3d 447 [2008]; Stewart v Schulte Roth & Zabel LLP, 44 AD3d 354 [2007], lv denied 10 NY3d 707 [2008]). Additionally, plaintiff's New York City Human Rights Law claims are not viable because the alleged discriminatory conduct took place in Albany and no alleged discriminatory decision took place in New York City (Hoffman v Parade Publs., 65 AD3d 48 [1st Dept. 2009]; Duffy v Drake Beam Morin, 1998 WL 252064 [SDNY 1998]).

Even assuming, arguendo, that plaintiff was a third-party beneficiary of the contract between defendant Community Preservation Corporation (CPC) and Ace Holding, LLC, she failed to show that the delays in payment by CPC constituted a breach of that contract. Nor did plaintiff show that defendants owed her a fiduciary duty (see e.g. Chester Color Separations v Trefoil Capital Corp., 222 AD2d 276 [1995]).

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

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

20100601

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