The opinion of the court was delivered by: Tucker L. Melancon, Senior United States District Judge:
Before the Court is defendant City of New York's Motion for Partial Summary Judgment [Rec. Doc. 69], and plaintiff James Darcy's Memorandum in Opposition thereto [Rec. Doc. 72]. The City of New York moves for summary judgment on Darcy's Americans with Disabilities Act "regarded as" claim pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion will be GRANTED.
Plaintiff was appointed to the NYPD on January 20, 1987. On August 23, 2001, plaintiff was assigned to Queens Narcotics, which plaintiff describes as a "very prestigious assignment." Plaintiff continued to serve in Queens Narcotics from August 2001 until he was transferred, in late 2004, to the NYPD Transit Division, District #11, in the Bronx, where he now serves as a platoon commander. According to plaintiff, the assignment in Transit is less prestigious than Queens Narcotics, and offers him considerably fewer overtime hours than his former position and thus adversely impacts his eventual retirement benefits.
During plaintiff's tenure at the 112th precinct in Queens, he met Police Officer John Doe. It is undisputed that Doe and plaintiff socialized as friends. The parties' papers occasionally withhold Officer Doe's true name to protect his privacy, but they also discuss openly the fact that Doe is the brother of Three-Star Deputy Chief James Hall and the son of retired Two-Star Chief Francis Hall.
On or about June 3, 2004, plaintiff alleges that Deputy Chief Hall said to plaintiff, "You are a lowly lieutenant and you suffer from the same disease [alcoholism] as my brother." Plaintiff also alleges that Deputy Chief Hall continued to say that he would "ruin" plaintiff if he went near his brother again. Plaintiff reported Deputy Chief Hall's remarks to both Deputy Director John Essig, the Commanding Officer of Queens Narcotics, and Captain Matthew Hyland. In December 2004, plaintiff was transferred to Bronx Transit.
Plaintiff alleges that the City of New York violated the ADA because it regarded him as disabled, he associated with John Doe and Doe's alcoholism, and members of the NYPD retaliated against him after he complained about his December 2004 transfer from Queens Narcotics to Bronx Transit.
On March 8, 2011, Judge Dearie denied defendant's motion for summary judgment except to the extent of dismissing the NYPD as a non-suable entity. The Court denied defendant's motion for summary judgment as to plaintiff's "regarded as" disability claim on the ground that the ADA Amendments of 2008 "expressly exempts 'regarded as' claimants from having to show that the disability they are perceived as having substantially limits a major life activity." See Decision, at 5-7 [Rec. Doc. 52]. The Court applied the post-amendment statute after noting that the Second Circuit had not yet addressed the question of retroactivity of the amendments. See Decision, at 6 n.2 [Rec. Doc. 52]. In a September 15, 2011 status conference, the Court instructed defendant to file a second motion for summary judgment with respect to plaintiff's "regarded as" claim addressing the retroactivity of the 2008 Amendment to the Americans with Disabilities Act under current Second Circuit law.
III. Summary Judgment Standard
Summary judgment is appropriate only when the record reflects that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Such a determination is to be made "after construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor." Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
Initially, the party moving for summary judgment must demonstrate the absence of any genuine issues of material fact. When a party seeking summary judgment bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As to issues which the nonmoving party has the burden of proof at trial, the moving party must satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim, and if the moving party succeeds the burden shifts to the non-moving party to show that there is a genuine issue for trial. Id. at 322-23.
Once the burden shifts to the non-moving party, he must direct the attention of the court to evidence in the record and set forth specific facts sufficient to establish that there is a genuine issue of material fact requiring a trial. Id. at 324. The non-moving party may not rest on mere allegations or denials of the adverse party's pleadings as a means of establishing a genuine issue worthy of trial, but must demonstrate by affidavit or other admissible evidence that there are genuine issues of material fact or law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970).
There is no genuine issue of material fact if, viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If no issue of fact is presented and if the movant is entitled to judgment as a matter of law, the court is ...