October 9, 2013
John Kulaya, appellant,
Dunbar Armored, Inc., respondent. Index No. 1389/07
Frank & Associates, P.C., Farmingdale, N.Y. (Peter A. Romero of counsel), for appellant.
Nixon Peabody, LLP, Jericho, N.Y. (Thomas M. Mealiffe and Joseph J. Ortego of counsel), for respondent.
PETER B. SKELOS, J.P. RUTH C. BALKIN LEONARD B. AUSTIN SANDRA L. SGROI, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for discrimination in employment on the basis of disability and age in violation of Executive Law § 296, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 4, 2011, as granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging discrimination on the basis of disability.
ORDERED that the order is affirmed insofar as appealed from, with costs.
To state a prima facie case of employment discrimination due to a disability under Executive Law § 296, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment (see Ruane-Wilkens v Board of Educ. of City of N.Y., 56 A.D.3d 648, 649; Thide v New York State Dept. of Transp., 27 A.D.3d 452, 453; Timashpolsky v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 A.D.2d 271, 272). If the plaintiff succeeds in establishing a prima facie case, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employer's action was motivated by legitimate nondiscriminatory reasons (see Thide v New York State Dept. of Transp., 27 A.D.3d at 453; Timashpolsky v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 A.D.2d at 272). If the employer establishes that it had valid nondiscriminatory reasons for its action, the burden shifts back to the plaintiff to raise a triable issue of fact as to whether the stated reasons were pretextual (see Thide v New York State Dept. of Transp., 27 A.D.3d at 453).
Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the ground of disability by showing legitimate, independent, and nondiscriminatory reasons for its employment decision (see id.; Kipper v Doron Precision Sys., 194 A.D.2d 855, 856). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the reasons stated for his discharge from employment were pretextual (see Pimentel v Citibank, N.A., 29 A.D.3d 141, 148; Kipper v Doron Precision Sys., 194 A.D.2d at 856; King v Town of Wallkill, 302 F.Supp.2d 279, 291-292 [SDNY]; cf. Matter of Mair-Headley v County of Westchester, 41 A.D.3d 600, 602-603). Specifically, the plaintiff failed to raise a triable issue of fact as to whether there remained a full-time, light-duty position available after the defendant's relocation to a larger facility. Accordingly, the Supreme Court properly awarded summary judgment dismissing the cause of action alleging employment discrimination on the basis of disability.
SKELOS, J.P., BALKIN, AUSTIN and SGROI, JJ., concur.