[976 N.Y.S.2d 427] Di Santo Bowles Bruno & Lutzer LLP, New York City (Maury B. Josephson of counsel), and Law Office of Maury B. Josephson, P.C., Melville, for appellant.
Gilmartin, Poster & Shafto LLP, New York City (Michael C. Lambert, Richard A. Bertocci and Andreas Seuffert of counsel), for respondents.
[998 N.E.2d 1051] The order of the Appellate Division, insofar as appealed from, should be modified, without costs, by reinstating the second cause of action and, as so modified, affirmed.
Plaintiff Giuseppe Romanello is a former executive of the financial services firm Intesa Sanpaola S.p.A. (Intesa). Plaintiff worked for Intesa and its predecessor for approximately 25 years when he became ill and unable to work. He was diagnosed with a series of disorders including major depression.
After plaintiff had been absent from work for almost five months during which time Intesa continued to pay his full salary, Intesa, through its counsel, sent plaintiff's counsel a letter, stating, among other things, " Mr. Romanello's FMLA [Family Medical Leave Act] expires on June 3, 2008 and the bank would appreciate knowing whether he intends to return to work or to abandon his position." Plaintiff's counsel responded, stating, in part, that " Mr. Romanello has, since on or about January 9, 2008, been suffering from severe and disabling illnesses that have prevented him, and continue to prevent him, from working in any capacity, let alone in the capacity in which he had been serving [Intesa]" and that Mr. Romanello " has not at any time evidenced or expressed an intention to ‘ abandon his position’ with [Intesa]. Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time." Intesa responded by terminating plaintiff's employment, although he continued to seek and eventually received long term disability payments under a policy of insurance provided by his employer.
Plaintiff thereafter commenced this action including claims that Intesa discriminated against him on the basis of his disability in violation of the New York State Human Rights Law ( see Executive Law § 296[a] ) (the State HRL) and the New York City Human Rights Law (Administrative Code of City of N.Y. § 8-107[a] ) (the City HRL). Plaintiff's complaint alleged separate causes of action for the State HRL (first cause of action) and the City HRL (second cause of action). Defendant moved to dismiss pursuant to CPLR 3211(a)(1) and (7), and submitted the parties' letters as documentary evidence supporting dismissal. Supreme Court, among other things and as relevant here, dismissed and severed the first and second causes of action. The Appellate Division affirmed, with two Justices dissenting in part and voting to reinstate the first and second causes of action [998 N.E.2d 1052] [976 N.Y.S.2d 428](97 A.D.3d 449, 949 N.Y.S.2d 345  ). Plaintiff appealed as of right pursuant to CPLR 5601(a) from so much of the Appellate Division order as affirmed the dismissal of the severed first and second causes of action.
In the context of employment discrimination, the term " disability" as defined in the State HRL is " limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation
sought or held" (Executive Law § 292 ). A " reasonable accommodation" means actions taken which permit an employee with a disability to perform in a reasonable manner activities involved in the job, and " do not impose an undue hardship on the business" (Executive Law § 292 [21-e] ). To state a claim under the State HRL, the complaint and supporting documentation must set forth factual allegations sufficient to show that, " upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job" ( Staskowski v. Nassau Community Coll., 53 A.D.3d 611, 611, 862 N.Y.S.2d 544 [2d Dept.2008]; Pimentel v. Citibank, N.A., 29 A.D.3d 141, 146, 811 N.Y.S.2d 381 [1st Dept.2006], lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277  ). Indefinite leave is not considered a reasonable accommodation under the State HRL ( cf. Phillips v. City of New York, 66 A.D.3d 170, 176, 884 N.Y.S.2d 369 [1st Dept.2009] [unlike " the State HRL (as well as the ADA) ... there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation" under the City HRL] ).
Here, neither plaintiff's communications with his employer just prior to his termination nor the complaint filed one year later offer any indication as to when plaintiff planned to return to work. Instead, plaintiff informed his employer that he had not expressed any intention to " abandon" his job and that his return to work date was " indeterminate" ; the complaint merely alleges that plaintiff sought " a continued leave of absence to allow him to get better and return to work." " Indeterminate" means " not definitely or precisely determined or fixed" (Merriam-Webster's Collegiate Dictionary [11th ed. 2008] ). Contrary to the dissent's view, we are not taking a one-sided view of plaintiffs claim. The only conclusion to be reached by plaintiff's own description of the circumstances is that he hoped to keep his job by requesting an indefinite leave of absence. Thus, even construing the complaint liberally and according plaintiff " the benefit of every possible favorable inference" ( 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496  ), plaintiff fails to state a claim under the State HRL and the first cause of action was properly dismissed.
The City HRL, on the other hand, affords protections broader than the State HRL ( see Phillips, 66 A.D.3d at 176, 884 N.Y.S.2d 369; Williams v. New York City Hous. Auth., 61 A.D.3d 62, 66, 872 N.Y.S.2d 27 [1st Dept.2009]; Local Law No. 85  of City of N.Y. § 7, ...