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Bull v. Metropolitan Jewish Health System. Inc.

Supreme Court of New York, Second Department

July 19, 2017

Nancy Bull, respondent-appellant,
v.
Metropolitan Jewish Health System, Inc., appellant-respondent. Index No. 18128/12

          McGuireWoods LLP, New York, NY (Michael J. DiMattia and Philip A. Goldstein of counsel), for appellant-respondent.

          The Law Offices of Dorothy H. Riggio, P.C., New York, NY, for respondent-appellant.

          RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In an action, inter alia, in effect, to recover damages for discrimination in employment on the basis of disability and age in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107, the defendant appeals from so much of an order of the Supreme Court, Kings County (Ash, J.), dated September 25, 2015, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied her motion for summary judgment on the causes of action alleging discrimination in employment on the basis of disability in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107.

         ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant's motion for summary judgment dismissing the complaint, and substituting therefor a provision granting that motion; as so modified, the order is affirmed, with costs to the defendant.

         The plaintiff commenced this action against the defendant, her former employer, inter alia, in effect, to recover damages for employment discrimination on the basis of disability and age in violation of the New York State Human Rights Law (see Executive Law § 296; hereinafter NYSHRL) and the New York City Human Rights Law (see Administrative Code of City of NY § 8-107; hereinafter NYCHRL). The plaintiff alleged that the defendant discriminated against her on the basis of her age and disability by terminating her employment because she was physically restricted from performing a certain filing task, as she had recently undergone surgery and was still recovering. The plaintiff also alleged that after she was discharged, the defendant misrepresented the facts regarding the circumstances of her discharge to the New York State Department of Labor in order to prevent her from claiming unemployment benefits. Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint, and the plaintiff moved for summary judgment on the causes of action alleging disability discrimination under the NYSHRL and the NYCHRL. The Supreme Court denied both motions. The defendant appeals, and the plaintiff cross-appeals.

         The Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging violations of the NYSHRL. In support of its motion, the defendant submitted the medical documentation that the plaintiff provided the defendant when she returned to work following her surgery, which indicated that she was cleared for work "without restrictions." This evidence established, prima facie, that the plaintiff did not suffer a disability requiring any accommodation at the time her employment was terminated (see Matter of Delta Air Lines v New York State Div. of Human Rights, 91 N.Y.2d 65; Caban v New York Methodist Hosp., 119 A.D.3d 717, 718; cf. Matter of Levi v Lauro, 58 A.D.3d 851, 852). In addition, the defendant met its burden of offering a legitimate, nondiscriminatory reason for terminating the plaintiff's employment and demonstrated that there were no material issues of fact as to whether those explanations were pretextual (see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305; Moise v Uptown Communications & Elec., Inc., 134 A.D.3d 782, 782-783; Singh v Covenant Aviation Sec., LLC, 131 A.D.3d 1158, 1159-1160; Furfero v St. John's Univ., 94 A.D.3d 695, 697). In opposition to this showing, the plaintiff failed to raise a triable issue of fact, inter alia, as to whether the defendant's proffered explanations for the termination of her employment were merely pretextual (see Singh v Covenant Aviation Sec., LLC, 131 A.D.3d at 1160; Furfero v St. John's Univ., 94 A.D.3d at 698; Hawkins v City Univ. of N.Y., 66 A.D.3d 553, 554).

         The Supreme Court also should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging violations of the NYCHRL. In that regard, the defendant made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in its challenged actions (see Moise v Uptwon Communications & Elec., Inc., 134 A.D.3d at 783; Reyes v Brinks Global Servs. USA, Inc., 112 A.D.3d 805, 806; Cenzon-Decarlo v Mount Sinai Hosp., 101 A.D.3d 924, 927; Furfero v St. John's Univ., 94 A.D.3d at 698; Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 45). In opposition, the plaintiff failed to raise a triable issue of fact (see Reyes v Brinks Global Servs. USA, Inc., 112 A.D.3d at 806).

         Further, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action based on testimony its employees gave before the New York State Department of Labor, as the testimony at issue was absolutely privileged (see generally Wiener v Weintraub, 22 N.Y.2d 330, 332-333; Phillip v Sterling Home Care, Inc., 103 A.D.3d 786, 787; Ashe v Mohawk Val. Nursing Home, 262 A.D.2d 960, 961).

         Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint. For the same reasons, the plaintiff's motion for summary judgment on the causes of ...


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