Opinion
November 21, 1994
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
Executive Law § 296 permits the dismissal of an employee who happens to have a disability when the disabling condition prevents the employee from reasonably performing his job (see, Matter of Antonsen v. Ward, 77 N.Y.2d 506; Matter of Miller v Ravitch, 60 N.Y.2d 527; Matter of Obas v. Kiley, 149 A.D.2d 422). Here, because of a non-job related automobile accident, the plaintiff suffered injuries which he concedes often rendered him totally unable to perform his work. Under these circumstances, the defendant was permitted to dismiss him based on his excessive absences and unsatisfactory performance.
Since the plaintiff failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which would require a trial of the action (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557), the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint. Bracken, J.P., Lawrence, Friedmann and Goldstein, JJ., concur.