Opinion
2014-08-27
Walfredo LEON, etc., appellant, v. STATE UNIVERSITY OF NEW YORK, et al., respondents.
Roosevelt T. Seymour, Brooklyn, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and David Lawrence III of counsel), for respondents.
Roosevelt T. Seymour, Brooklyn, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and David Lawrence III of counsel), for respondents.
In an action, inter alia, to recover damages for employment discrimination on the basis of disability in violation of Executive Law § 296, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated April 5, 2013, as granted that branch of the defendants' motion which was for summary judgment dismissing the second cause of action, which alleged employment discrimination based on disability.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The New York Human Rights Law provides, “It shall be an unlawful discriminatory practice for an employer ... to refuse to provide reasonable accommodations to the known disabilities of an employee” (Executive Law § 296[3][a] ). Here, the Supreme Court correctly determined that the plaintiff's complaint was subject to dismissal to the extent that it alleged that the defendants violated Executive Law § 296(3). The modified work schedule accommodation the plaintiff sought involved his schedule at the nonparty Kings County Hospital Center, which, although “affiliated” with the plaintiff's now former employer, the defendant State University of New York, Downstate College of Medicine (hereafter SUNY), is not a facility owned and operated by SUNY. In any event, the defendants established, prima facie, their entitlement to judgment as a matter of law with evidence showing that, while the plaintiff suffered from a disability related to prostate cancer surgery, he never proposed a reasonable accommodation that the defendants refused to make ( see Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019; Evans v. City of New York, 64 A.D.3d 468, 883 N.Y.S.2d 478; Pimentel v. Citibank, N.A., 29 A.D.3d 141, 146, 811 N.Y.S.2d 381). Further, the defendants demonstrated, prima facie, that the action not to renew the plaintiff's term appointment as a clinical associate professor at SUNY was motivated by legitimate nondiscriminatory reasons ( see Matter of McEniry v. Landi, 84 N.Y.2d at 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019; Bailey v. New York Westchester Sq. Med. Ctr., 38 A.D.3d 119, 829 N.Y.S.2d 30; Timashpolsky v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 A.D.2d 271, 273, 761 N.Y.S.2d 94). In opposition, the plaintiff failed to raise a triable issue of fact with evidence that he proposed a reasonable accommodation that the defendants refused to make. Moreover, the plaintiff failed to raise a triable issue of fact with evidence from which one could infer that the reasons not to renew his term appointment as a clinical associate professor at SUNY were pretextual ( see Evans v. City of New York, 64 A.D.3d at 468, 883 N.Y.S.2d 478; Bailey v. New York Westchester Sq. Med. Ctr., 38 A.D.3d at 119, 829 N.Y.S.2d 30).
Accordingly, the Supreme Court correctly granted that branch of the defendants' motion which was for summary judgment dismissing the second cause of action, which alleged employment discrimination based on disability. RIVERA, J.P., ROMAN, SGROI and LaSALLE, JJ., concur.