Opinion
No. 2022-51133
11-18-2022
Evelyn Sheerer, Plaintiff, v. Angiodynamics, Inc., Defendant.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe of counsel), for plaintiff. Bond, Schoeneck & King, PLLC, Saratoga Springs (Michael D. Billok of counsel), for defendant.
Unpublished Opinion
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe of counsel), for plaintiff.
Bond, Schoeneck & King, PLLC, Saratoga Springs (Michael D. Billok of counsel), for defendant.
Robert J. Muller, J.
Defendant - which manufactures and sells medical devices - has several facilities throughout the Capital Region. In August 1993, defendant hired plaintiff to work third shift in the molding department at its facility in the City of Glens Falls, Warren County. Approximately one year later plaintiff was transferred to first shift in the packaging department, which is comprised of several assembly lines. According to plaintiff, she "was one of the only [p]ackaging employees who was qualified on all the [assembly] lines and cross-qualified as a Label Maker and Op-Code Writer, as well as being a Crew Lead and Trainer for Packaging and Labelling."
The facts in this matter pertain exclusively to the Glens Falls facility.
At some point in the 2000s, defendant moved the packaging department from the first to second floor of its facility, simultaneously raising the tables in the assembly lines. While the chairs previously used by employees on the first floor were brought up to the second, plaintiff alleges that most could not reach the raised tables and employees were encouraged to stand to improve their productivity.
In 2006, plaintiff was diagnosed with cardiogenic syncope which "makes [her] prone to fainting, especially when transitioning from squatting to standing." According to plaintiff, she "was able to manage [her] disability for quite a while, mainly because [she] was primarily working as a Label Maker[, a] more sedentary [position] as compared to the packaging lines[which] require repeated bending over or crouching."
In the fall of 2016, plaintiff's work assignments began to include more time on the assembly lines in the packaging department, which allegedly "required standing for a 10-hour shift." As a result, on September 20, 2016 plaintiff got a note from her doctor's office stating, in pertinent part: "Due to chronic health conditions that we have been treating [plaintiff] for, [she] requires a job where she can both sit in a chair and stand throughout the day."
According to plaintiff, there were not enough chairs in the packaging department, as there was "a growing number of... employees that had doctor's notes for medical conditions that required them to sit." Plaintiff further alleges that "there were two lines that could not accommodate chairs due to the amount of physical activity that they required; specifically the '6 OM' line and the 'Max Barrier' line." Plaintiff was allegedly required to work the 6 OM and Max Barrier lines - also referred to as lines 4 and 8, respectively - on several occasions, with her supervisor Chrissie Sobon advising that her doctor's note was not "good enough... to get [her] off [those] line[s]." As a result, plaintiff got a second note from her doctor's office on January 27, 2017. This note specified that "[d]ue to history of cardiogenic syncope..., [plaintiff] is prone to passing out especially with going from squatting (low) to standing (high)[, and] she should be permitted to sit and stand as needed throughout the day."
On February 9, 2017, plaintiff reported for her usual shift at 5:00 A.M., clocking in at 5:23 A.M. The roads were bad as the result of a snowstorm and Sobon had not yet arrived. Plaintiff learned that she was assigned to line 4, which she was not pleased about. She discussed the assignment with Cassie Marshall, a production coordinator in charge in Sobon's absence. Marshall refused to change the assignment and plaintiff clocked out at 5:33 A.M. At 2:39 P.M., Marshall sent an email to Steven Krawczyk - plaintiff's Human Resources Manager - stating as follows:
"This morning Thursday 9th February 2017 I rearranged the [s]chedule due to call offs and people out. I placed [plaintiff] on line 4 to replace someone. When she came in at 5:30 am - she came up to Liz Dunbar and myself and said she needed to speak to me - so I asked her what was wrong[. S]he stated that she would not work on line 4 with Jen Beckwith - that she had already told Chrissie this once. I asked if she could work on the line for a little while until Chrissie... came in and we could maybe look at closing a line or moving things around[. S]he stated that she was not going to work with her she had enough stress with the ride in this morning with the snow and she was not working the line she was leaving and that she also had restrictions[.] I asked her to just start there - she said no she was going home. I said I was not a supervisor and could not just give her permission to leave. She said she was leaving it didn't matter. She turned to leave got a few steps away and turned around and said she did not care if she got fired for this but she was going and that she had worked here for years. I did not say anything more."
Plaintiff was thereafter terminated for job abandonment, with defendant's employee handbook providing, in pertinent part:
"Occurrences of any of the following may result in immediate separation of employment, without warning, without following a formal disciplinary process and are at the sole discretion of [defendant]:...
Leaving work before the end of the workday, stopping work before time specified for such purposes or not being ready for work at the start of the workday unless approved by management.
Leaving your workstation during work hours without the permission of your [m]anager, except to use the restroom."
On February 5, 2018, plaintiff filed a complaint against defendant with the State Division of Human Rights (hereinafter SDHR) alleging as follows:
"On February 6, 2017, I was at my job and made to stand at my shift, which was 10 hours that day. I complained to my supervisor and said that I had a disability, and had previously provided a doctor's note, that prevented me from performing a shift that required standing, and that required bending over and squatting down and then standing back up. I was told that I was needed on that shift that day. On February 7 and February 8, the same thing happened - I was assigned to a shift that made me stand for the 10 hour duration, and made me squat down and stand up at regular intervals. I again said that I have the paperwork in with the company for an accommodation, and cannot perform that shift. I was told that's where I was needed each of these days, and so I completed my shifts, though it was very uncomfortable and physically taxing to do so.
"On February 9, 2017, I was assigned to [l]ine 8, which again required me to bend over and stand for the entire shift. I could not do this again, four days in a row. I did not feel well from the prior shifts. I felt dizziness and nausea, and knew that I would not last the shift. I told my Production Coordinator that I could not stand all day at work, that I was not feeling well, and asked to go home. I never told anyone that I was quitting, and was fired that same day. My employer later lied and said that I quit.
"I was fired because of my age - I cost the company more money based on my age and seniority, and I am sure that I was replaced by a worker earning lower wages. Additionally, despite asking to sit, I was not provided with a chair, which would have limited my symptoms from my syncope.... Finally, I needed to rest on February 9, 2017, to avoid collapsing given my medical condition,.... To be fired after asking for a day to rest when my health condition acted up, when I was made to work a shift where I was to be moving from a standing to squatting position for 10 hours, is disgraceful and I believe it is illegal."
Defendant filed its position statement on May 10, 2018, which included a copy of the February 9, 2017 email sent by Marshall to Krawczyk advising that plaintiff left because she refused to work on the same line as Beckwith. Plaintiff then filed an amended complaint on June 11, 2018, adding the following allegations:
"I was repeatedly harassed by Jen Beckwith about my disability and because I needed an accommodation to do my job. I had complained to Chrissie Sobon about Jen Beckwith harassing me based on my medical condition, my having a doctor's note, and my needing an accommodation. I had also complained multiple times that I needed a chair to sit due to my medical condition, and I was either told chairs were being ordered or I was not given a chair as needed. I had told Chrissie on Monday, February 6, 2017 if nothing was done about Jen harassing me, or me getting a chair, I was going to go to HR that Friday, February 10. I believe I was terminated on February 9, 2017 in part to prevent me from going to HR because I had opposed discrimination."
The SDHR thereafter conducted an investigation relative to the allegations and, on August 3, 2018, issued a finding of probable cause. Plaintiff later removed the matter from the SDHR, commencing the instant action on February 22, 2019. Plaintiff alleges four causes of action: (1) disability discrimination; (2) retaliation; (3) hostile work environment; and (4) wrongful termination. Issue has been joined, and discovery and depositions completed. Presently before the Court is defendant's motion for summary judgment seeking to dismiss the complaint in its entirety.
Plaintiff also applied for unemployment benefits from the State Department of Labor, which application was challenged by defendant. A hearing was held with plaintiff ultimately prevailing and receiving benefits.
"The movant seeking summary judgment has the initial burden to 'establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact'" (Hope v Hadley-Luzerne Pub. Lib., 169 A.D.3d 1276, 1277 [2019], quoting Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [2018] [internal quotation marks and citations omitted]). "Upon this showing, the burden then shifts to the opposing party to [submit] 'evidence demonstrating the existence of a triable issue of fact'" (Hope v Hadley-Luzerne Pub. Lib., 169 A.D.3d at 1277, quoting Aretakis v Cole's Collision, 165 A.D.3d at 1459 [internal quotation marks and citation omitted]; see CPLR 3212 [b]).
With respect to the plaintiff's first cause of action, Executive Law § 296 (3) (a) provides that "[i]t shall be an unlawful discriminatory practice for an employer... to refuse to provide reasonable accommodations to the known disabilities... of an employee...." A reasonable accommodation "is one which 'permit[s] an employee... with a disability to perform in a reasonable manner the activities involved in the job' and does not impose an 'undue hardship' on the employer's business" (Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 834 [2014], quoting Executive Law § 292 [21-e]; accord Graham v New York State Off. of Mental Health, 154 A.D.3d 1214, 1217 [2017]; see Matter of County of Erie v New York State Div. of Human Rights, 122 A.D.3d 1303, 1304 [2014]). "To establish a prima facie case of discrimination based upon the denial of a reasonable accommodation, the plaintiff must prove that he or she is a person with a disability, that the employer had notice of the disability, that he or she could perform the essential functions of the job with a reasonable accommodation and that the employer refused that reasonable accommodation" (Graham v New York State Off. of Mental Health, 154 A.D.3d at 1217-1218; see Executive Law § 296 [3] [a]; Matter of County of Erie v New York State Div. of Human Rights, 121 A.D.3d 1564, 1565 [2014]; Matter of Abram v New York State Div. of Human Rights, 71 A.D.3d 1471, 1473 [2010]; Pimentel v Citibank, N.A., 29 A.D.3d 141, 148 [2006], lv denied 7 N.Y.3d 707 [2006]; Pembroke v New York State Off. of Ct. Admin., 306 A.D.2d 185, 185 [2003]).
Here, defendant contends that it reasonably accommodated plaintiff's disability - providing her with a chair for each of her shifts - and as a result, plaintiff cannot establish discrimination as a matter of law. In support of this contention, defendant has submitted medical records indicating that, at her doctor's appointment on October 28, 2016, plaintiff "[r]eport[ed that her] dizziness ha[d] improved while at work since [the] note was written to allow her to sit for part of her shift." Defendant has also submitted the deposition testimony of (1) Sobon, its employee for the past 10 years and - as previously indicated - plaintiff's supervisor in the packaging department; (2) Krawczyk, its current director of human resources and human resource manager from 2013 to 2020; (3) Karalina Kelly June, its employee for the past 19 years and a Crew Lead in its packaging department; (4) Michael Butkowski, its employee from January 2000 to August 2016 and a production manager in the packaging department; and (5) Elizabeth Dunbar, its employee from roughly 2015 to 2017 who worked in the packaging department. Each of these individuals testified that whenever an employee needed a chair, a chair was always provided - and no one could recall any complaints regarding the availability of chairs. Finally, defendant has submitted the affidavit of Krawczyk, which attaches invoices reflecting the purchase of 24 chairs in August and September of 2016, as well as photographs of employees sitting while working.
Under the circumstances, the Court finds that defendant has failed to satisfy its initial burden to establish its prima facie entitlement to judgment as a matter of law on the first cause of action. At the outset, while plaintiff reported to her medical provider in October 2016 that her dizziness had improved while at work since she submitted the doctor's note, this in no way refutes her allegations that her assignments changed in the ensuing months and accommodations were no longer provided. In this regard, she states in her initial complaint to the SDHR that "[t]he last few months of [her] employment were exceptionally busy, and [she] was working 60 hour weeks along with [her] co-workers." Indeed, it appears that after October 2016 she was assigned more frequently to lines 4 and 8 - which could not accommodate chairs - and this change in assignments was what prompted her submission of a second doctor's note in January 2017.
Further, while the deposition testimony of these five individuals appears to establish the availability of chairs in the packaging department, three of these individuals - namely, Sobon, Krawczyk, and June - are currently employed by defendant, thus raising credibility issues. Butkowski left his employment with defendant in August 2016, before plaintiff submitted her first doctor's note requesting an accommodation, and his testimony is therefore of limited value. Dunbar indicated during her deposition that she "had a stroke last year so [her] memory is not very good," thus diminishing the value of her testimony as well. Notably missing is any testimony from Marshall with respect to whether plaintiff was offered any type of accommodation before leaving on February 9, 2017. Indeed, Marshall expressly states in her email to Krawczyk that plaintiff mentioned her restrictions, but there is no indication as to how Marshall responded. While Marshall and Beckwith were interviewed by the SDHR during its investigation, neither appeared in response to subpoenas served in this matter. Incidentally, Dunbar - who Marshall indicated was present during her conversation with plaintiff on the morning of February 9 - did not have any recollection of the conversation taking place. Again, however, her memory is apparently impaired.
It must also be noted that defendant is a sizeable company with many employees at the facility where plaintiff worked. As such, the purchase of 24 chairs is not particularly persuasive. The photographs of the employees sitting while working are likewise unpersuasive, as there is no indication when they were taken - nor where they were taken, with some testimony indicating that working from a seated position was more common in other departments. In sum, where - as here - "the facts are in dispute,... conflicting inferences may be drawn from the evidence, or... there are issues of credibility'" (Spiegel v Spiegel, 206 A.D.3d 1178, 1180 [2022], quoting McKenna v McKenna, 121 A.D.3d 864, 865 [2014] [internal quotation marks and citation omitted]; accord Gardella v Remizov, 144 A.D.3d 977, 979 [2016]), then summary judgment is inappropriate.
With defendant having failed to present competent evidence demonstrating the absence of any material issue of fact on plaintiff's first cause of action, there is no need to consider the opposition papers (see Vogler v Perrault, 149 A.D.3d 1298, 1299 [2017]; Green Planet Servicing, LLC v. Martin, 141 A.D.3d 892, 893 [2016]). That being said, were the papers to be considered the Court would find that plaintiff has succeeded in raising a triable issue of fact. In this regard, plaintiff has provided detailed deposition testimony relative to the lack of chairs in the packaging department and defendant's refusal to provide her with chairs when she was assigned to certain assembly lines - namely, lines 4 and 8. Indeed, the SDHR interviewed other employees during its investigation who provided similar testimony relative to the unavailability of chairs. Its report finding probable cause states, in pertinent part:
It is unclear why these other employees were not deposed in the context of this action.
"While some witnesses interviewed in the course of this investigation have stated there were enough chairs available for the employees, others have stated there were far too few available, or that many chairs were broken and could not adjust their height to table level. One witness who still works for [defendant], Kate Girard, stated that a former manager of their department, Mike Butkowski, had brought in higher tables so that the chairs that were originally there couldn't be used anymore as they did not go high enough. Ms. Girard stated that there were maybe half a dozen chairs for twenty people. She also stated that she had heard supervisors express to employees that they could be more efficient standing than sitting. Ms. Girard also stated that at one point shortly before [plaintiff] was terminated, one of the supervisors told the employees that the doctor's notes were getting out of hand, and that the next person who came in with a doctor's note would be fired....
"Joann Dupuis, who recently retired in January 2018, stated that there were not enough chairs for employees, and there were quite a few broken chairs. She also stated that supervisors believed employees weren't as productive sitting as standing, and supervisors would take chairs away and send them down to the warehouse. She also stated that a supervisor, possibly Ms. Sobon, had said that doctor's notes were getting out of hand, and that people were going to start doing their jobs, not running to the doctor for every little thing."
While defendant notes certain inconsistencies in plaintiff's testimony - such as her recollection that Marshall asked her to work on line 8 the morning of February 9, as opposed to line 4 - these inconsistencies do not warrant summary judgment on the first cause of action. Rather, they reflect upon plaintiff's credibility, which is for the trier of fact to decide. In this regard, it should be noted that both lines 4 and 8 allegedly require employees to stand.
Notwithstanding defendant's contentions to the contrary, the Court declines to find that this is a case in which "'credibility is properly determined as a matter of law'" (Ehlenfield v Kingsbury, 206 A.D.3d 1671, 1673 [2022], quoting Sexstone v Amato, 8 A.D.3d 1116, 1117 [4th Dept 2004], lv denied 3 N.Y.3d 609 [2004]; see Finley v Erie & Niagara Ins. Assn., 162 A.D.3d 1644, 1645-1646 [2018]). Indeed, plaintiff's affidavit and deposition testimony are not incredible as a matter of law (compare Sexstone v Amato, 8 A.D.3d at 1117), nor do they contradict all other evidence in the record (compare Schneider v Gap, Inc., 208 A.D.3d 606, 607 [2022]; Ehlenfield v Kingsbury, 206 A.D.3d at 1673-1674).
Turning now to the second cause of action, Executive Law § 296 (7) provides that "[i]t shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article." "To state a prima facie case of retaliation under Executive Law § 296 (7), a plaintiff must establish that he or she was engaged in a protected activity, of which the defendant was aware, and that he or she suffered an adverse employment action as a result of engaging in the protected activity" (Graham v New York State Off. of Mental Health, 154 A.D.3d at 1220-1221; see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 312-313 [2004]; Minckler v United Parcel Serv., Inc., 132 A.D.3d 1186, 1189 [2015]; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 A.D.3d 1464, 1466 [2011]). "To rebut a prima facie case of retaliation, the defendant must demonstrate that there were legitimate, independent and nondiscriminatory reasons supporting its actions" (Graham v New York State Off. of Mental Health, 154 A.D.3d at 1221 [internal quotation marks and citations omitted]; see Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, 41 A.D.3d 1138, 1140 [2007], lv denied 10 N.Y.3d 706 [2008]). "If the defendant satisfies this burden, the burden then shifts to the plaintiff to establish that the defendant's proffered reasons are pretextual" (Graham v New York State Off. of Mental Health, 154 A.D.3d at 1221; see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 A.D.3d at 1467; Pace v Ogden Servs. Corp., 257 A.D.2d at 104).
Here, defendant contends that plaintiff failed to state a prima facie case of retaliation because, inter alia, her claims of a protected activity were not made until after defendant filed its position statement with the SDHR. According to defendant, plaintiff fabricated these claims to keep her case alive. Defendant further contends that - even if plaintiff succeeded in stating a prima facie case of retaliation - there was a legitimate, independent and nondiscriminatory reason for her termination, namely job abandonment. In this regard, defendant has presented the affidavit of Krawczyk - with the February 9 email from Marshall attached thereto. Also attached to this affidavit are employment records demonstrating that defendant terminated 64 other employees for job abandonment between June 7, 2016 and May 30, 2017.
At the outset, the Court finds that plaintiff has succeeded in stating a prima facie case for retaliation. Plaintiff testified that on February 6, 2017 she told Sobon that if nothing was done about Beckwith harassing her and she did not get a chair by February 10, then she would go to Human Resources. Plaintiff further testified that she was fired on February 9, 2017 as a result of engaging in this protected activity. The timing of these claims relates solely to plaintiff's credibility which - again - is a question for the trier of fact. Credibility determinations seemingly abound in this case - particularly with respect to this cause of action, which pits plaintiff's version of events against that of Sobon. Indeed, these were the only two individuals present for the alleged conversation, and Sobon denies that it ever took place. In any event, the Court further finds that defendant has sufficiently rebutted plaintiff's prima facie case by demonstrating a legitimate reason for her employment being terminated, thus shifting the burden to plaintiff to establish that this proffered reason is pretextual.
The Court finds that plaintiff has succeeded in this regard. While other employees were also terminated for job abandonment during the relevant time period, a review of the records pertaining to these terminations reveals that most if not all of these employees simply failed to show up. That was not the case with plaintiff. Indeed, both plaintiff and June testified that typically when an employee does not feel well they are permitted to go home and use either sick or personal time - and it is undisputed that plaintiff had ample time to use. It is likewise undisputed that plaintiff called Sobon later in the day on February 9 to explain what transpired that morning and why she went home. On a motion for summary judgment, the evidence must be viewed in a light most favorable to the nonmoving party and that party must be accorded the benefit of every reasonable inference, without making any credibility determinations (see Carpenter v Nigro Cos., Inc., 203 A.D.3d 1419, 1420-1421 [2022]; Spiegel v Spiegel, 206 A.D.3d at 1180). Given this standard and the testimony discussed above relative to defendant's alleged failure to provide plaintiff with a chair on multiple occasions, the motion is denied with respect to the second cause of action.
Insofar as the third cause of action is concerned, "[a] hostile work environment claim requires proof of a workplace 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment'" (Long v Aerotek, Inc., 202 A.D.3d 1216, 1218 [2022], quoting Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 310 [2004] [internal quotation marks, citations and brackets omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999, 1003 [2021]; Pawson v Ross, 137 A.D.3d 1536, 1537 [2016]). "In assessing whether a plaintiff has made that showing, 'a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiff's work performance'" (Long v Aerotek, Inc., 202 A.D.3d at 1218, quoting Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d at 1003; see Pawson v Ross, 137 A.D.3d at 1537; Minckler v United Parcel Serv., Inc., 132 A.D.3d at 1187). "The workplace must also 'be both subjectively and objectively hostile,' meaning that 'a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive'" (Long v Aerotek, Inc., 202 A.D.3d at 1218, quoting Pawson v Ross, 137 A.D.3d at 1537; see Forrest v Jewish Guild for the Blind, 3 N.Y.3d at 311).
Here, defendant contends that- even if Beckwith did harass plaintiff based on her medical condition - such harassment is not sufficient to sustain a hostile work environment claim. Indeed, plaintiff testified that Beckwith made comments to her on a "weekly" basis, saying "she didn't really think [plaintiff] needed a doctor's note, and [that plaintiff] was lazy." June likewise testified that Beckwith was "a bully" who was "not nice and made [her] cry a lot of times." June further testified that Beckwith was ultimately fired, although it is unclear if she was fired because of her behavior or her job performance. In any event, this is the extent of the evidence relative to Beckwith's harassment of plaintiff and others - and such evidence fails to demonstrate a workplace permeated so severely with discriminatory intimidation, ridicule, and insult as to alter the conditions of plaintiff's employment (see Novak v v Royal Life Ins. Co. of NY, 284 A.D.2d 892, 893 [2001]; cf. Pawson v Ross, 137 A.D.3d 1536, 1538 [2016]; Minckler v United Parcel Serv., Inc., 132 A.D.3d at 1187-1188). The Court thus finds that defendant has satisfied its initial burden of demonstrating its entitlement to summary judgment relative to the third cause of action.
The Court further finds that plaintiff has failed to raise a triable issue of fact in opposition. In this regard, plaintiff simply argues that the testimony in the record is sufficient to demonstrate a hostile work environment - the case law, however, suggests otherwise. Accordingly, defendant's motion is granted to the extent that the third cause of action is dismissed as a matter of law.
Insofar as the fourth cause of action is concerned, "[i]t has long been the rule in this State that there is no cause of action for wrongful discharge of an at-will employee unless the termination of employment is constitutionally impermissible or statutorily proscribed, or unless there is an express limitation in the individual's contract of employment" (Babalola v Terry Vegetarian, LLC, 198 A.D.3d 607, 608 [2021]; see Civiletti v Independence Sav. Bank, 236 A.D.2d 436, 436 [1997]).
Here, plaintiff' fourth cause of action for wrongful termination is premised upon her first and second causes of action alleging statutorily proscribed disability discrimination and retaliation, respectively (see Executive Law § 296 [3] [a], [7]). Defendant's motion is thus denied insofar as the fourth cause of action is concerned.
The Court notes that - in addition to the evidence discussed above - plaintiff submitted the affidavits of Patricia Winnie and Rebecca Lyng in opposition to the motion. Winnie was employed by defendant in its packaging department from 1999 to 2020 and states that "[i]n January of 2017 [she] suffered a back injury which prevented [her] from sitting or standing all day." She further states that "[w]hen [she] was cleared to return to work, [she] had a medical restriction requiring that [she] be allowed to alternate between sitting and standing throughout [her] shift as needed[, and w]hile [her] supervisors, Ms. Sobon and Ms. Marshall knew that [she] required a chair..., they never provided [her] with one." Lyng was employed by defendant in its packaging department for 25 years and states that she was present on the morning of February 9, 2017. According to Lyng, plaintiff was complaining to Marshall about being "assigned to Max Barrier line" - or line 8 - because it was so physically demanding, and that plaintiff told "Marshall that she had sick time to use[, and] went home that day and indicated that she was using her sick time."
Defendant contends that neither of these affidavits can be considered, as these witnesses were never disclosed by plaintiff (see May v American Multi-Cinema, Inc., 191 A.D.3d 657, 658 [2021]; Awai v Benchmark Constr. Serv., Inc., 172 A.D.3d 978, 979 [2019]). The Court is not persuaded. To the extent that both affiants were employed by defendant at its Glens Falls facility - in the packaging department, with plaintiff - defendant clearly had knowledge of their existence. Moreover, there is no evidence that plaintiff's failure to disclose the witnesses was willful, with counsel for plaintiff indicating during oral argument that a demand for witnesses was never made. Under the circumstances, the Court finds that the affidavits may be considered (see Pearson v City of New York, 74 A.D.3d 1160, 1161 [2010]; Yax v Development Team, Inc., 67 A.D.3d 1003, 1004 [2009]). The Court further finds, however, that defendant's motion would fail relative to plaintiff's first, second and fourth causes of action irrespective of these affidavits. As such, the issue is largely moot.
Briefly, plaintiff contends that defendant's motion must be denied based upon defense counsel's failure to comply with the Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (a). The Court finds this contention to be without merit. Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (a) provides that "[u]pon any motion for summary judgment,... the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried" (emphasis added). The Court therefore has discretion relative to whether a Statement of Material Facts is necessary. Here, the affirmation of defense counsel sufficiently presents - in clear and numbered paragraphs - the material facts as to which defendant contends there is no genuine issue to be tried and, as a result, a statement of material facts is unnecessary.
Based upon the foregoing, defendant's motion for summary judgment is granted to the extent that the third cause of action is dismissed, and the motion is otherwise denied.
Counsel for the parties are hereby directed to appear for a conference on December 15, 2022 at 10:00 A.M. for the purpose of selecting a trial date, with this conference to be conducted virtually via Microsoft Teams.
Therefore, having considered NYSCEF document Nos. 31 through 53, 56, 57, 60 and 61, and oral argument having been heard on September 2, 2022 with Michael Crowe, Esq. appearing on behalf of plaintiff and Michael Billok, Esq. appearing on behalf of defendant, it is hereby
ORDERED that defendant's motion for summary judgment is granted to the extent that plaintiff's third cause of action is dismissed, and the motion is otherwise denied; and it is further
ORDERED that counsel for the parties shall appear for a conference on December 15, 2022 at 10:00 A.M. for the purpose of selecting a trial date, with this conference to be conducted virtually via Microsoft Teams.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.