| Balsamo v Savin Corp. |
| 2009 NY Slip Op 02737 [61 AD3d 622] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Olivia Balsamo, Appellant, v Savin Corporation et al.,Respondents. |
—[*1] Jeffrey A. Oppenheim, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofage and unlawful retaliation in violation of Executive Law § 296, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Queens County (Weinstein,J.), dated January 24, 2008, as granted that branch of the defendants' motion which was forsummary judgment dismissing the causes of action alleging age discrimination, unlawfulretaliation, and constructive discharge.
Ordered that the order is affirmed insofar as appealed from, with costs.
In the context of this case, to support her cause of action alleging age discrimination, theplaintiff must demonstrate prima facie (1) that she is a member of a protected class, (2) that shewas constructively discharged, (3) that she was qualified to hold the position from which she wasterminated, and (4) that the discharge occurred under circumstances giving rise to an inference ofage discrimination (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). Toprevail on their motion for summary judgment dismissing the cause of action alleging agediscrimination, the defendants were required to demonstrate either that, as a matter of law, theplaintiff cannot establish the elements of intentional discrimination, or that the plaintiff cannotraise a triable issue of fact as to whether the facially legitimate, nondiscriminatory reasonsproffered by the defendants for their challenged actions were pretextual (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 305 [2004]; Morse v Cowtan & Tout, Inc., 41 AD3d 563 [2007]). Here, inopposition to the defendants' prima facie showing of entitlement to judgment as a matter of lawon the age discrimination cause of action, the [*2]plaintiff failedto raise a triable issue of fact (seeDeFrancis v North Shore Plainview Hosp., 52 AD3d 562 [2008]; Johnson v NYU Hosps. Ctr., 39 AD3d817, 818 [2007]; DuBois vBrookdale Univ. Hosp. & Med. Ctr., 29 AD3d 731, 732 [2006]).
Similarly, those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging unlawful retaliation and constructive discharge wereproperly granted. The defendants established, prima facie, that the plaintiff did not suffer an"adverse employment action" based upon her engaging in a protected activity (Forrest vJewish Guild for the Blind, 3 NY3d at 313), and that they did not deliberately make herworking conditions so intolerable that a reasonable person in her position would feel compelledto resign (see Nelson v HSBC BankUSA, 41 AD3d 445, 447 [2007]; Thompson v Lamprecht Transp., 39 AD3d 846, 848 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Keooulay v Transcore, Inc., 51 AD3d 874, 874-875 [2008];Nelson v HSBC Bank USA, 41 AD3d at 447; Thompson v Lamprecht Transp.,39 AD3d at 848). Fisher, J.P., Angiolillo, Balkin and Belen, JJ., concur.