| Considine v Southampton Hosp. |
| 2011 NY Slip Op 03201 [83 AD3d 883] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Keith Considine, Appellant, v Southampton Hospital,Respondent. |
—[*1] Putney, Twombly, Hall & Hirson LLP, New York, N.Y. (Daniel F. Murphy, Jr., and Mark A.Hernandez of counsel), for respondent.
In an action, inter alia, to recover damages for employment discrimination on the basis of agein violation of Executive Law § 296, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Molia, J.), dated December 22, 2009, which granted the defendant'smotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff was employed by the defendant, Southampton Hospital (hereinafter thehospital), as a nuclear medical technologist. The hospital, which had hired the plaintiff in 1977,terminated his employment in April 2005, when the plaintiff was 53 years old. The terminationoccurred during a six-month probationary period under a "last chance" agreement, which wasreached after the arbitration of a prior termination of the plaintiff's employment in 2004 forvarious infractions including excessive lateness, attending to personal business during workinghours, and violation of parking regulations. The "last chance" agreement reinstated the plaintiffto his full-time position and provided for the termination of his employment if he engaged inserious misconduct, failed to comply with hospital rules, or had a significant performancedeficiency relating to such issues. In the final month of his probation, the plaintiff administered aradiopharmaceutical medicine through a patient's life port catheter without requesting thesupervision of a radiology nurse or nurse manager. The hospital found that the plaintiff's conductviolated its policies, as he had acted outside the scope of his authority and unnecessarilyjeopardized a patient's health and well being, and terminated the plaintiff's employment.
A defendant seeking summary judgment dismissing a cause of action alleging agediscrimination must demonstrate "either that, as a matter of law, the plaintiff cannot establish theelements of intentional discrimination, or that the plaintiff cannot raise a triable issue of fact as towhether the facially legitimate, nondiscriminatory reasons proffered by the defendants for theirchallenged actions were pretextual" (Balsamo v Savin Corp., 61 AD3d 622, 623 [2009]; see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 305 [2004]; Michno v New York Hosp. Med. Ctr. of Queens, 71 AD3d 746,747 [2010]; Tardif v Town ofSouthold, 56 AD3d 755 [2008]).[*2]
The hospital made a prima facie showing of itsentitlement to judgment as a matter of law. It demonstrated that it terminated the plaintiff'semployment because the plaintiff acted beyond the scope of his employment when he injectedthe patient with nuclear medicine on April 13, 2005, in violation of the hospital's policies, whichwas a legitimate nondiscriminatory reason (see Michno v New York Hosp. Med. Ctr. ofQueens, 71 AD3d at 747; Apiado vNorth Shore Univ. Hosp. [At Syosset], 66 AD3d 929 [2009]; cf. Tardif v Town of Southold, 56AD3d 755 [2008]). The hospital also demonstrated the absence of a triable issue of fact as towhether its proffered reason for terminating the plaintiff's employment was "false or unworthy ofbelief, or was a pretext for discrimination" (Michno v New York Hosp. Med. Ctr. ofQueens, 71 AD3d at 747; see Forrest v Jewish Guild for the Blind, 3 NY3d at 306;Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d at 930; Balsamo v SavinCorp., 61 AD3d at 623). In opposition, the plaintiff failed to raise a triable issue of fact(see Forrest v Jewish Guild for the Blind, 3 NY3d at 308; Apiado v North ShoreUniv. Hosp. [At Syosset], 66 AD3d at 930). Accordingly, the Supreme Court properlygranted the hospital's motion for summary judgment dismissing the complaint.
The plaintiff's remaining contentions need not be reached in light of our determination.Dillon, J.P., Balkin, Chambers and Sgroi, JJ., concur.