| Kulaya v Dunbar Armored, Inc. |
| 2013 NY Slip Op 06549 [110 AD3d 772] |
| October 9, 2013 |
| Appellate Division, Second Department |
| John Kulaya, Appellant, v Dunbar Armored, Inc.,Respondent. |
—[*1] Nixon Peabody, LLP, Jericho, N.Y. (Thomas M. Mealiffe and Joseph J. Ortego ofcounsel), for respondent.
In an action, inter alia, to recover damages for discrimination in employment on thebasis of disability and age in violation of Executive Law § 296, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, SuffolkCounty (Whelan, J.), dated April 4, 2011, as granted that branch of the defendant'smotion which was for summary judgment dismissing the cause of action allegingdiscrimination on the basis of disability.
Ordered that the order is affirmed insofar as appealed from, with costs.
To state a prima facie case of employment discrimination due to a disability underExecutive Law § 296, a plaintiff must show that he or she suffers from a disabilityand that the disability engendered the behavior for which he or she was discriminatedagainst in the terms, conditions, or privileges of his or her employment (see Ruane-Wilkens v Board ofEduc. of City of N.Y., 56 AD3d 648, 649 [2008]; Thide v New York State Dept. ofTransp., 27 AD3d 452, 453 [2006]; Timashpolsky v State Univ. of N.Y.Health Science Ctr. at Brooklyn, 306 AD2d 271, 272 [2003]). If the plaintiffsucceeds in establishing a prima facie case, the burden of proof shifts to the employer todemonstrate that the disability prevented the employee from performing the duties of thejob in a reasonable manner or that the employer's action was motivated by legitimatenondiscriminatory reasons (see Thide v New York State Dept. of Transp., 27AD3d at 453; Timashpolsky v State Univ. of N.Y. Health Science Ctr. atBrooklyn, 306 AD2d at 272). If the employer establishes that it had validnondiscriminatory reasons for its action, the burden shifts back to the plaintiff to raise atriable issue of fact as to whether the stated reasons were pretextual (see Thide v NewYork State Dept. of Transp., 27 AD3d at 453).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw dismissing the cause of action alleging employment discrimination on the ground ofdisability by showing legitimate, independent, and nondiscriminatory reasons for itsemployment decision (see id.; Kipper v Doron Precision Sys., 194 AD2d855, 856 [1993]). In opposition, the plaintiff failed to raise a triable issue of fact as towhether the reasons stated for his discharge from employment were [*2]pretextual (see Pimentel v Citibank, N.A., 29 AD3d 141, 148 [2006];Kipper v Doron Precision Sys., 194 AD2d at 856; King v Town of Wallkill,302 F Supp 2d 279, 291-292 [SD NY 2004]; cf. Matter of Mair-Headley v County of Westchester, 41 AD3d600, 602-603 [2007]). Specifically, the plaintiff failed to raise a triable issue of factas to whether there remained a full-time, light-duty position available after thedefendant's relocation to a larger facility. Accordingly, the Supreme Court properlyawarded summary judgment dismissing the cause of action alleging employmentdiscrimination on the basis of disability. Skelos, J.P., Balkin, Austin and Sgroi, JJ.,concur.