Opinion
CA 02-00178
October 1, 2002.
Appeal and cross appeal from an order of Supreme Court, Monroe County (Galloway, J.), entered October 5, 2001, which granted defendants' motion for summary judgment dismissing the complaint.
NIRA T. KERMISCH, ROCHESTER, FOR PLAINTIFF-APPELLANT-RESPONDENT.
NIXON PEABODY LLP, ROCHESTER (MARGARET A. CLEMENS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the cross appeal be and the same hereby is unanimously dismissed and the order is modified on the law by denying defendants' motion in part and reinstating the complaint against defendant Xerox Corporation and as modified the order is affirmed with costs to plaintiff.
Memorandum:
Plaintiff commenced this action alleging that defendants Xerox Corporation (Xerox), plaintiff's former employer, and Peter DeMauro, plaintiff's former manager at Xerox, unlawfully discriminated against plaintiff by terminating his employment based on his age ( see Executive Law § 296). On appeal from an order granting defendants' motion for summary judgment dismissing the complaint, plaintiff contends that Supreme Court should have denied defendants' motion as untimely, that DeMauro was properly named as a defendant, and that there are issues of fact warranting a trial. On their purported cross appeal, defendants contend that the action is barred by the res judicata and collateral estoppel effect of a prior federal court determination. Defendants are not aggrieved by the order granting summary judgment dismissing the complaint, however, and consequently their cross appeal must be dismissed ( see CPLR 5511; Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488; Matter of Fetzer v. Town Bd. of Town of Aurora, 289 A.D.2d 996, lv denied 98 N.Y.2d 606; Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, lv denied 82 N.Y.2d 653). We nevertheless shall consider defendants' contention as an alternative ground for affirmance ( see Niagara Mowawk Power Corp., 45 N.Y.2d at 488).
The court properly granted summary judgment dismissing the complaint against DeMauro. A claim of discrimination in violation of the Human Rights Law (Executive Law art 15) does not lie against a corporate employee where, as here, "he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others" ( Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542; see Young v. Geoghegan, 250 A.D.2d 423, 424; Trovato v. Air Express Intl., 238 A.D.2d 333, 333-334; Monsanto v. Electronic Data Sys. Corp., 141 A.D.2d 514, 515).
The court erred, however, in granting summary judgment dismissing the complaint against Xerox. Xerox submitted evidence rebutting plaintiff's prima facie case of discrimination by establishing that it had "'legitimate, independent, and nondiscriminatory reasons to support its employment decision'" ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629; see Scott v. Citicorp Servs., 91 N.Y.2d 823, 824; Hardy v. General Elec. Co., 270 A.D.2d 700, 701, lv denied 95 N.Y.2d 765; Alfano v. Miller Envtl. Group, 253 A.D.2d 446), thus shifting the burden to plaintiff to raise an issue of fact whether "the legitimate reasons proffered by [Xerox] were merely a pretext for discrimination" ( Ferrante, 90 N.Y.2d at 629-630; see Herskowitz v. Greystone Jewish Ctr., 270 A.D.2d 391; Hardy, 270 A.D.2d at 703-704). We conclude that plaintiff raised a triable issue of fact "concerning either the falsity of [Xerox]'s proffered basis for the termination or that discrimination was more likely the real reason" ( Ferrante, 90 N.Y.2d at 631; cf. Scott, 91 N.Y.2d at 824).
We therefore modify the order by denying defendants' motion in part and reinstating the complaint against Xerox. We have considered the parties' remaining contentions and conclude that they are without merit.