Opinion
704 CA 17–02204
06-29-2018
Robert WALLACE, Plaintiff–Appellant, v. SUNY UPSTATE, Dean Mark Schmitt and Xin Jie Chen, Defendants–Respondents.
KAISER SAURBORN & MAIR, P.C., NEW YORK CITY (HENRY SAURBORN OF COUNSEL), FOR PLAINTIFF–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
KAISER SAURBORN & MAIR, P.C., NEW YORK CITY (HENRY SAURBORN OF COUNSEL), FOR PLAINTIFF–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages resulting from his alleged unlawful termination from defendant SUNY Upstate's College of Graduate Studies. Plaintiff asserted two causes of action, under Executive Law § 296(1)(a) and the Rehabilitation Act of 1973 ( [Rehabilitation Act] 29 USC § 701 et seq. ) and, as limited by his brief on appeal, he alleges that he was discriminated against based on his posttraumatic stress disorder (PTSD). We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint. We note at the outset that, as recognized by the parties, the court erred in determining that medical documentation supporting the diagnosis of PTSD was required to support plaintiff's Executive Law cause of action, inasmuch as his cause of action is expressly limited to a real or perceived disability (see Ashker v International Bus. Machs. Corp., 168 A.D.2d 724, 726–727, 563 N.Y.S.2d 572 [3d Dept. 1990] ).
Contrary to plaintiff's contention, the court properly granted that part of defendants' motion with respect to the Executive Law
§ 296 (1)(a) cause of action. Defendants met their initial burden by offering legitimate, independent and nonpretextual reasons for their employment decision, and plaintiff in opposition failed to raise a triable issue of fact whether the reasons stated for his discharge were pretextual (see Tibbetts v. Pelham Union Free Sch. Dist., 143 A.D.3d 806, 807–808, 39 N.Y.S.3d 195 [2d Dept. 2016] ; Kulaya v. Dunbar Armored, Inc., 110 A.D.3d 772, 772–773, 972 N.Y.S.2d 659 [2d Dept. 2013] ; see also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ). Specifically, "plaintiff [cannot] avoid summary judgment ‘by merely pointing to the inference of causality resulting from the sequence in time of the events’ " ( Forrest, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
Contrary to plaintiff's further contention, the court properly granted that part of defendants' motion with respect to the Rehabilitation Act cause of action. To state a cause of action for discriminatory termination under the Rehabilitation Act, plaintiff must demonstrate that: " ‘(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds’ " ( Regan v. City of Geneva, 136 A.D.3d 1423, 1425, 25 N.Y.S.3d 515 [4th Dept. 2016] ). Here, defendants met their initial burden by establishing that plaintiff was not terminated solely as a result of any disability (cf. id. ) and, in opposition, plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562–563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).