Elizarov v Martha Stewart Living Omnimedia, Inc.

Elizarov v Martha Stewart Living Omnimedia, Inc. 2007 NY Slip Op 08385 [45 AD3d 327] November 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Avner S. Elizarov, Appellant,
v
Martha Stewart Living Omnimedia, Inc., Respondent.

—[*1] Kaiser Saurborn & Mair, P.C., New York City (Daniel J. Kaiser of counsel), for appellant.

Emery Celli Brinckerhoff & Abady LLP, New York City (Katherine Rosenfeld of counsel), for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 13, 2006, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant offered legitimate, nondiscriminatory reasons for plaintiff's termination (see St. Mary's Honor Center v Hicks, 509 US 502 [1993]; Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734, 738 [1996]). Plaintiff offered no evidence in response to controvert defendant's proof that economic conditions required cost-cutting, resulting in significant job layoffs, or that defendant's downsizing was contrived for the purpose of terminating him (see Alvarado v Hotel Salisbury, Inc., 38 AD3d 398 [2007]; Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119 [2007]). Furthermore, because plaintiff conceded that his vacation request was granted by defendant and that he was permitted to attend religious services during his lunch hour, the court properly dismissed his "failure to accommodate" claim (see Nichols v Memorial Sloan-Kettering Cancer Ctr., 36 AD3d 426 [2007]). Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.