Wilkinson v Community Preserv. Corp.

Wilkinson v Community Preserv. Corp. 2010 NY Slip Op 04630 [74 AD3d 405] June 1, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Andrea Wilkinson et al., Appellants,
v
Community Preservation Corporation et al., Respondents.

—[*1] Law Office of Steven A. Morelli, Garden City, (Steven A. Morelli of counsel), for appellants. Kaufman Borgeest & Ryan LLP, New York (Jonathan B. Bruno of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 11, 2009, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff Wilkinson's claims, unanimously affirmed, without costs.

In support of her discrimination and retaliation claims, plaintiff Wilkinson failed to offer evidence to show that the legitimate, nondiscriminatory reasons defendants articulated for their actions were false, contrived or pretextual (see Koester v New York Blood Ctr., 55 AD3d 447 [2008]; Stewart v Schulte Roth & Zabel LLP, 44 AD3d 354 [2007], lv denied 10 NY3d 707 [2008]). Additionally, plaintiff's New York City Human Rights Law claims are not viable because the alleged discriminatory conduct took place in Albany and no alleged discriminatory decision took place in New York City (Hoffman v Parade Publs., 65 AD3d 48 [1st Dept 2009]; Duffy v Drake Beam Morin, 1998 WL 252063, 1998 US Dist LEXIS 7215 [SD NY 1998]).

Even assuming, arguendo, that plaintiff was a third-party beneficiary of the contract between defendant Community Preservation Corporation (CPC) and Ace Holding, LLC, she failed to show that the delays in payment by CPC constituted a breach of that contract. Nor did plaintiff show that defendants owed her a fiduciary duty (see e.g. Chester Color Separations v Trefoil Capital Corp., 222 AD2d 276 [1995]).

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Sweeny, Acosta, Renwick and RomÁn, JJ. [Prior Case History: 2009 NY Slip Op 30647(U).]