Matter of Jochelman v New York State Banking Dept.

Matter of Jochelman v New York State Banking Dept. 2008 NY Slip Op 09267 [56 AD3d 375] November 25, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Irving Jochelman, Appellant,
v
New York State Banking Department et al., Respondents.

—[*1] Karen Wohlforth, New York, for appellant.

Andrew M. Cuomo, Attorney General, New York (Sasha Samberg-Champion of counsel), for respondents.

Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered September 7, 2007, which, in a CPLR article 78 proceeding seeking to annul respondents' determination denying petitioner a promotion to the position of principal bank examiner I, granted respondents' cross motion to dismiss the petition as a matter of law, unanimously reversed, on the law, without costs, to the extent that the petition seeks damages under the Americans with Disabilities Act (ADA), the ADA claim reinstated and deemed to be brought in the form of a plenary action, and the remainder of the appeal dismissed as moot. Appeal from order, same court and Justice, entered October 23, 2007, which, to the extent appealable, denied petitioner's motion to renew the petition, unanimously dismissed, without costs, as moot.

Prior to this appeal, petitioner was promoted to the position at issue, rendering moot that portion of his appeal seeking back pay (see Matter of Szipcek v Safir, 291 AD2d 269 [2002]). Nevertheless, petitioner's separate claim for damages related to respondents' allegedly discriminatory behavior has not been rendered moot by petitioner's promotion, and his ADA claim is not without merit as a matter of law (see Americans with Disabilities Act of 1990 [42 USC § 12101 et seq.]). The record raises factual issues as to whether respondents failed [*2]to make reasonable accommodations for petitioner's request, based on medical grounds, for alternative workspace. We therefore remand the matter for further proceedings. Concur—Lippman, P.J., Gonzalez, Moskowitz, Acosta and Renwick, JJ. [See 2007 NY Slip Op 32709(U).]