Matz v Prospect Energy Corp.

Matz v Prospect Energy Corp. 2009 NY Slip Op 05373 [63 AD3d 619] June 30, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

Howard J. Matz, Appellant,
v
Prospect Energy Corporation et al., Respondents.

—[*1] Thompson Wigdor & Gilly LLP, New York (Scott B. Gilly of counsel), for appellant.

Skadden, Arps, Slate, Meagher & Flom LLP, New York (Maura Barry Grinalds of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 19, 2008, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed in this action where plaintiff, a job applicant for a senior management position, alleges that defendants refused to hire him after inquiring and learning of his sexual orientation during a reference check. Plaintiff did not establish a prima facie case of discrimination inasmuch as he failed to show that he was denied employment under circumstances giving rise to an inference of discrimination (see Brennan v Metropolitan Opera Assn., 284 AD2d 66, 70 [2001]).

The documentary evidence shows that defendants maintained throughout the hiring process that they did not offer plaintiff a job, but were interested in evaluating his capabilities by having him work on various projects. The evidence further demonstrates that prior to learning of plaintiff's sexual orientation, defendants had concerns regarding plaintiff's skills and rejected his aggressive style and attempts to accelerate the hiring process (see Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9 NY3d 910 [2007] [on motion to dismiss "court . . . is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence"]).

Plaintiff failed to show any facts as to warrant discovery pursuant to CPLR 3211 (d) (see e.g. Fitz-Gerald v Donaldson, Lufkin & Jenrette, 294 AD2d 176 [2002]). [*2]

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ. [See 2008 NY Slip Op 33089(U).]