Evans v City of New York

Evans v City of New York 2009 NY Slip Op 05832 [64 AD3d 468] July 14, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

John Evans, Appellant,
v
City of New York et al., Respondents.

—[*1] Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), for respondents.

Order, Supreme Court, New York County (Paul George Feinman, J.), entered August 17, 2007, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to make a prima facie showing of discrimination pursuant to Executive Law § 296 (1) (see Matter of McEniry v Landi, 84 NY2d 554, 558 [1994]). While he demonstrated that he suffered from a mental impairment, he failed to present evidence sufficient to raise an inference that he could perform his job with reasonable accommodations (Executive Law § 292 [21]; Pimentel v Citibank, N.A., 29 AD3d 141, 146 [2006], lv denied 7 NY3d 707 [2006]). Nor did he show that he proposed a reasonable accommodation that defendant refused to make (see Pimentel at 148). In any event, defendants demonstrated that their actions were motivated by legitimate nondiscriminatory reasons, and plaintiff presented no evidence from which to infer that those reasons were pretextual (see McEniry, 84 NY2d at 558).

Plaintiff's claim for constructive discharge similarly failed, since he did not establish that defendants' actions resulted in a workplace atmosphere "so intolerable as to compel a reasonable person to leave" (Morris v Schroder Capital Mgt. Intl., 7 NY3d 616, 622 [2006]; Spence v Maryland Cas. Co., 995 F2d 1147, 1156 [2d Cir 1993]). Concur—Andrias, J.P., Friedman, Buckley, Acosta and DeGrasse, JJ. [See 2007 NY Slip Op 32549(U).]