Abbey v Bausch & Lomb, Inc.

Abbey v Bausch & Lomb, Inc. 2006 NY Slip Op 08418 [34 AD3d 1244] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Kenneth F. Abbey et al., Appellants, v Bausch & Lomb, Inc., Respondent.

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Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered December 20, 2005. The order granted defendant's motion seeking summary judgment dismissing the second amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action alleging that they were discharged from their employment with defendant as the result of unlawful age discrimination. Supreme Court properly granted defendant's motion seeking summary judgment dismissing the second amended complaint. With respect to the first cause of action, alleging intentional discrimination, defendant established its entitlement to judgment as a matter of law by demonstrating the absence of proof that plaintiffs were discharged under circumstances giving rise to an inference of discrimination, by offering "legitimate, nondiscriminatory reasons for [its] challenged actions, [and by demonstrating] the absence of a material issue of fact as to whether [its] explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see generally Ferrante v American Lung Assn., 90 NY2d 623, 629-630 [1997]). Even assuming, arguendo, that plaintiffs may maintain the second cause of action, alleging age discrimination based upon a theory of disparate impact (cf. Bohlke v General Elec. Co., 293 AD2d 198, 200-201 [2002], lv dismissed 98 NY2d 693 [2002]), we conclude that defendant met its initial burden by establishing that, contrary to plaintiffs' allegations, its restructuring and workforce reduction did not have a disproportionate impact on employees over 40, and plaintiffs failed to raise "an inference that the [termination of their employment] cannot be justified by any explanation other than age discrimination" (Mete v New York State Off. of Mental Retardation & Dev. Disabilities, 21 AD3d 288, 297 [2005]). Present—Kehoe, J.P., Martoche, Centra, Green and Pine, JJ.