Matter of Herbert v Kirkland

Matter of Matter of Herbert v Kirkland 2011 NY Slip Op 09326 Decided on December 20, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, A.P.J.
CHERYL E. CHAMBERS
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2010-09247
(Index No. 6329/09)

[*1]In the Matter of Arthur J. Herbert, petitioner,

v

Galen D. Kirkland, etc., et al., respondents.




Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for
petitioner.
Fulbright & Jaworski, LLP, New York, N.Y. (Douglas P.
Catalano and Neil G. Sparber of
counsel), for respondent New York Institute
of Technology.


DECISION & JUDGMENT

Proceeding pursuant to Executive Law § 298 to review a determination of the Commissioner of the New York State Division of Human Rights dated September 9, 2010, which adopted the recommendation and findings of an administrative law judge dated January 20, 2010, made after a hearing, finding that the petitioner did not establish that New York Institute of Technology discriminated against him in the terms, conditions, and privileges of his employment based upon his disability, in violation of Executive Law § 296, and dismissed the administrative complaint.

ADJUDGED that the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits, with costs to the respondent New York Institute of Technology, payable by the petitioner.

Even had the petitioner established a prima facie case of discrimination (see Matter of McEniry v Landi, 84 NY2d 554, 558; Koester v New York Blood Ctr., 55 AD3d 447, 448), substantial evidence supports the determination of the Commissioner of the New York State Division of Human Rights that the petitioner's employer, New York Institute of Technology, had a legitimate, nondiscriminatory reason for terminating the petitioner from its employ, and that he did not show that this reason was a pretext for discrimination (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; Matter of Sauer v Donaldson, 49 AD3d 656, 657; Genesky v Local 1000, AFSCME, AFL-CIO, CSEA, 287 AD2d 594, 595).
MASTRO, A.P.J., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court