Browne v Board of Educ.

Browne v Board of Educ. 2014 NY Slip Op 07465 Decided on November 5, 2014 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 November 5, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2013-07351
(Index No. 8318/11)

[*1]Robert Browne, respondent,

v

Board of Education, et al., appellants.

Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Steven Verveniotis and Brian S. Condon of counsel), for appellants.

Law Offices of Steven A. Morelli, P.C., Garden City, N.Y. (Joshua Beldner of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered July 8, 2013, as denied that branch of their motion which was for summary judgment dismissing the first cause of action, which alleged employment discrimination based on gender.

ORDERED that the order is affirmed insofar as appealed from, with costs.

By failing to raise collateral estoppel as an affirmative defense to the cause of action alleging employment discrimination either in their pre-answer motion to dismiss or in their answer, the defendants waived it (see CPLR 3211[a][5], [e]).

In opposition to the defendants' prima facie showing that there was a legitimate, nondiscriminatory reason for charging the plaintiff with misconduct, the plaintiff's submissions raised a triable issue of fact as to whether this reason was false, misleading, or incomplete, and thus, a pretext for discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 41).

Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiff's first cause of action, which alleged employment discrimination based on gender.

BALKIN, J.P., CHAMBERS, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court