D'Avilar v Cerebral Palsy Assns. of N.Y.

[*1] D'Avilar v Cerebral Palsy Assns. of N.Y. 2007 NY Slip Op 52045(U) [17 Misc 3d 1117(A)] Decided on October 23, 2007 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 23, 2007
Supreme Court, Kings County

Grace D'Avilar, Plaintiff,

against

Cerebral Palsy Associations of New York, Defendant.



50993/02



Plaintiff:

Gregory Antollino, Esq.

NY NY

Defendant:

Kevin O'Donnell, Esq.

Kenny Stearns & Zonghetti LLC

NY NY

Arthur M. Schack, J.

CPA is a New York State not-for-profit corporation which provides services to individuals [*2]with severe developmental disabilities. Plaintiff was employed by CPA as a Direct Care Counselor from September 1997 to June 14, 2002. As a Direct Care Counselor, her duties were to assist individuals receiving care from CPA with the activities of daily life, including lifting/transferring, toileting, dressing, bathing, feeding, meal preparation, laundry, housekeeping, shopping and accompanying these individuals (referred to by CPA as "consumers") on various activities, such as recreational excursions and doctors' appointments.

Plaintiff, in December 2001, was assaulted during a robbery and required surgery for an injury to her right arm. She went on leave from her work for defendant CPA from December 10, 2001 to June 13, 2002. Plaintiff claimed, when she returned to work, that due to the injury to her right arm she was medically advised to refrain from lifting more than ten pounds. Plaintiff requested, in a June 7, 2002-letter, the following accommodation:

As you know, I possess a permanent disability to my right

shoulder, resulting from a mugging. Accordingly, I kindly request

a reasonable accommodation for my disability as I cannot lift patients

without assistance. Patients who need lifting comprise approximately

less that 10% of the patients I care for. There are two (2) possibilities

for an accommodation than readily come to mind. First, I only be

assigned patients who do not require lifting. Second, I be provided a

Hoyer lift, which [CPA] does have, which will assist and enable me to

lift patients. I look forward to continuing my employment with [CPA].

Should you find one of these accommodations acceptable or have any

other reasonable alternative accommodations, please advise.

Plaintiff also provided CPA with a note from her doctor that she was able to use a Hoyer lift - a mechanical lift used for lifting and transferring patients with severe mobility impairments - as long as the lift was electronically, as opposed to manually, controlled.

Plaintiff received a letter, dated June 14, 2002, from Janis Pshena, Director of Human Resources, which stated:

I am in receipt of your letter of June 7th. Please note

that the ability to lift (as part of a 2 person life, approximately 50

pounds) is an essential requirement for the [D]irect [C]are [C]ounselor

position. As [D]irect [C]are [C]ounselors are regularly floated

(by union seniority) to various work sites according to need, it is not

possible to permanently assign a [D]irect [C]are [C]ounselor to a site,

which does not require lifting. Regarding the Hoyer Lift, to properly

use this equipment, you must have full use of both arms. Therefore[,]

based on the nature of the position of a [D]irect [C]are [C]ounselor,

which requires physical work including ADL skills and lifting, we

cannot grant a "reasonable accommodation," which would excuse

you from the essential functions of the position

Plaintiff also received a letter from Ms. Pshena, dated June 27, 2002, which stated, in relevant part, that:

As discussed in today's meeting, [CPA] cannot allow you to

return to a Direct Care Counselor position based upon your lifting

restriction to 10 lbs. When you are able to assume the essential duties [*3]

of a Direct Care Counselor position, we will consider your re-employment

based upon Agency needs at that time.

Plaintiff, in her affidavit in opposition to the instant motion, described her work for CPA as follows:

I worked . . . at a location in Brooklyn, a group home for five

of [CPA's] adult clients. There were always at least three and sometimes

four workers in that home. Three of the five adults were fully able to

walk and needed no assistance that required me to lift with any arm.

Only two of the clients required any counselor to do any lifting at all,

but that was only once a week when these particular clients were taken

from the bed to the shower then to the shower to the bed. Most of the

week they were bathed in their beds. I was never asked to lift a patient

on my own, and any time these particular residents were transferred

from the bed to the shower there were always two workers to accomplish

this task.

In addition to the last group home that I worked at, I also worked

at a total of five additional locations while employed by CPA, all of

which had the same set up: four or five adult clients with three or

four counselors, with the majority of clients having full mobility and

a minority of clients having more limited mobility and needed [sic] the

assistance of two counselors.

As far as the other functions of the job, for example, dressing,

bathing, feeding, meal preparation, laundry and housekeeping, those

functions required no lifting whatsoever, and certainly no lifting with

both arms. As far as toileting was concerned, most of the residents I

was assigned to were fully mobile and wore diapers and required

nothing more than talking [sic] them to the bathroom, removing the

diapers, walking them to the shower and after the shower, drying them

off. None of these activities required lifting of any sort. . . .

Plaintiff also avers that she: never received any training in restraining CPA consumers or defending herself against them; was not trained in "Strategies for Crisis Intervention and Prevention (SCIP)"; and, never reviewed any documentation regarding this.

Ms. Pshena and Stanojka Lipovac, the Director of Professional Services at CPA, both testified at depositions on behalf of their employer. Said deponents testified that CPA had determined that plaintiff could not perform the requisite duties of her job either with or without her proposed accommodations. They testified that, inter alia, plaintiff's lifting restriction would prevent her from safely lifting or transferring patients, either in a two-person lift or via a Hoyer mechanical lift and also expressed concerns about her ability to be available to lift or transfer the more mobile CPA consumers in case of emergencies or to control behavioral problems through utilization of SCIP methods or otherwise. Ms. Pshena also testified that the so-called "floating" scheduling and placement, utilized by CPA, pursuant to a collective bargaining contract with the employees' union and based upon employee seniority, could not be superseded to place plaintiff with CPA populations that were highly either functional or restricted to being solely lifted and transferred via mechanical Hoyer devices, as plaintiff had requested by way of an [*4]accommodation.

Plaintiff, on or about June 24, 2002, applied for Social Security Title II Disability Benefits, as discussed further in this decision. She ultimately was awarded this in a September 8, 2003 decision by a Social Security Administration administrative law judge. The instant disability discrimination action was commenced by plaintiff on or about October 3, 2002.

Summary Judgment Standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 [3rd Dept 1981]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]; Winegrad v New York University Medical Center, 64 NY2d 851 [1985]).

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Once the movant has established his or her prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, supra at 562; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [2d Dept 1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [2d Dept 1991]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

Discussion

The determinative issue in this case, as framed by the parties, is whether plaintiff

could, with reasonable accommodation, satisfy the essential requisites of her job. Defendant CPA also argues, at some length, that plaintiff, in the first instance, cannot be considered "disabled." However, the New York City Human Rights Law defines a disability as follows:

(a) The term "disability" means any physical, medical, mental or

psychological impairment, or a history or record of such impairment.

(b) The term "physical, medical, mental, or psychological impairment"

means:

(1) an impairment of any system of the body; including, but not

limited to: the neurological system; the musculoskeletal system;

the special sense organs and respiratory organs, including, but not

limited to, speech organs; the cardiovascular system; the

reproductive system; the digestive and genito-urinary systems;

the hemic and lymphatic systems; the immunological systems; [*5]

the skin; and the endocrine system; or

(2) a mental or psychological impairment.

Additionally, the Local Civil Rights Restoration Act (Local Law 85 of 2005) mandates that "[i]nterpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of the New York City Human Rights Law," but that such similarly worded provisions are to be construed as "a floor below which the city's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise." Accordingly, to the extent similarly worded federal or New York state laws contain definitions of disability more restrictive than that employed by the New York City Human Rights Law, the Court declines to apply this in interpreting the City law's definition.

Defendant CPA, in the instant action, has established that plaintiff was unable to satisfy the essential requisites of her position as a Direct Care Counselor, due to her claimed disabilities and taking into account the accommodations proposed by plaintiff. The deposition testimony of Ms. Pshena, Ms. Lipovac and plaintiff, as well as the official job description for the subject position establishes that said position entailed assisting disabled individuals with activities of daily living, including toileting, lifting/transferring, showering, grooming, oral hygiene, feeding and dressing. Accompanying CPA consumers to clinic appointments, outside programming and recreational programs is also a requisite of the job. Further, Direct Care Counselors prepare meals, do laundry and otherwise perform various necessary housekeeping tasks.

Plaintiff avers, with respect to her claimed disability, that she cannot lift more than 10 pounds with her right arm. In her initial application for Social Security disability benefits, filed on or about June 24, 2002, plaintiff stated that she was disabled because she had lost function in her right arm after it was broken. She further stated that she ceased working on December 10, 2001 "[b]ecause of the [right arm] injury and surgery." Her Social Security benefit's claim based upon such injury was denied. The October 15, 2002 denial states, in relevant part, that:

You said you were disabled because of an impairment. The

medical evidence shows that you have had pain and stiffness with

some restriction of your activities and elevated blood pressure. We

realize that at present you are unable to perform certain kinds of work.

But based on your age of 47 years, education of 05 years, and your

experience, you can perform medium work (for example, you could

lift a maximum of 50 pounds, with frequent lifting or carrying of up

to 25 pounds).

If your condition gets worse and keeps you from working,

write, call or visit any Social Security office about filing another

application.

Thereafter, plaintiff appealed the determination and applied for a hearing on her disability claim. At the hearing, the administrative law judge apparently relied on a more detailed application for benefits by plaintiff which stated that she "became physically and mentally unable to work [on December 10, 2001] due to depression and physical [*6]limitations." Such limitations allegedly included "can't stand, walk or sit for long periods of time - difficulty concentrating - pain."

In granting plaintiff disability benefits, the administrative law judge determined that the claimant: could not engage in any substantial gainful activity on a regular and continuing basis; was limited to heavy or repetitive lifting of no more than five pounds; and, was also limited in activities requiring visual acuity and depth perception. He further determined that her residual functional capacity conformed to the demands of "less than sedentary work" and she was unable to perform her past relevant work as a home health aide "either as it was specifically performed by claimant or as it is generally performed in the national economy [citations omitted]." The administrative law judge also noted that plaintiff suffered from the following "medically determinable" and "severe" impairments: status post open reduction internal fixation right shoulder; major depressive disorder; status post multiple fractures humeral head; bilateral hearing loss; status post phthisical eye eviscerated; post traumatic stress disorder; adjustment disorder with anxiety/depression; hypertension; right mastoiditis; and, chronic draining ear. The judge also noted that plaintiff's symptoms of dizziness, lightheadednesss, anxiety, depression, chronic ear drainage and headaches "are supported by the record."

Accordingly, defendant CPA contends that given the requisites of plaintiff's position and her multiple claimed impairments, it has established, prima facie, that plaintiff cannot perform her job duties with reasonable accommodation, given that the only accommodation she has suggested - her assignment to patients who either do not require lifting or for whom a Hoyer lift can be used - is inadequate to address her lifting limitation and, in any event, she has suggested no accommodation - reasonable or otherwise - with respect to her alleged multiple impairments as established during the course of her application for, and receipt of, Social Security disability benefits.

Plaintiff, in opposition, has failed to raise a triable issue of fact with respect to her ability to perform her job with reasonable accommodations. It is well settled that aside from some differences in the definition of disability, "the legal standards for discrimination claims under [the Federal Americans with Disabilities Act (ADA)] and under New York State and city law are essentially the same" (see Konipol v Restaurant Assocs., 2002 WL 31618825, * 6 [SDNY 2002]; accord Rodal v Anesthesia Group of Onondaga, P.C., 369 F3d 113, 117 n.1 [2d Cir 2004]; Daponte v Manfredi Motors, Inc., 335 F Supp 2d 352, 357 [EDNY 2004]). When a plaintiff's claim of disability discrimination contradicts his or her application for and receipt of Social Security disability benefits, an area of jurisprudence from the integrated body of state and federal discrimination law has emerged to resolve this.

The United States Supreme Court, in the seminal case, Cleveland v Policy Mgt. Sys. Corp., 526 US 795, 805-806 [1999] instructed that:

[I]n some cases an earlier SSDI claim may turn out genuinely

to conflict with an ADA claim. Summary judgment for a defendant

is appropriate when the plaintiff "fails to make a showing sufficient [*7]

to establish the existence of an element essential to [her] case, and

on which [she] will bear the burden of proof at trial." Celotex Corp. v

Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

An ADA plaintiff bears the burden of proving that she is a "qualified

individual with a disability" - that is, a person "who, with or without

reasonable accommodation, can perform the essential functions" of

her job. 42 USC § 12111(8). And a person's sworn assertion in an

application for disability benefits that she is, for example, "unable to

work" will appear to negate an essential element of her ADA case -

at least if she does not offer a sufficient explanation. For that reason,

we hold that an ADA plaintiff cannot simply ignore the apparent

contradiction that arises out of the earlier SSDI total disability claim.

Rather, she must proffer a sufficient explanation.

The existence of contradictions between a party's SSDI claim and his or her disability discrimination claim is to be anticipated, given that "[t]he ADA only protects the disabled who can work with or without reasonable accommodation while SSDI does not consider reasonable accommodation at all in defining disability. Thus, an individual might be able to work with reasonable accommodation and therefore be a qualified individual' under the ADA, but be unable to work without reasonable accommodation and thus totally disabled' under SSDI as well" (Felix v New York Tr. Auth., 154 F Supp 2d 640, 652 [2001], affd 324 F3d 102 [2003]).

However, given that the differing statutory frameworks in such cases shall always be present, courts have found that this argument alone, namely that the SSDI statements were made by the plaintiff in a forum that does not take into account reasonable accommodations, should not be sufficient to deny the grant of summary judgment to defendant (see Felix v New York City Transit Auth., supra at 652). Rather, "[b]ecause the Supreme Court indicated in [the Cleveland case] that summary judgment would indeed be appropriate in some cases, an ADA plaintiff must, in certain circumstances, provide some additional rationale [to the different "statutory frameworks" argument] to explain the plaintiff's apparent about-face concerning the extent of the injuries" (Motley v New Jersey Transit State Police, 196 F3d 160, 165 [3d Cir 1999], cert denied 529 U.S. 1087 [2000]). This is particularly true given the central issue of plaintiff's ability to perform the subject job with or without reasonable accommodations to city, state and federal disability discrimination claims.

The Felix Court, noting that "the difference in statutory schemes, in itself, is not enough [to allow plaintiff] to survive summary judgment," nonetheless denied summary judgment to defendant because the plaintiff proffered "other explanations that sufficiently explain[ed] [the] contradictory positions" set forth in her ADA claim and application for and receipt of SSDI benefits (154 F Supp 2d at 654). The Court specifically found that there was sufficient evidence that the Social Security intake officer may have misunderstood or misadvised plaintiff with respect to her initial statements concerning her [*8]disability. In addition, there was evidence that the plaintiff's condition may have deteriorated after her initial ADA claim, so that she was a qualified individual at the time of the claim but became totally disabled thereafter. Finding that such evidence was best directed to the finder of fact, the court declined to grant summary judgment to defendant.

In Kendall v Fisse, 2004 WL 1196811, * 4 (EDNY 2004), affd 149 Fed Appx 19 [2d Cir 2005], the Court determined that "the principal issues for the Court to decide are whether [p]laintiff was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation and, if so, whether [d]efendants discharged [p]laintiff because of his disability." Accordingly, "having been classified as disabled by the SSA . . . the [p]laintiff has the burden, even at the summary judgment stage, of explaining the inconsistency between this classification and the prima facie requirement that he be able to perform the essential functions of the job, as least with reasonable accommodations" (id. at *5). Since plaintiff was unable "to explain this inconsistency between the statements in his SSDL application and his claim that he was qualified to perform the essential functions of his job with or without reasonable accommodation . . . there [was] no basis for a reasonable juror to conclude that plaintiff could perform the functions of his job. . . . [and] [d]efendants are therefore entitled to summary judgment" (id. at *6).

Similarly, in Mitchell v Washingtonville Cent. School Dist., 190 F3d 1, 7-8 [2d Cir 1999], the Court found that summary judgment was properly granted to the defendant in an ADA action where the plaintiff had received Social Security benefits on the basis of his claim that he could not walk or stand and was limited to sedentary work. Reasoning that once the plaintiff was judicially estopped from arguing that he could walk or stand, given that his statements professing this been adopted by the Social Security Administration in its grant of disability benefits to him, the plaintiff was also unable to demonstrate that he could perform the essential functions of his job as Head Custodian - the bulk of which admittedly could not be achieved from a seated position - with a reasonable accommodation and, therefore, failed to make out a claim under the ADA.

In a recent Appellate Division, Third Department case applying the New York State Human Rights Law (NYSHRL), the Court reiterated this general rule, recognizing that "[t]he U.S. Supreme Court has held that applying for and receiving SSDI benefits does not automatically preclude a disability discrimination clam" but rather imposes upon plaintiff an obligation "to explain any inconsistency between an SSDI application which presumably indicates an inability to work with a claim that he was able to perform the essential functions of his former position, at least with reasonable accommodations" (Engelman v Girl Scouts-Indian Hills Council, inc., 16 AD3d 961, 963 [3d Dept 2005]). The Court found, however, that given the fact-specific analysis required, the absence of plaintiff's SSDI application from the record rendered summary judgment unavailable. In its holding, the Court noted that plaintiff might be able to demonstrate that he could perform lifting and carrying functions on his job with reasonable accommodations, even if his SSDI application showed that he was considered disabled (without reference to [*9]reasonable accommodations given their irrelevance to the subject statutory framework for Social Security benefits) because he is unable to perform lifting and carrying functions. Accordingly, the import of the Engelman holding is that, given the fact specific nature of the inquiry, the court must have access to the claims made in the SSDI application and/or hearing as well as the claims made in the discrimination suit, and, to the extent a contradiction exists, the plaintiff must satisfactorily reconcile this to avoid the grant of summary judgment to defendant.

Plaintiff, in the case at bar, has failed sufficiently to explain the contradictions between her receipt of Social Security disability benefits and her instant disability discrimination action. She has failed to raise an issue of fact with respect to her alleged ability to perform the requisites of her job with reasonable accommodations.

With respect to discrimination against individuals with disabilities, the New York City Human Rights Law, codified in the New York City Administrative Code § 8-107 (15), states:

(a) Requirement to make reasonable accommodation to the

needs of persons with disabilities. Except as provided in paragraph (b),

any person prohibited by the provisions of this section from discriminating

on the basis of disability shall make reasonable accommodation to enable

a person with a disability to satisfy the essential requisites of a job or

enjoy the right or rights in question provided that the disability is known

or should have been known by the covered entity.

(b) Affirmative defense in disability cases. In any case where

the need for reasonable accommodation is placed in issue, it shall

be an affirmative defense that the person aggrieved by the alleged

discriminatory practice, could not, with reasonable accommodation,

satisfy the essential requisites of the job. . . .

"In order to state a prima facie case of employment discrimination due to a disability under both New York's Executive Law and the City's Administrative Code, the plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated" (Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], lv denied 7 NY3d 707[2006]). In addition, "the proponent of a NYHRL claim has the burden of establishing that she proposed a reasonable accommodation and the defendant refused to make such an accommodation" (id. at 148 [citations omitted]). Moreover, "[t]he obligation of reasonable accommodation is also limited to the employer's knowledge of the disability that needs to be accommodated" (id. at 148 ). Further, "disability discrimination statutes, whether federal or state, envisage employer and employee engaged in an interactive process in arriving at a reasonable accommodation for a disabled employee. (Parker v Columbia Pictures Indus., 204 F3d 326, 328 [2d Cir 2000]) The employer has the responsibility to investigate an employee's request for accommodation and determine its feasability" (id. at 149).

Plaintiff, in the instant case, applied for Social Security disability benefits based upon [*10]her right arm lifting restriction on or about June 24, 2002. She commenced the instant disability discrimination action on or about October 3, 2002. She was initially denied Social Security disability benefits on or about October 15, 2002. Thereafter, she appealed on or about December 18, 2002 and apparently was awarded a hearing before an administrative law judge, which occurred on August 19, 2003. As a result of the hearing she was awarded disability benefits upon a record which, as earlier described, included a number of medical conditions, symptoms and limitations, including her right arm injury.

The Court notes that, given plaintiff's well-documented requests for accommodations with respect to her right arm lifting restriction, any contradictions between the instant disability discrimination action and her receipt of Social Security benefits based solely upon this would have been sufficiently explained to support the denial of defendant's motion for summary judgment. This is particularly true given that the testimonial, affidavit and documentary evidence presented by the parties raises questions of fact with respect to the frequency of lifting as part of plaintiff's job, the method of lifting generally utilized, the impact of plaintiff's claimed disability upon the act of lifting, the general feasability of the accommodations proposed by plaintiff, and the specific role of the collective bargaining agreement in determining the reasonableness of plaintiff's requests that she be accommodated by her placement with certain populations of CPA's consumers.

However, as noted by defendant CPA, plaintiff's receipt of Social Security disability benefits, far from being based solely upon her right arm lifting limitation, was instead premised on a myriad of conditions and complaints, including her previously enumerated "medically determined" and "severe" conditions. In her application for Social Security disability benefits, she stated that "she became physically and mentally unable to work [on December 10, 2001] due to depression and physical limitations," which included the inability "to stand, walk or sit for long periods of time - difficulty concentrating - pain." In the same application, plaintiff stated that activities such as standing, walking and sitting constituted a large portion of her working hours and that she was also required to engage in lifting as part of her job.

Based upon such medical conditions, symptoms and limitations, the administrative law judge determined that the plaintiff could not "engage in any substantial gainful activity on a regular and continuing basis," "was limited to heavy or repetitive lifting of no more than 5 pounds," and, was also limited in "activities requiring visual acuity and depth perception." He further determined that her residual functional capacity conformed to the demands of "less that sedentary work," and that she was "unable to perform her past relevant work as a home health aide either as it was specifically performed by claimant or as it is generally performed in the national economy [citations omitted]."

Accordingly, although there is ample evidence that plaintiff proposed accommodations with respect to her lifting limitation, there is no evidence that she ever proposed any accommodations, or ever apprised defendant CPA of the need for the same, with respect to her alleged pain and difficulties in standing, walking, sitting or [*11]concentrating or her numerous other "severe"and "medically determined" mental and physical impairments. Rather, plaintiff merely ascribes such contradictions and discrepancies to the different statutory schemes underlying Social Security disability benefits and disability discrimination claims brought pursuant to New York City's Human Rights Law.

However, given plaintiff's failure to explain this inconsistency between the statements in her application for Social Security benefits, and the findings at the hearing, and her claim that she was qualified to perform the essential requisites of her job with reasonable accommodations, and her utter silence on the issue of proposed reasonable accommodations for the numerous allegedly disabling conditions included in her Social Security disability application and relied upon at her related hearing and in her award of benefits, there is no triable issue of fact to send to a jury. Unlike the Felix plaintiff, plaintiff has not alleged that such conditions were not present at the time she commenced her disability claim, but rather developed later. Nor is there any issue, as in the Engelman case, that some missing documentation exists which would potentially reconcile the two claims. Plaintiff has merely proffered, in an otherwise detailed affidavit, the generic and conclusory explanation that she was not required to refer to reasonable accommodations in her application for disability benefits. The Court, however, is not authorized to resort to surmise and conjecture in reconciling the contradictions between plaintiff's application for social security disability benefits and the instant disability discrimination action to extract a triable issue of fact with respect to her claim that she was able to fulfill the requisites of her job with reasonable accommodation. Accordingly, having failed to explain such contradictions, plaintiff has also failed to raise a question of fact as to whether defendant CPA was aware of such disabling conditions or had rejected proposed reasonable accommodations made by her with respect to the same. Therefore, the Court must grant defendant CPA's motion for summary judgment, under the well-established rules developed in the context of the ADA, and applicable to state and city disability discrimination claims, where, as in the instant action, contradictions exist between plaintiff's Social Security benefit award and plaintiff's disability discrimination claim.

The court notes that it considers its use of applicable federal and state law to interpret similar provisions of New York City's Human Rights Law, as sanctioned by the Local Civil Rights Restoration Act, to be appropriate given that a plaintiff's ability to perform his or her job with or without reasonable accommodations is central to both federal, state and local disability discrimination jurisprudence and is also indisputably impacted by the subject Social Security disability benefits issue ( see generally Pugliese v Long Island Rail Road Co., 2006 WL 2689600, * 11 [EDNY 2006] [noting that although, pursuant to the Local Civil Rights Restoration Act, a traditional federal Title VII legal framework could be utilized as an aid in interpretation, but was not controlling, when analyzing claims brought under the New York City Human Rights Law, it was nonetheless "useful to begin the analysis of such claims with an examination of Title VII."])

Conclusion[*12]

Accordingly, it is

ORDERED, that defendant Cerebral Palsy Associations of New York (CPA) motion for summary judgment, pursuant to CPLR Rule 3212, to dismiss plaintiff Grace D'Avilar's disability discrimination is granted, and plaintiff Grace D'Avilar's complaint is dismissed.

The foregoing constitutes the decision and order of the court.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.