Pretsker v Astoria Fed. Sav. & Loan Assn.

[*1] Pretsker v Astoria Fed. Sav. & Loan Assn. 2009 NY Slip Op 52663(U) [26 Misc 3d 1204(A)] Decided on December 21, 2009 Supreme Court, Kings County Martin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2009
Supreme Court, Kings County

Rita Pretsker,, Plaintiff,

against

Astoria Federal Savings and Loan Association, Defendant.



4605/07

Larry D. Martin, J.

Upon the foregoing papers, Defendant Astoria Federal Savings and Loan Association moves for an order, pursuant to CPLR § 3212 granting it summary judgment dismissing the complaint of Plaintiff Rita Pretsker. For the foregoing reasons stated below, Defendant's motion for summary judgment is granted.

Background

Plaintiff Rita Pretsker was employed by Defendant at the Coney Island Branch as a Senior Personal Banker, until she was terminated effective December 12, 2006.

Plaintiff commenced the instant action against Defendant seeking damages based upon Defendant's unlawful discrimination on the basis of her national origin in violation of New York Human Rights Law, Executive Law § 290, et seq and New York City Human Right Law, N.Y.C. Admin. Code Title 8. Plaintiff is of Russian descent. The complaint alleges that two former employees of Russian descent were transferred out of the Coney Island Branch when they were questioned by the United States Secret Service in connection with suspicious activities and certain wire transfers surrounding bank accounts that they opened for customers. The complaint alleges that because Plaintiff was friendly with these employees, Defendant "began to systematically remove Plaintiff from her position by closely supervising her work and documenting certain events in a discriminatory manner." The complaint further alleges that Plaintiff was treated differently from her supervisor Joseph Arevalo because he was not reprimanded for failing to report Plaintiff's misconduct to Defendant, but Plaintiff was disciplined for not reporting another employee's misconduct. In its answer, Defendant asserts that Plaintiff's termination was based on legitimate and non-discriminatory reasons, not because [*2]she is of Russian decent.

On March 22, 2007, Defendant moved to dismiss the complaint pursuant to CPLR§ 3211 (a) (7) for failure to state claim or in the alternative for summary judgment. Defendant's motions were denied without prejudice to renew after discovery. Discovery was completed and Defendant now moves for summary judgment pursuant to CPLR § 3212.

Discussion

After hearing oral arguments by Plaintiff and Defendant and a review of the pleadings herein, and consideration of applicable statutory and case law, the court grants Defendant's motion for summary judgment. On the record before it, the court finds that Plaintiff did not establish a prima facie case of discrimination based on her national origin.

Summary judgment should not be granted where there is any doubt as to the existence of a triable issue.(Manufacturers & Traders Trust Co. v. Cottrell, 80 AD2d 745 [1981]). Moreover, summary judgment should be denied where the issue is arguable. However, summary judgment "may not be defeated by conclusory assertions; the opponent of such a motion must present evidentiary facts sufficient to raise a triable issue of fact."(Bakerian v. Horn, 21 AD2d ([1964]).

The New York Human Rights Law, Executive Law § 290, et seq and the New York City Human Right Law, N.Y.C. Admin. Code Title 8, requires that Plaintiff establish a prima facie caseof discrimination. To meet this burden, Plaintiff must show that: 1) that she is a member of a class protected by the statute, 2) she was qualified to hold the position, 3) she was suffered an adverse employment action, and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination. If Plaintiff succeeds in proving her prima facie case, the burden shifts to Defendant to give legitimate, non- discriminatory reasons for the termination. The burden then shifts back to Plaintiff to show pretext by Defendant; both that the stated reasons were false and that discrimination was the real reason. To prevail on summary judgment, Defendant must show that Plaintiff failed to prove every element of the case, or Plaintiff did not show that the legitimate, non-discriminatory explanations are false or pretextual. (Forrest v. Jewish Guild for the Blind, 3 NY3d 295 ([2004]).

In its motion for summary judgment, Defendant contends that Plaintiff cannot establish the third element of her prima facie case, namely that she suffered an adverse employment action. Defendant's contention is wrong. Adverse action "requires a material change in the terms and conditions of employment" and might be indicated by a termination of employment. id. 297.

Defendant further contends that Plaintiff cannot establish the fourth element of her prima facie case, namely that the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. In its motion for summary judgment, Defendant submitted exhibits showing that Plaintiff was issued a Formal Written Warning on February 10, 2004 for improperly providing notary service. Moreover, on June 21, 2006 Plaintiff was issued a Final Written Warning and was placed on probation for 90 days when she violated the Bank's Corporate Ethics code by failing to report that she discovered theft by an employee.

Shortly after the end of Plaintiff's 90-day probation pursuant to the Final Written Warning, Defendant received a letter from one of its customers and Plaintiff's former sister -in- law Maya Pritsker. Maya Pritsker accused Plaintiff of fraudulently notarizing a real estate related document that Maya Pritsker did not sign. Maya Pristker further alleged that Plaintiff presented Pristker's signature card during a hearing before the Department of State Licensing Services without her permission. A customer's signature card contains confidential bank information such as the [*3]customer's social security number, date of birth, address and account number as well as the customer's signature. After Plaintiff admitted that she copied and removed a customer's signature card without permission, Defendant terminated her employment. Therefore, Plaintiff failed to establish the fourth element of her prima facie case of discrimination based on national origin.

Moreover, even if Plaintiff established a prima facie case of discrimination based on national origin, Defendant met its burden by providing legitimate and non-discriminatory reasons for Plaintiff's termination. Summary judgment is appropriate in discrimination cases where Plaintiff is "unable to raise a question of fact concerning either the falsity of defendant's proffered basis for the termination or that discrimination was more likely the real reason." (Ferrante v. American Lung Ass'n, 90 NY2d 623([1997]). Here, Plaintiff admitted that she engaged in the alleged misconduct, and did not assert that Defendant's legitimate and non-discriminatory reasons were false.

Conclusion

Plaintiff failed to establish a prima facie case for discrimination based on her national origin as required by the New York Human Rights Law, Executive Law § 290, et seq and the New York City Human Right Law, N.Y.C. Admin. Code Title. Moreover, Defendant provided legitimate and non- discriminatory reasons for the termination. Accordingly, Defendant's motion for summary judgment pursuant to CPLR § 3212 is granted.

The foregoing constitutes the decision and order of the court.

ENTER:

LARRY D. MARTIN J.S.C.