Romanello v Intesa Sanpaolo S.p.A.

[*1] Romanello v Intesa Sanpaolo S.p.A. 2015 NY Slip Op 51125(U) Decided on July 28, 2015 Supreme Court, New York County Freed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2015
Supreme Court, New York County

Giuseppe Romanello, Plaintiff,

against

Intesa Sanpaolo S.p.A. and ANN STEFAN, Defendants.



109314/09



Law Office of Maury B. Josephson, P.C.

Attorney for Plaintiff

445 Broadhollow Road, Suite 25

Melville, NY 11747

(516) 343-0900

Sanford Talkin, Esq.

Talkin, Muccigrosso & Roberts, LLP

Attorneys for Plaintiff

40 Exchange Place, 18th Floor

New York, New York 10005

(212) 482-0007

Michael C. Lambert, Esq.

Gilmartin, Poster & Shafto, LLP

Attorneys for Defendants

845 Third Avenue

New York, NY 10022

(212) 425-3220
Kathryn E. Freed, J.

RECITATION, AS REQUIRED BY CPLR 2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Mot. Seq. No. 003

PAPERSNUMBERED

DEF.'S NOT. OF MOT. AND LAMBERT AFF. ANNEXED1,2 (Exs. A-Y)

PERSICO AFF. IN SUPP.3 (Exs. A-C)

STEFAN AFF. IN SUPP.4 (Exs. A-K)

DEF.'S MEMO. OF LAW IN SUPP.5

PLTF.'S MEMO. OF LAW IN OPP.6

PLTF.S FIRST SUPP. AFFIRM. IN OPP.7 (Exs. 1-5)

AFFID. OF C. ROMANELLO-SCHADEN IN OPP.8

DEF.'S REPLY MEMO. OF LAW IN SUPP.9

DEF.'S REPLY AFF.10

Mot. Seq. No. 004

PAPERSNUMBERED PLTF.'S NOT. OF MOT. AND AFFIRM. IN SUPPORT1,2 (Exs. 1-50)

PLTF.'S AFFID. IN SUPPORT3

PLTF.'S MEMO. OF LAW IN SUPPORT4

AFFID. OF C. ROMANELLO-SCHADEN IN SUPPORT5

STEFAN AFFID. IN OPP.6

LAMBERT AFFIRM. IN OPP.7 (Exs. A-M)

DEF.'S MEMO. OF LAW IN OPP.8

PLTF.'S REPLY MEMO. OF LAW IN FURTHER SUPP.9

PLTF.'S SECOND SUPP. AFFIRM. IN SUPP.10 (Exs. 1-5)

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

In this action seeking damages arising, inter alia, from an alleged violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]) ("the NYCHRL"), defendants Intesa Sanpaolo S.p.A. ("ISP") and Ann Stefan move, pursuant to CPLR 3212 (Mot. Seq. 003), for summary judgment dismissing plaintiff Giuseppe Romanello's second cause of action (NYCHRL violations against both defendants) and sixth cause of action (breach of contract against ISP). Defendants also seek to dismiss plaintiff's punitive damages claim. Plaintiff moves, pursuant to the same statute (Mot. Seq. 004), for partial summary judgment against ISP on his second cause of action, deferring for trial the issue of his damages and the liability of defendant Stefan. Plaintiff also seeks a judgment against ISP on his sixth cause of action in the amount of $78,532.50, representing 200.5 sick days ($74,801.74) and 10 unused vacation days ($3,730.76) he had accrued. In the alternative, plaintiff seeks a salary continuance benefit of $9,700 that was approved but not paid.

After oral argument and a review of the parties' papers and the relevant statutes and case law, the motions are decided as follows: defendants' motion to dismiss is denied with respect to the second cause of action; that portion of defendant's motion to dismiss the sixth cause of action is denied only to the extent plaintiff seeks to recover $74,801.74, representing 200.5 unused accrued sick days; and plaintiff's motion is granted only insofar as it seeks that same relief.

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Giuseppe Romanello was a former executive at the New York office of defendant ISP, an Italian financial services firm. On or about January 9, 2008, plaintiff, then 52 and having worked for ISP and its predecessor company, Sanpaolo IMI S.p.A. ("SIMI"), for approximately 25 years, became unable to work due to illness. Ex. G to Stefan Aff.; Ex. J to Lambert Aff. at 6. He received several diagnoses, including depression. During the first few months of 2008, plaintiff spoke with human resources and other supervisors about his condition and desire to return to work. Plaintiff Aff., at pars. 16-20. After plaintiff was absent from work for almost five months, during which time ISP continued to pay his full salary, ISP's attorney, Richard Bertocci, Esq., sent plaintiff's attorney, Maury Josephson, Esq., a letter dated May 29, 2008 stating, inter alia, that plaintiff's Family Medical Leave Act ("FMLA") benefits were to expire on June 3, 2008 and ISP "would appreciate knowing whether [plaintiff intended] to return to work or to abandon his position." Stefan Aff., at Ex. H.

By correspondence dated June 2, 2008, Josephson responded, inter alia, that "[plaintiff] has, since on or about January 9, 2008, been suffering from severe and disabling illnesses that have prevented him, and continue to prevent him, from working in any capacity, let alone in the capacity in which he had been serving [ISP]" and that plaintiff "has not at any time evidenced or expressed an intention to abandon his position' with [ISP]. Rather, he has been sick and unable to work, with [*2]an uncertain prognosis and a return to work date that is indeterminate at this time." Stefan Aff., at Ex. I. Josephson warned that "if there is to be any severance of [plaintiff's employment relationship with ISP], it will be of [ISP's] volition * * * and [ISP] will bear any related consequences and liabilities for its termination of [plaintiff's] employment." Id.

By correspondence dated June 3, 2008, Bertocci wrote to Josephson to advise him that plaintiff was being terminated as of that date as a result of Prudential's finding that plaintiff was not entitled to short term disability ("STD") benefits. Ex. 28 to Josephson Aff. Carlo Persico, ISP's Area Manager for the Americas from 2007-2009, and Gianluca Corrias, head of ISP's New York branch, admitted that, following receipt of Josephson's June 2, 2008 letter, they did not consider any alternative to termination. Ex. M to Lambert Aff., at 86-89; Ex. P. To Lambert Aff., at 120.

On June 30, 2009, plaintiff commenced the captioned action alleging, inter alia, violations of the New York State Human Rights Law ("the NYSHRL") and the NYCHRL. Ex. A to Lambert Aff. He claimed that ISP discriminated against him when he became disabled, breached his contract of employment, and violated his human rights by terminating him. Id. He further alleged that Stefan, the former First Vice President and Head of Personnel for ISP, engaged in a campaign of unlawful conduct against him. He claimed that, from January through March of 2008, ISP gathered information about plaintiff's condition for submission to its insurer, Prudential Insurance Company ("Prudential"). Id. In the complaint, plaintiff alleged that, as of April 21, 2008, Stefan provided information regarding plaintiff's condition to Prudential with the notation "I hope that someone will review this case very carefully." Id. Plaintiff further alleged that Stefan and ISP gathered, reviewed, and misinterpreted plaintiff's confidential medical information and records and intentionally used the same to harm him. Id.

As a second cause of action, plaintiff alleged that ISP and Stefan discriminated against him pursuant to § 8-107(1)(a) of the NYCHRL by depriving him of the 200.5 sick days he had accrued prior to his termination, maliciously interfering with his application for STD and long term disability ("LTD") benefits, refusing to reasonably accommodate his disability or engage in an interactive process with him regarding reasonable accommodations, and failing to provide him with severance pay. Id. Plaintiff further claimed that Stefan discriminated against him pursuant to NYCHRL § 8-107(6) by aiding and abetting ISP in carrying out the acts prohibited by the NYCHRL. Id.

As a sixth cause of action, asserted solely against ISP, plaintiff claimed that he contracted with ISP and its predecessor corporation, SIMI, to pay him accrued sick leave of at least 200 days; salary continuation of at least six months' duration following the onset of his disability; a bonus for 2007, payable in 2008; and severance pay. Id.

On May 29, 2008, Prudential extended plaintiff's STD benefits through April 3, 2008 and terminated them as of the April 4, 2008. Stefan Aff. at par. 23 and Ex. G. At or about the same time, ISP advised plaintiff that his STD benefits ended as of April 3, 2008 and that his FMLA benefits were to expire on June 3, 2008. Ex. A to Lambert Aff. Prudential subsequently reversed its determination of May 29, 2008 and found that plaintiff was entitled to STD benefits into July of 2008 and LTD through October 27, 2008. Stefan Aff., at p. 13 n. 3.

Thereafter, ISP allegedly raised the interest rate on, and accelerated, a mortgage on plaintiff's home that had been taken out under a program offered to ISP employees. Id. ISP decided not to immediately accelerate the note but to allow plaintiff to pay interest on it until he could arrange refinancing on it. When plaintiff failed to make some of the payments on the note and ISP sought [*3]to take legal action to enforce the note, plaintiff viewed this action as discriminatory. Specifically, plaintiff cited to a November 13, 2008 email from ISP's attorney to his attorney stating that "I have not heard from you since last week when I asked to close this out. At [ISP's] instruction I am opening a litigation file for [plaintiff's] account and [it's] going to get expensive fast. This is really your client's last chance to avoid litigation." Ex. 5 to First Supp. Josephson Aff.

Further, plaintiff claimed that ISP failed to pay his bonus for 2007, divested him of 200.5 accrued sick days, 10 accrued vacation days, and failed to provide him with the proper benefits and severance package to which non-disabled employees would have been entitled. Plaintiff's Aff. at pars. 33 and 35.

Defendants subsequently moved, pursuant to CPLR 3211(a)(7), to dismiss all of plaintiff's claims [FN1] except for the sixth cause of action, which was for breach of contract. By order entered May 24, 2010 and corrected October 20, 2010, this Court (York, J.) dismissed all of these claims except the seventh cause of action, which was brought pursuant to the New York Labor Law. The Appellate Division, First Department affirmed the dismissal of all of the foregoing claims and also modified Justice York's order to dismiss the Labor Law claim. See Romanello v Intesa Sanpaolo S.p.A., 97 AD3d 449 (1st Dept 2012). The court held that ISP made "a good faith attempt to open an interactive process" with plaintiff for the purpose of reaching a mutually acceptable accommodation by way of its letter of May 29, 2008. (Id., at 451). However, it further stated that:

In a tone that can only be characterized as hostile, [Josephson's] June 2 letter to [ISP] went well beyond merely stating that plaintiff was then disabled for work in any capacity and that he would not be able to resume working for an "indeterminate" period of time. The letter suggested no time frame within which plaintiff's prognosis could be expected to be better understood and a possible date for returning to work could be usefully discussed, nor did it invite [ISP] to offer other options; to the contrary, the letter threatened litigation if its demands were not met. The letter essentially shut the door to any further discussion, instead of delivering a demand that [ISP] grant plaintiff an indefinite leave of absence or else be prepared to face a lawsuit. In other words, the letter from [Josephson] confronted [ISP] with an inflexible, categorical demand, with no room for negotiation and no suggestion of a time frame within which plaintiff would be open to revisiting the issue. By spurning in advance, and through counsel, any good faith attempt by [ISP] to engage in a bilateral, interactive process to find a way to reconcile both parties' needs, plaintiff discharged [ISP], as a matter of law, of the obligation to initiate such a process."

Romanello, 97 AD3d, supra, at 451-452.

Although the Court of Appeals affirmed the dismissal of the claim pursuant to the NYSHRL, [*4]it reinstated the claim pursuant to the NYCHRL. See Romanello v Intesa Sanpaolo S.p.A., 22 NY3d 881 (2013).In so holding, the Court of Appeals reasoned that, pursuant to the NYCHRL, it is the employer's burden to prove as an affirmative defense that the employee could not satisfy the essential requisites of the job even if a reasonable accommodation had been provided or that allowing for such an accommodation would have been an undue hardship for the employer. The Court found that, because plaintiff, through Josephson's letter, made ISP aware of his disability, and ISP did not meet its obligation under the NYSHRL to plead and prove that plaintiff could not perform his essential job functions with an accommodation, and ISP made no such allegation on its motion to dismiss, plaintiff's claim pursuant to the NYCHRL should not have been dismissed.

ISP and Stefan now move, pursuant to CPLR 3212 (Mot. Seq. 003), for summary judgment dismissing plaintiff's second cause of action (NYCHRL violations against both defendants) and sixth cause of action (breach of contract against ISP). Plaintiff moves, pursuant to the same statute (Mot. Seq. 004), for partial summary judgment against ISP on his second cause of action, deferring for trial the issue of his damages and the liability of defendant Stefan. Plaintiff also seeks a judgment against ISP on his sixth cause of action in the amount of $78,532.50, representing 200.5 sick days plus 10 unused vacation days he had accrued. In the alternative, plaintiff seeks a salary continuance benefit of $9,700 that was approved but not paid by ISP.

Defendants' Motion for Summary Judgment

In support of their motion, defendants submit, inter alia, the affidavit of Persico. In his affidavit, Persico stated that ISP was the product of the merger of two banks, ISP and SIMI, on January 1, 2007. (Persico Aff., at par. 2). Prior to the merger, both he and plaintiff worked for SIMI. SIMI had a voluntary early retirement plan. Ex. B to Persico Aff. Those who chose to avail themselves of the plan received a payout of a percentage of their unused sick leave. Id. The plan was available to employees at least 63 years old. Id. Additionally, after the merger, former SIMI employees could no longer accrue their unused sick time as they had been able to prior to the merger. Persico Aff., at par. 25(B).

After the merger, Persico kept his title as vice-president but was moved from a back office position to a front office position. Specifically, he was moved to the International Desk, or "Italian Desk" of ISP's New York office, which provided a variety of banking and merchant account services to Italian companies and their subsidiaries doing business in the United States. Plaintiff's Aff., at 7. Persico explained that ISP had to let plaintiff go because, in the judgment of he and Corrias, ISP needed a full-time executive in the position to handle its customers' needs and plaintiff was unable or unwilling to give ISP an idea of when he would be able to return to work. Persico Aff., at 17-18. He maintained that plaintiff's job was one which needed full-time attention by an experienced, bilingual executive such as plaintiff. Persico Aff., at 8. Persico maintained that plaintiff never had a written employment contract with SIMI or ISP which gave him a contractual right to a bonus in any particular amount. Persico Aff., at par. 25.

Stefan, retired since 2012, stated in an affidavit in support of defendants' motion that she had been First Vice President of Human Resources at ISP's New York office. She stated that, as of January 1, 2008, after the merger of SIMI and ISP, the ISP employee handbook governed plaintiff's employment and plaintiff had no written employment agreement. She further stated that, following the merger, ISP had a STD plan providing employees with plaintiff's seniority with a full salary [*5]continuation for up to 26 weeks if they were disabled. Ex. E to Stefan Aff. Stefan admitted in her affidavit that SIMI had allowed sick days to be accumulated without limit. Stefan Aff., at par. 14. However, stated Stefan, accumulated sick days could not be cashed out but could only be used to pay for sick days in ensuing years beyond the number of sick days to which the employee would otherwise be entitled for those years. Id., at par. 15.

Stefan testified that Prudential was designated by ISP to be its "third party administrator" to determine whether employees had disabilities and were entitled to reasonable accommodations. Ex. N to Lambert Aff. at 84-85, 90-91, 99-100, 108.

According to Stefan, after ISP received the June 2, 2008 letter from Josephson stating that it was unclear when plaintiff would return to work, Persico and Corrias, senior managers at ISP's New York branch, determined that plaintiff's position, which had been vacant for almost five months, had to be filled, and terminated his position as of June 4, 2008. Id., at par. 27. Plaintiff had been paid by ISP up until the time of his termination. Id., at par. 29. This, represented Stefan, constituted 20 weeks of payments pursuant to ISP's full salary continuance benefit plus seven days of paid sick time. Id., at par. 29.

Stefan added that, although ISP initially decided to pay plaintiff a $10,000 bonus for the year 2007, Persico and Corrias decided not to pay the bonus and instructed her to this effect. Exs. J and K to Stefan Aff.

Plaintiff testified that, after he became ill, Stefan encouraged him to apply for STD. Ex. J to Lambert Aff. at 35. His sister helped him to complete STD forms, which he gave to Stefan for submission to Prudential in or about February of 2008. Ex. J to Lambert Aff. At 35, 37, 43, 45. He sent the forms in two sets, one on February 2, 2008 and the other on March 17, 2008. Exs. 17 and 18 to Josephson Aff., respectively. Plaintiff confirmed with Stefan that she had received the forms, which contained confidential medical information. Plaintiff's Aff., at par. 15. The forms were not sent to Prudential right away due to an apparent faxing error which went unnoticed by ISP. Ex. 11 to Josephson Aff., at 148. They were finally faxed on April 22, 2008. Exs. 17 and 18 to Josephson Aff.

Giancarlo Baiocchi, head of the Italian Desk, testified that ISP was able to cover plaintiff's position while he was out on leave. Ex. Q to Lambert Aff., at 15, 90-93.After plaintiff was out about one week, he and Persico discussed a contingency plan for covering plaintiff's position. Id., at 69. They decided that the only "quick and viable and dirty solution" was to have Ettore Viazzo, a consultant, supervise the desk during plaintiff's absence. Id., at 20-21, 73-74. Persico subsequently directed Baiocchi to fill the position and the latter did so. Id., at 96. Baiocchi could not point to any customers leaving ISP due to plaintiff's absence. Id., at 90-92.

Plaintiff's Motion For Partial Summary Judgment

In support of his motion for partial summary judgment against ISP, plaintiff submits, inter alia, his own affidavit and an attorney affirmation. Plaintiff asserts that defendant cannot establish that, even with reasonable accommodation, plaintiff would not have been able to perform his job, or that the accommodation needed, including an indefinite leave of absence, would have posed an undue hardship to ISP.Plaintiff claims that, since Prudential determined that he was able to return to work as of October 27, 2008, an accommodation of four or five additional months (after the date he was terminated in June of 2008) would have permitted plaintiff to return to work for ISP. [*6]Plaintiff claims that, rather than considering such an accommodation, ISP immediately decided to fire him in violation of the NYCHRL, acknowledging that it did not consider contacting plaintiff directly or through counsel to ascertain how much time he needed to return to work or how much money it would cost to hold his position open. Plaintiff further asserts that ISP would have sustained no hardship keeping his position open since a contingency plan had been put into place during his absence.

Upon being granted summary judgment on his breach of contract claim, plaintiff asserts that he is entitled to $78,532.50, representing 200.5 unused sick days and 10 unused vacation days. In the alternative, he claims that he is entitled to $9,700 in salary continuance benefits.

THE PARTIES' CONTENTIONS:

Defendants' Motion For Summary Judgment

Defendants assert that plaintiff was terminated solely because he was unwilling or unable, in response to a specific request, to give ISP any idea of when, if ever, he might be able to return to work. Persico Aff., at par. 18. They maintain that The Court of Appeals' interpretation of plaintiff's June 2 letter as asking for "an indefinite leave of absence" constitutes the law of the case and that all that remains to be determined on the NYCHRL cause of action is if ISP were asked to grant plaintiff an indefinite leave to accommodate his disability, which it maintains it was not, whether it would have been an "undue hardship" for ISP to keep his position open indefinitely such that the said accommodation would not have been reasonable. Specifically, ISP asserts, inter alia, that plaintiff had been absent from his executive-level position for close to five months, which position was responsible for 200-250 daily transactions on more than 200 accounts; he had not provided any meaningful information regarding his condition or prospects for his return; and, in ISP's judgment, plaintiff's position needed to be filled permanently by a similarly experienced, bilingual executive who could be entrusted with signature authority to move funds.

Further, defendants assert that plaintiff was terminated because he could not perform "the essential requisites of the job" as early as June of 2008, when his employment was terminated, at which time he was unable to work in any capacity. Ex. J to Lambert Aff., at 134, 137. In fact, plaintiff admitted he was unable to work until the fall of 2008 and that when he did so, he worked as a gardener for the Village of Lawrence. Id., at 192, 197.

Defendants also maintain that, although they made a good faith attempt to open an interactive process with plaintiff for the purpose of reaching a mutually acceptable accommodation, plaintiff, by spurning ISP, discharged ISP of any obligation to continue any efforts to make such an accommodation, and that the First Department's finding in this regard is law of the case.In any event, urge defendants, further efforts would have been futile since plaintiff's attorney stated in a July 26, 2008 letter to Prudential that plaintiff still could not work (Ex. J to Lambert Aff., at 162-165; Ex. T); plaintiff's attorney represented to Prudential on February 6, 2009 that plaintiff was still unable to perform his duties as a bank executive (Ex. U to Lambert Aff., at 8-9); and plaintiff admitted at his deposition that he could not have returned to work until sometime between September and November of 2008. Ex. J to Lambert Aff., at 134, 138, 192-193, 197.

Defendants also argue that they are entitled to the dismissal of plaintiff's sixth cause of action, for breach of contract, since he had no written employment contract and thus had no contractual right to be paid for accrued sick time. They assert that SIMI's employee manual provided [*7]for a lump sum payout of unused sick time only for those who, unlike plaintiff, voluntarily retired.

Further, defendants assert that plaintiff, who was entitled to be paid a maximum of 26 weeks' salary continuation if disabled within the terms of ISP's STD plan, was paid in full for the entire period he was absent from work from January 9, 2008 until his termination in June of 2008, approximately 20 weeks, pursuant to ISP's salary continuance benefit, plus seven days of sick pay at the beginning of his absence. Stefan Aff., at par. 29; Persico Aff., at par. 15. They insist, however, that, although Prudential subsequently reversed its determination in February of 2009 and decided, based on additional medical information provided by plaintiff's attorney in March of 2009 that plaintiff was entitled to retroactive STP benefits through July of 2008, plaintiff was not entitled to an additional six weeks of salary continuance as a result of the foregoing because he not an employee of ISP after the date of his termination.

At the very least, urge defendants, plaintiff's claim of $8 million for punitive damages (Ex. A to Lambert Aff.), increased in the bill of particulars (Ex. E to Lambert Aff.) to $14 million, must be dismissed since plaintiff did not establish any evidence of evil intent by defendants.

Defendants also claim that the second cause of action should be dismissed as against Stefan since it was Persico and Corrias, and not her, who had the authority to terminate plaintiff. Persico Aff., at 17-18; Stefan Aff., at 27.

In opposition to the motion, plaintiff asserts that defendants' motion must be denied since they have failed to sustain their burden that extending plaintiff's leave for a few additional months, or even indefinitely, would have caused the $80 billion bank, the fourth largest in the Eurozone, with over 100,000 employees, undue hardship.Plaintiff maintains that, although defendants assert that they could not continue to operate without plaintiff (see Persico Aff. at par. 20), ISP was able to operate by transferring some of plaintiff's duties to the operations department and had a contingency plan to address fund transfers. Ex. P to Lambert Aff., at 84, Ex. Q to Lambert Aff. at 69-73.Plaintiff urges that, since it was ISP's policy not to replace employees on disability leave (Ex. N to Lambert Aff. at 210) and Prudential retroactively determined on March 25, 2009 that plaintiff was disabled as of October 27, 2008 (Ex. 12 to Josephson Aff., at 31), defendants' motion must be denied. Plaintiff further asserts that, although it was ISP's policy to attempt to keep a position open for one on disability, even though there was no guarantee that the position would be held open (Josephson Aff. Ex. 49), ISP did not even make an attempt to hold the plaintiff's position open.

Relying on Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 (2014), plaintiff maintains that the NYCHRL "unquestionably forecloses summary judgment where the employer has not engaged in a good faith interactive process regarding a specifically requested accommodation." Id., at 837-838. He maintains that, since he was fired less than 24 hours after his attorney sent the June 2, 2008 letter, defendants made no effort to engage in an interactive process. This, urges plaintiff, is exemplified by Persico's affidavit, in which he states that "[a]s far as the bank was concerned, there was nothing more to discuss - the bank had to move on." Persico Aff., at 20.

Plaintiff further maintains that defendants' conduct smacks of malice or reckless indifference to plaintiff's rights, thereby warranting the imposition of punitive damages. Specifically, plaintiff claims that defendants failed to submit plaintiff's STD claim forms to Prudential for over two months and, when plaintiff's claim was denied due to a lack of documentation, ISP used the denial as a basis [*8]for terminating plaintiff; that ISP repeatedly urged Prudential to deny plaintiff's disability claims before and after his employment; failed to accommodate plaintiff's disability; and threatened to foreclose on plaintiff's home after he was terminated. Plaintiff maintains that the May 29, 2008 letter sent by defendants' counsel, demanding that plaintiff return to work within five days, and stating that defendants had no information regarding plaintiff's condition other than Prudential's decision, which, he asserts, is contradicted by the facts, evinces defendants' malice.

Additionally, plaintiff asserts that punitive damages are warranted because Stefan assembled a "dossier" of documents in an attempt to establish that plaintiff was not disabled, or that ISP had fulfilled its obligations under the law by providing him with FMLA leave. They further claim that, soon after ISP terminated plaintiff's employment, it threatened to foreclose on a mortgage on his home he had taken pursuant to a pre-merger employee loan program of SIMI. In a letter dated November 13, 2008, Bertocci threatened Josephson that he was opening a litigation file for plaintiff's account, that "it's going to get expensive fast", and that this was plaintiff's "last chance to avoid litigation." Ex. 5 to First Josephson Supp. Aff.

In opposition to defendants' motion for summary judgment, plaintiff also argues that Stefan is not entitled to summary judgment dismissing the complaint against her since issues of fact exist regarding whether she was liable for plaintiff's damages in her individual capacity.

In reply, defendants argue, inter alia, that the First Department's ruling that any further dialogue by ISP would have been pointless is law of the case. They further assert that they made a detailed showing of why an indefinite leave of absence by plaintiff would have been an undue hardship to ISP: specifically that plaintiff was one-third of the experienced bilingual team on the small but important International Desk at ISP's New York branch and that he handled a large number of transactions for several hundred accounts. Persico Aff. At pars. 4-9, 17-20; Ex. Q to Lambert Aff. at 13-20, 61-69. They assert that plaintiff has failed to raise any issue of fact warranting the denial of their motion.

Defendants further argue that ISP's failure to send plaintiff's STD forms to Prudential was inadvertent and that plaintiff's claim for punitive damages based on this "slip-up" is frivolous. Additionally, they assert that the mortgage note he signed while employed by SIMI gave the bank the right to change the interest rate and accelerate the maturity date upon termination (Exs. K and L to Lambert Reply Aff.) and that maturity dates on loans to other SIMI employees whose employment ended was also accelerated by the bank. Ex. N to Lambert Reply Aff.

Plaintiff's Motion For Partial Summary Judgment

Plaintiff claims that he has established his prima facie entitlement to summary judgment pursuant to the NYCHRL. Relying on Jacobsen v New York City Health & Hosps. Corp., supra, he argues that he suffers from a disability which caused the behavior for which he was terminated. In support of his argument, he cites to ISP's interrogatory response (Ex. 31 to Josephson Aff.) conceding that plaintiff had a disability within the meaning of the NYCHRL. He further relies on the testimony of Persico (Ex. 10 to Josephson Aff. at 84-88) and Corrias (Ex. 8, at 119-120) that he was terminated due to the absence from work caused by his disability.

In opposing his motion, urges plaintiff, defendants have failed to establish the requisite affirmative defenses that, even with reasonable accommodation, plaintiff could not have returned to his job, or that the accommodation would have caused ISP undue hardship. Plaintiff further [*9]argues that ISP's affirmative defenses fail as a matter of law. He claims that a retrospective analysis shows that he could have returned to work within six months, as he was able to return to work without restriction on October 27, 2008. Plaintiff further asserts that ISP, the fourth largest bank in the Eurozone with over 110,000 employees, would not have suffered an undue hardship by holding plaintiff's position open and in fact had a contingency plan reallocating plaintiff's responsibilities to the operations department while he was absent. Most importantly, argues plaintiff, ISP did no analysis of whether hardship would result from terminating plaintiff.

As a result of establishing his case, plaintiff argues that he is entitled to a judgment of $78,532.50 to compensate him for 200.5 accrued sick days and 10 vacation days which ISP did not allow him to use to provide paid leave during the period of his disability. He claims that this additional leave would have allowed him the opportunity to return to his position.[FN2]

At a minimum, argues plaintiff, he is entitled to $9,700, the unpaid balance of a salary discontinuance benefit for which ISP approved plaintiff but did not pay. Specifically, plaintiff claims that ISP advised plaintiff in writing of his eligibility for salary continuance to run from January 9, 2008 through July 9, 2008, dependent upon Prudential's approval of plaintiff's disability benefits claims. Prudential began paying benefits through April 4, 2008, but then denied the payment of further disability benefits on May 29, 2008. However, on March 25, 2009, Prudential revised its earlier decision and awarded a combination of additional STD and LTD benefits to plaintiff retroactive to April 4, 2008 and continuing through October 27, 2008. Thus, urges plaintiff, he is entitled to $9,700 in salary continuance, plus pre-judgment interest, which ISP failed to pay him for 26 working days from June 4 through July 9, 2008.

In opposition to the motion, defendants argue that plaintiff's motion must be denied since the Appellate Division, First Department held that the May 29, 2008 letter sent by ISP's attorney to plaintiff's attorney constituted "undisputed documentary evidence" of "a good faith attempt to open an interactive process with plaintiff for the purpose of reaching a mutually acceptable accommodation" and that, as a matter of law, plaintiff's June 2, 2008 response to that letter "abruptly cut off the interactive process that [ISP] tried to initiate", thereby rendering any further effort at an interactive process by ISP futile. Defendants argue that this appellate ruling is law of the case.

Defendants also maintain that the only possible accommodation as of June 2008 was indefinite leave and, after Josephson's response to Bertocci's letter, and as the First Department held, it would have been pointless to pursue this option.

Defendants also argue that plaintiff cannot argue that it would not have been an undue hardship to keep his position open indefinitely simply because it was one of the largest banks in Europe. They assert that ISP's Italian Desk at its New York branch, its only branch in the United States, handled hundreds of transactions, had just one officer assigned to it, and ISP determined that an indefinite leave for plaintiff would have presented an undue hardship for the company.

Defendants also assert that, by March 25, 2009, it was too late for plaintiff to claim a salary [*10]continuance since his employment had been terminated. In an affidavit in opposition to plaintiff's motion, Stefan averred that Prudential was the administrator of the disability insurance plan for ISP's New York branch and it was Prudential's responsibility for determining an employee was disabled and qualified for benefits within the terms of the plan documents.

Further defendants maintain that, although plaintiff claims that ISP tried to persuade Prudential to deny plaintiff's claim, this claim must be disregarded by this Court since plaintiff's claim for tortious interference with plaintiff's rights under the contract of disability insurance was dismissed. Ex. F to Lambert Aff.

Defendants also argue that plaintiff is not entitled to summary judgment on his claim for breach of contract. First, defendants maintain that he is not entitled to be paid for his 200.5 unused sick days. Defendants rely on plaintiff's admission that plaintiff does not "contend he had a contractual right to be paid for accrued sick days upon termination." Plaintiff's Memo. of Law at p. 28. They further assert that both the ISP handbook (Ex. B to Stefan Aff., at 12) and the SIMI handbook (Ex. C to Stefan Aff., at 24) provided that employment could not be guaranteed after 12 weeks of disability leave.

Additionally, defendants assert that plaintiff is not entitled to ten days of unused vacation pay since he did not allege such damages in the complaint.

They further maintain that plaintiff's claim for the payment of additional salary continuance in the amount of $9,700 for the period after his termination should be denied since ISP stopped paying his salary continuance as of June 4, 2008, as of which date he was no longer an employee. Defendants maintain that plaintiff was paid full salary continuance during the approximately 20 weeks that he was absent from work but once his employment was terminated, he was no longer entitled to that benefit regardless of Prudential's revised determination regarding plaintiff's disability in March of 2009.

In reply, plaintiff argues that he has established a prima facie case of discrimination pursuant to the NYCHRL and that, since defendants have failed to prove an affirmative defense, his motion must be granted.Plaintiff asserts that defendants failed to establish undue hardship as a matter of law.

LEGAL CONSIDERATIONS:

"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 . . . ." Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006). The motion must be denied if there is any doubt about the existence of a triable issue of fact. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Defendants' Motion For Summary Judgment

Plaintiff's Second Cause of Action (NYCHRL Against ISP and Stefan)

Section 8-107(1)(a) of the NYCHRL makes it an unlawful discriminatory practice for an employer to discriminate in terms and conditions of employment or discharge an employee because of disability. A "disability" is defined by § 8-102(16) of the NYCHRL as "any physical, medical, [*11]mental or psychological impairment." Section 8-107(15)(a) of the NYCHRL provides that an employer has the obligation to "make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job...provided that the disability is known or should have been known by the [employer]," and under § 8-107(15)(b) an employer may establish as an affirmative defense that "the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question." Section 8-102(18) of the NYCHRL defines "reasonable accommodation" as one "that can be made that shall not cause undue hardship in the conduct of the employer's business. The employer shall have the burden of proving undue hardship." Pursuant to the NYCHRL, there is no accommodation, including indefinite leave or any other need created by a disability, which is excluded from the category of reasonable accommodation. Romanello, 22 NY3d supra, at 884, citing Phillips v City of New York, 66 AD3d 170, 176 (1st Dept 2009).

Courts are hesitant to grant summary judgment in employment discrimination cases since a plaintiff cannot often show direct evidence of an employer's discriminatory intent. See Ferrante v American Lung Assn., 90 NY2d 623, 631 (1997); Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 43-44 (1st Dept 2011). "Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo v Prudential Residential Servs. Limited Partnership, 22 F3d 1219, 1224 (2d Cir 1994).Although "the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiffs" (Stephenson v Hotel Employees & Restaurant Employees Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006]), "a plaintiff is not required to prove his claim to defeat [defendant's motion for] summary judgment." Ferrante, 90 NY2d supra at 630.

To establish a prima facie case of employment discrimination, a plaintiff must establish that: (1) he was a member of a protected class; (2) was qualified to hold his position; (3) was terminated from employment or suffered an adverse employment action; and (4) the termination or adverse action occurred under circumstances giving rise to an inference of discrimination. See Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 (2004); Ferrante, 90 NY2d, supra at 629.Plaintiff's burden in this regard has been described as "de minimus" or "minimal." See St. Mary's Honor Ctr. v Hicks, 509 US 502, 506 (1993); Brathwaite v Frankel, 98 AD3d 444, 445 (1st Dept 2012).Once plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to rebut the presumption of discrimination by demonstrating that there existed a legitimate and non-discriminatory reason for its employment decision. If such a showing is made by the employer, the burden shifts back to plaintiff to prove that the employer's reason was a pretext for the discrimination. See Forest, 3 NY3d supra at 304-305; Ferrante, 90 NY2d supra at 629-630.

"[W]here a defendant on a summary judgment motion has produced evidence that justifies its adverse action against the plaintiff on nondiscriminatory grounds . . . [t]he plaintiff must either counter the defendant's evidence by producing pretext evidence (or otherwise), or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination." Bennett, 92 AD3d, supra at 39. "[E]vidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied." Id., at 44.

Here, plaintiff made the minimal showing necessary to establish a prima facie case of [*12]employment discrimination by demonstrating that he was terminated from his position while disabled and that his disability may have been the cause for the termination. The fact that he was terminated without the opportunity to engage in any interactive process gives rise to the inference of discrimination. Although this Court notes that such an interactive process would likely have been futile given the hostility of Josephson's June 2 letter, there is no question that such a process did not occur.

Since plaintiff made this showing, the burden shifted to ISP to show a legitimate and non-discriminatory reason for the termination. ISP did so here by explaining that the indefinite leave of absence of plaintiff would have been an undue hardship to ISP: plaintiff was one-third of the experienced bilingual team on the small but important Italian Desk and he handled a large number of transactions for several hundred accounts. Persico Aff., at pars. 4-9, 17-20; Ex. Q to Lambert Aff., at 13-20, 61-69. Once this showing was made, the burden shifted back to plaintiff to prove evidence of pretext for ISP's employment action. Plaintiff did so by demonstrating that ISP relied on Prudential's decision, dated May 29, 2008, ending plaintiff's STD benefits as of June 4, 2008, in terminating plaintiff. Ex. G to Stefan Aff.Given this evidence of a possible pretextual motive, defendants' motion for summary judgment must be denied. See Bennett, 92 AD3d, supra at 39.Additionally, questions of fact exist regarding whether it would have been an undue hardship for ISP to keep plaintiff's position open indefinitely. Whether an accommodation would be effective and whether it would cause undue hardship for an employer are issues which are "singularly case-specific, further illustrating the need for an individualized, interactive fact-specific process." Phillips v City of New York, 66 AD3d 170, 180 (1st Dept 2009). "The issue of whether an accommodation is reasonable is normally a question of fact, unsuited for a determination on summary judgment." Scalera v Electrograph Sys., Inc., 848 F Supp 2d 352, 367 (EDNY 2012), quoting Canales-Jacobs v New York State Office of Court Admin., 640 F Supp 2d 482, 500 (SDNY 2009). Although plaintiff claims that ISP was a large and wealthy bank with thousands of employees which could well afford a temporary substitute for plaintiff, and ISP in fact concedes that it was able to substitute for plaintiff during his absence (Ex. Q to Lambert Aff., at 15, 90-93, 96), ISP further asserts, as noted above, that the Italian Desk was a specialized position which required a bilingual banker with particular experience such as plaintiff (Persico Aff., at 8). This, too, precludes the granting of summary judgment to defendants.

Similarly, whether the claim against Stefan is subject to dismissal is an issue of fact. Section 8-107 of the NYCHRL extends potential liability to "an employer or an employee or agent thereof." "Thus, the NYCHRL includes fellow employees under the tent of liability, but only where they act with or on behalf of the employer in hiring, firing, paying, or in administering the "terms, conditions or privileges of employment" - - in other words, in some agency or supervisory capacity' (Priore v New York Yankees, 307 AD2d 67, 74 [1st Dept 2003])." Hefti v The Brand Union Co., Inc., 2014 NY Misc LEXIS 2971 (Sup Ct New York County 2014); see also Sanabria v M. Fabrikant & Sons, Inc., 2008 NY Misc LEXIS 2400 (Sup Ct New York County 2008). Pursuant to NYCHRL § 8-107(6), an individual may be held liable for aiding or abetting illegal discriminatory conduct even in the absence of his or her employer's liability. See Sanabria, supra. Thus, the jury in this case must determine whether Stefan committed any discriminatory acts against plaintiff and, if so, whether such were committed in the aforementioned fashion.

For example, plaintiff asserts that Stefan sought to undermine plaintiff's disability claim with [*13]Prudential by advising Prudential on April 28, 2008, inter alia, that plaintiff took a lot of sick time at the end of 2007 and that his diagnosis was questionable. Ex. 13 to Josephson Aff., at 13; Ex. 23 to Josephson Aff. However, on May 1, 2008, Stefan advised Prudential she believed plaintiff's claim was being handled appropriately. Ex. 23 to Josephson Aff. Thus, at a minimum, a question of fact exists regarding whether Stefan committed any wrongdoing in connection with the processing of plaintiff's claim.

Plaintiff's Sixth Cause of Action (Breach of Contract Against ISP)

Defendants' motion to dismiss the sixth cause of action, for breach of contract, is denied insofar as plaintiff seeks recovery for unused accrued sick time. Although an employee cannot sue an employer for breach of contract based on provisions in an employment manual where the manual provides that the employee is "at will", plaintiff's contract claim is permissible since it is for benefits and not for termination. Ex. B to Stefan Aff., at 5; Ex. A to Lambert Aff. See Miloscia v B.R. Guest Holdings, LLC, 94 AD3d 563, 564 (1st Dept 2012).

Plaintiff avers in his affidavit in that he accrued 200.5 sick days and 10 vacation days as of the date of his termination. Plaintiff's Aff., at par. 36. He claims that, based on his annual salary of $97,000 (a weekly rate of $1,865.38), he would have been entitled to the value of $78,532.50 ($74,801.74 for accrued sick time and $3,730.76 for unused vacation time) had he used these days. Id.

Although ISP's policy changed after its merger with SIMI to prohibit sick time from being carried forward to future years, Stefan did not dispute that it had been SIMI's policy to allow sick time to be accrued prior to the merger. Stefan Aff. at par. 14. "Where [a] statute or contract provides that [an] employee may accumulate his sick leave with cash on termination', the sick benefit is not contingent, but is vested as soon as the sick leave is accumulated. However, where [as here] there is no provision for a cash payment on termination these sick leave benefits are contingent upon the employee becoming sick during the term of employment and they are lost upon termination of the employee, or at least upon his termination while in a healthy condition (citations omitted)." (emphasis added). Christian v County of Ontario, 92 Misc 2d 51, 53 (Sup Ct Ontario County 1977). Since the plaintiff herein was not terminated while in a healthy condition, Christian dictates that he be entitled to be compensated for the sick leave he had accrued prior to his dismissal.Therefore, plaintiff is entitled to $74,801.74 on his breach of contract claim for 200.5 days of unused sick leave accruing until the date of his termination.

Plaintiff is not entitled to any award for unused vacation time. "The determination as to whether a former employee is entitled to be paid for accrued vacation time is governed by the contract between the parties (citations omitted)." Steinmetz v Attentive Care, Inc., 39 Misc 3d 148(A) (App Term 2d Dept 2013). Here, ISP's employee handbook provided that all vacation had to be used within the calendar year and, under certain limited circumstances, could be carried over to the next year. Ex. B to Stefan Aff., at 13-14. However, since nothing in the handbook provides for the payment of accrued vacation time, plaintiff may not recover this amount. Additionally, plaintiff was awarded seven days of vacation time by ISP.

At a minimum, plaintiff asserts that he is entitled to $9,700, the unpaid balance of a salary discontinuance benefit for which ISP approved plaintiff but did not pay. However, since plaintiff seeks this relief as an alternative to the 200.5 days of accrued sick time, which, as noted above, has [*14]been awarded, this Court need not address defendants' contention regarding this amount and, as noted above, that branch of plaintiff's motion for summary judgment seeking to recover this salary continuance benefit is denied.

Punitive Damages

In analyzing punitive damages, the same "federal standard applies . . . under the [NYCHRL]" as well as under federal law. Mac Millan v Millenium Broadway Hotel, 873 F. Supp. 2d 546, 563 (SDNY 2012) (quoting Farias v Instructional Sys., Inc., 259 F3d 91, 101 (2d Cir 2001). Plaintiff's punitive damages award thus turns on whether the evidence supports an inference of "intentional discrimination . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" Id., quoting Zimmerman v Assocs. First Capital Corp., 251 F3d 376, 384 (2d Cir 2001) (internal quotation marks omitted). That "requisite state of mind may be inferred from the circumstances" (Manzo v Sovereign Motor Cars, Ltd., No. 08 Civ. 1229, 2010 US Dist LEXIS 46036, 2010 WL 1930237, at *2 (EDNY May 11, 2010), and may be proved where "[e]gregious or outrageous acts" themselves "support[] an inference of the requisite evil motive." Mac Millan, 873 F Supp 2d at 563, quoting Hill v Airborne Freight Corp., 212 F Supp 2d 59, 75 (2d Cir 2002).

Here, plaintiff's punitive damages claim must be dismissed since ISP has established as a matter of law that it did not have the requisite evil motive warranting such a penalty. Indeed, as noted above, ISP kept plaintiff's position open for five months and paid him in full before asking plaintiff when he would return. It was only after plaintiff's counsel responded that plaintiff would be out for an "indeterminate" period and plaintiff made it clear that he would not engage in a good faith interactive process that plaintiff was terminated.

Plaintiff's claim for punitive damages is based largely on speculation. For instance, plaintiff asserts that, when Stefan submitted his disability claim to Prudential, she wrote that "I hope that someone will review this case very carefully." Ex. A to Lambert Aff. Although plaintiff attributes malicious intent to this comment, there is absolutely no evidence supporting his contention. Similarly, although Stefan concededly failed to send plaintiff's disability paperwork to Prudential immediately due to an "administrative error" (Stefan Aff., par. 23, n. 2), there is no proof that this was anything other than inadvertent and the evil intent needed to establish punitive damages cannot be read into such an oversight.

Plaintiff also seeks to impose punitive damages against ISP for impermissible activity. Specifically, plaintiff claims that ISP acted improperly by trying to accelerate payment of plaintiff's mortgage. However, this was clearly permitted by the mortgage note plaintiff signed while employed by SIMI, which gave the bank the right to change the interest rate and accelerate the maturity date (Exs. K and L to Lambert Reply Aff.). Further, loans were accelerated against other employees of the bank as well. Ex. N to Lambert Reply Aff.

Plaintiff's Motion For Partial Summary Judgment

Plaintiff's motion for partial summary judgment on his second cause of action is denied. Although defendants did not engage in good faith interactive efforts to reasonably accommodate plaintiff, it is evident that such efforts would have been futile given plaintiff's preemptive notification that he would not engage in such a process. See Witchard v Montefiore Med. Ctr., 103 [*15]AD3d 596 (1st Dept 2013), citing Romanello v Intesa Sanpaolo S.p.A., 97 AD3d 449, at 451-452, supra; Matter of Vinikoff v New York State Division of Human Rights, 83 AD3d 1159 (3d Dept 2011).[FN3] Although defendants claim that the holding of the Appellate Division in Romanello, 97 AD3d 449, supra, is law of the case, this argument is without merit, since that decision involved a motion to dismiss pursuant to CPLR 3211(a)(7) and the instant motion is one for summary judgment. See Beach v Touradji Capital Mgmt., L.P., ___AD3d___, 7 NYS3d 895 (1st Dept 2015).Nevertheless, this Court agrees with the reasoning of the First Department that it would have served no purpose to engage in an interactive process with plaintiff's counsel after receiving the overtly hostile June 2 letter from plaintiff's counsel.

Plaintiff's motion for summary judgment on his sixth cause of action is granted to the extent of awarding him $74,801.74, representing 200.5 days of sick time which accrued until the date of his termination. See Christian v County of Ontario, supra. Summary judgment on plaintiff's sixth cause of action is otherwise denied.As noted above, plaintiff is not entitled to reimbursement for unused vacation time. See Steinmetz v Attentive Care, Inc., supra. Additionally, having awarded plaintiff compensation for unused accrued sick time, there is no need to address his alternate prayer for relief, i.e., salary continuance.

Therefore, in accordance with the foregoing, it is hereby:

ORDERED that the branch of defendants' motion seeking dismissal of plaintiff's second cause of action pursuant to the NYCHRL is denied; and it is further,

ORDERED that the branch of defendants' motion seeking dismissal of that portion of plaintiff's sixth cause of action for breach of contract is denied insofar as plaintiff is entitled to judgment awarding him $74,801.74 representing 200.5 sick days accrued prior to his termination; and it is further,

ORDERED that the branch of defendants' motion seeking dismissal of that portion of plaintiff's sixth cause of action for breach of contract seeking compensation for unused vacation time is granted; and it is further,

ORDERED that the branch of defendants' motion seeking dismissal of that portion of plaintiff's sixth cause of action for breach of contract seeking salary continuation in the amount of $9,700 is granted; and it is further,

ORDERED that the branch of defendants' motion seeking dismissal of plaintiff's claim for punitive damages is granted; and it is further,

ORDERED that the branch of plaintiff's motion seeking summary judgment on his second cause of action pursuant to the NYCHRL is denied; and it is further,

ORDERED that the branch of plaintiff's motion seeking summary judgment on his sixth cause of action for breach of contract is granted to the extent of awarding plaintiff $74,801.74, representing 200.5 sick days accrued prior to his termination; and it is further,

ORDERED that the branch of plaintiff's motion seeking summary judgment on his sixth cause of action for breach of contract is denied to the extent it seeks compensation for unused vacation time; and it is further,

ORDERED that the branch of plaintiff's motion seeking summary judgment on his sixth cause of action for breach of contract is denied to the extent it seeks benefits for salary continuance; and it is further,

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further,

ORDERED that the parties are to appear for a settlement conference on September 9, 2015 at 2:30 p.m. at 80 Centre Street, Room 280; and it is further,

ORDERED that this constitutes the decision and order of the court.

Dated: July 28, 2015

ENTER:

_________________________

KATHRYN E. FREED, J.S.C. Footnotes

Footnote 1:These included discrimination on the basis of disability and retaliation pursuant to the NYSHRL (first and third causes of action); discrimination on the basis of disability and retaliation in violation of the NYCHRL (second and fourth causes of action); tortious interference with his contract of insurance with Prudential (fifth cause of action); breach of contract (sixth cause of action); unlawful withholding of wages (seventh cause of action); defamation (eighth cause of action); and violation of his medical privacy (ninth cause of action).

Footnote 2:Plaintiff concedes that he does not assert that he had a contractual right to be paid for accrued sick days upon termination. Rather, he contends that what he had accrued could not be taken away retroactively to deny him the right to use 200.5 sick days in the event he became ill. See Plaintiff's Memo. Of Law In Opp., at p. 28.

Footnote 3:Although this Court notes that plaintiff established the de minimus showing of a prima facie case of employment discrimination, this is clearly not the same showing as establishing a party's entitlement to summary judgment as a matter of law pursuant to CPLR 3212.