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PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, in an extensive opinion by Justice Friedman, determined plaintiff’s age discrimination and breach of contract causes of action should be dismissed. Plaintiff’s position at a medical school was eliminated as part of a phasing out of her department and her age was not demonstrated to be a factor in the decision-making process. In addition, the breach of contract cause of action was based on a provision in the faculty handbook which did not apply to plaintiff:

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In this action for age discrimination in violation of the New York City Human Rights Law (NYCHRL) … and for breach of contract, plaintiff, a former member of the radiology department of defendant medical school and hospital, challenges defendant’s decision not to renew her employment at the expiration of the term of her last appointment. Although Supreme Court assumed (as do we) that plaintiff carried her “de minimis” burden of establishing a prima facie case of age discrimination … , the court correctly determined that plaintiff, in response to defendant’s evidence of legitimate, nondiscriminatory reasons for the challenged employment action, failed to present any evidence raising a triable issue as to whether bias against employees of her age played a role in that decision … .

… [D]efendant established that the non-specialized section of the radiology department in which plaintiff worked, which produced no research, was phased out as part of a restructuring of the department, at a time of financial constraint, to achieve greater focus on the specialized, research-producing sections of the department. Defendant further established that, as part of this restructuring, it retained three physicians from plaintiff’s section, each of whom was of approximately the same age as plaintiff (60), and reassigned them to specialized departments. Plaintiff, however, was reasonably deemed to lack the specialized expertise and the proclivity for research that defendant deemed necessary to maintain its status as a top-tier academic radiology department. Not only did plaintiff fail to present any evidence casting doubt on this explanation, she failed to present any evidence, either direct or circumstantial, suggesting that bias against employees of her age was even a partial motive for the ending of her employment. Hamburg v New York Univ. Sch. of Medicine, 2017 NY Slip Op 06635, First Dept 9-26-17

 

EMPLOYMENT LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/HUMAN RIGHTS LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/AGE DISCRIMINATION (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))

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STATEMENTS ATTRIBUTED TO DEFENDANT CONSTITUTED NONACTIONABLE OPINION; TO THE EXTENT ANY OF THE STATEMENTS COULD BE REGARDED AS FACT RATHER THAN OPINION, THE STATEMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF DID NOT DEMONSTRATE THE STATEMENTS WERE MADE WITH ACTUAL MALICE (FIRST DEPT). ​
TERMS OF CONTRACT WERE NOT ABSOLUTE AND UNCONDITIONAL, MOTION TO DIMSISS BREACH AND REPUDIATION OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.
DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT).
ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT).
UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT).
THE DENIAL OF A MOTION TO PRECLUDE EVIDENCE WAS NOT AN APPEALABLE ORDER (FIRST DEPT).

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