Best v. Peninsula New York Hotel Management Inc.

309 A.D.2d 524, 765 N.Y.S.2d 33, 2003 N.Y. App. Div. LEXIS 10357

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 2003
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered September 26, 2002, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff fails to adduce evidence sufficient to raise a triable issue as to whether defendant’s proffered reason for not promoting him, namely his lack of an open consultative management style, was pretextual. There is no showing that such criterion for promotion was contrived to keep plaintiff from getting the job, or that defendant’s assessment of plaintiff’s management style was false. Notably, defendant rejected two more experienced Caucasian applicants on the basis that they too lacked the open management style that defendant was seeking. Plaintiff’s assertions of racial animus are conclusory (see Jordan v American Intl. Group, 283 AD2d 611 [2001], lv dismissed 97 NY2d 743 [2002]; Broome v Keener, 236 AD2d 498, 499 [1997]), and the hearsay statements of his coworkers that he did not get the promotion because of his race lack probative value (see Schwaller v Squire Sanders & Dempsey, 249 AD2d 195, 197 [1998]). Plaintiff’s claim for constructive discharge was also properly dismissed, there being no evidence that his work conditions became intolerable after he was denied the promotion or that the failure to promote him was a career-ending move (see Fischer v KPMG Peat Marwick, 195 AD2d 222, 225 [1994]; Alleyne v Four Seasons Hotel — N.Y., 2001 WL 135770, *14, 2001 US Dist LEXIS 1503, *43-44 [SD NY, Feb. 15, 2001], affd 25 Fed Appx 74 [2002]; Holbrook v Reichhold Chems., Inc., 735 F Supp 121, 126-127 [SD NY 1990]). Concur— Buckley, P.J., Nardelli, Mazzarelli, Ellerin and Lerner, JJ.