DiGeronimo v. First Nationwide Bank

209 A.D.2d 575, 619 N.Y.S.2d 640, 5 Am. Disabilities Cas. (BNA) 199, 1994 N.Y. App. Div. LEXIS 11527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1994
• Status: Published

Opinion

—In an action to recover damages for wrongful dismissal, the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 1, 1992, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Executive Law § 296 permits the dismissal of an employee who happens to have a disability when the disabling condition prevents the employee from reasonably performing his job (see, Matter of Antonsen v Ward, 77 NY2d 506; Matter of Miller v Ravitch, 60 NY2d 527; Matter of Obas v Kiley, 149 AD2d 422). Here, because of a non-job related automobile accident, the plaintiff suffered injuries which he concedes often rendered him totally unable to perform his work. Under these circumstances, the defendant was permitted to dismiss him based on his excessive absences and unsatisfactory performance.

Since the plaintiff failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which would require a trial of the action (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557), the Supreme Court erred in denying the defendant’s motion for summary judgment dismissing the complaint. Bracken, J. P., Lawrence, Friedmann and Goldstein, JJ., concur.