Gearity v. Golden

39 A.D.3d 343, 834 N.Y.S.2d 138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 5, 2006, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants provided legitimate, nondiscriminatory reasons for plaintiff’s termination, and plaintiff did not meet her consequent burden to show that those reasons were false or unworthy of belief and that the actual reason was her age (see Ferrante v American Lung Assn., 90 NY2d 623, 629-630 [1997]; Hardy v General Elec. Co., 270 AD2d 700 [2000], lv denied 95 NY2d 765 [2000]). Indeed, the evidence on the motion discloses that defendant Dr. Golden hired plaintiff when she was 60, and persuaded her to stay on when she tendered her resignation at age 63, after a dispute between her and the office manager (see Moon v Clear Channel Communications, 307 AD2d 628, 632 [2003]). In addition, while defendant medical practice may have hired another employee shortly before plaintiffs termination, the record does not substantiate plaintiffs assertion that this employee “replaced her”; the office manager averred that the new employee was a probationary hourly employee whose primary duties were copying and filing (see Mike v Haylor, Freyer & Coon, 169 AD2d 911 [1991]). Concur—Tom, J.P., Mazzarelli, Friedman, Williams and Sweeny, JJ.