Kurylov v. Icahn School of Medicine at Mount Sinai

139 A.D.3d 451, 31 N.Y.S.3d 56

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 2016
• Docket: 825 162005/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered October 8, 2015, which, to the extent appealed from as limited by the briefs, denied defendants’ (Mount Sinai) motion to dismiss the complaint pursuant to CPLR 3211 (c), unanimously affirmed, without costs.

Plaintiff, a black woman from Nigeria, alleges that she was terminated from Mount Sinai’s residency program in pathology because of her race and/or national origin. Mount Sinai brought a motion to dismiss pursuant to CPLR 3211, seeking, alternatively, that the court convert the motion to one for summary judgment pursuant to CPLR 3211 (c). The motion court expressly declined to treat the motion as one for summary judgment. Consequently, no notice of any conversion was given, precluding our deciding this appeal under the summary judgment standard (see Brathwaite v Frankel, 98 AD3d 444 [1st Dept 2012]). This case does not pose any exception to the notice requirement under CPLR 3211 (c), because the questions raised about whether plaintiff has any evidence of discrimination, are not solely ones of law or statutory interpretation. Nor did plaintiff ever indicate that she joined in deliberately charting a summary judgment course (see Braithwaite at 444-445; see Spilka v Town of Inlet, 8 AD3d 812 [3d Dept 2004]). Viewing plaintiffs complaint under the liberal standard afforded to the pleader under CPLR 3211, we find that the complaint states a cause of action. We do not reach the merits of whether defendant is entitled to summary judgment.

Concur — Mazzarelli, J.P., Acosta, Moskowitz, Gische and Webber, JJ.