Lawson v. High Bar Wholesale Food Distributors, Inc.

217 A.D.2d 646, 629 N.Y.S.2d 807, 5 Am. Disabilities Cas. (BNA) 135, 1995 N.Y. App. Div. LEXIS 8104

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 24, 1995
• Status: Published

Opinion

In an action, inter alia, to recover damages for wrongful termination and to recover overtime pay, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated January 6, 1994, which granted the defendants’ motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment.

Ordered the order is affirmed, with costs.

Executive Law § 296 permits the dismissal of a disabled employee when the disabling condition prevents the employee from reasonably performing his job (see, Matter of Antonsen v Ward, 77 NY2d 506; DiGeronimo v First Nationwide Bank, 209 AD2d 575). Here, the plaintiff suffered a foot injury which prevented him from performing his duties as a store manager for the defendant corporation. The position required a great deal of standing, bending, and lifting, as well as walking around the store to supervise the other employees. Upon his return after a second surgical procedure, the plaintiff admittedly only walked around the store about "an hour a day”, and the remainder of his time was spent sitting. Under these circumstances, the defendants were permitted to dismiss the plaintiff from his position.

The record demonstrates that the plaintiff was a salaried employee earning in excess of $250 per week whose work consisted primarily of management duties and the supervision of two or more employees. Therefore, the plaintiff was an executive employee pursuant to the Fair Labor Standards Act, exempt from overtime pay (see, 29 CFR §§ 541.1, 541.2; 29 USC § 213 [a] [1]).

The plaintiff’s remaining contentions are without merit. Bracken, J. P., Balletta, Pizzuto and Krausman, JJ., concur.