Leibowitz v. New York County Lawyers Assn.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Leibowitz v New York County Lawyers Assn.
2026 NY Slip Op 04759
July 29, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Heidi Leibowitz, appellant,
v
New York County Lawyers Association, respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 29, 2026
2024-09482, (Index No. 517381/19)
Francesca E. Connolly, J.P.
William G. Ford
Helen Voutsinas
Laurence L. Love, JJ.
Alexander Markus, Lynbrook, NY, for appellant.
Dentons US LLP, New York, NY (Ned H. Bassen of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107, the plaintiff appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.) dated July 25, 2024. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In April 2016, the plaintiff, who was employed by the defendant, took a pregnancy-related leave. During the plaintiff's leave, the defendant converted the plaintiff's position from full time to part time. In August 2016, the defendant repeatedly inquired about the plaintiff's planned return-to-work date. On August 9, 2016, after the plaintiff's repeated failure to commit to an exact return date, the defendant terminated her employment, effective September 8, 2016, at the end of her leave.
On August 7, 2019, plaintiff commenced this action alleging, inter alia, employment discrimination on the basis of gender and retaliation under the New York State Human Rights Law (NYSHRL) (Executive Law § 296) and the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-107). The defendant moved for summary judgment dismissing the complaint. In an order dated July 25, 2024, the Supreme Court granted the defendant's motion. The plaintiff appeals.
At the time the plaintiff commenced this action on August 7, 2019, a plaintiff alleging discrimination in violation of the NYSHRL was required to establish that "(1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Niemotko v Mount St. Mary Coll., 241 AD3d 701, 702 [internal quotation marks omitted]; see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 709-710). A plaintiff seeking to prove a cause of action alleging discrimination "may raise such an inference by showing that the employer subjected him [or her] to disparate treatment, that is, treated him [or her] less favorably than a similarly situated employee outside his [or her] protected group" (Castro v City Univ. of N.Y., 238 AD3d 1106, 1107 [internal quotation marks omitted]; see Dotson v J.C. Penney [*2]Co., Inc., 159 AD3d 1512, 1514). "When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances" (Castro v City Univ. of N.Y., 238 AD3d at 1107-1108 [internal quotation marks omitted]; see Diaz v Minhas Constr. Corp., LLC, 188 AD3d 812, 814). "The key is that they be similar in significant respects" (Castro v City Univ. of N.Y., 238 AD3d at 1108 [internal quotation marks omitted]).
"To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of triable issue[s] of fact as to whether the explanations were pretextual" (Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d at 710 [internal quotation marks omitted]).
Here, the defendant met its prima facie burden by demonstrating that the plaintiff's employment was terminated for a nondiscriminatory reason, namely her failure to commit to a return-to-work date (see Niemotko v Mount St. Mary Coll., 241 AD3d at 703). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's reason for terminating her employment was a pretext for pregnancy discrimination (see D'Agostino v MMC E., LLC, 184 AD3d 719, 722).
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging pregnancy discrimination in violation of the NYSHRL.
"Under the NYCHRL, unlawful discrimination must play no role in an employment decision" (Ellison v Chartis Claims, Inc., 178 AD3d 665, 668 [internal quotation marks omitted]; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143, 1146). Thus, a defendant's motion for summary judgment must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792) and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion (see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1145; Reichman v City of New York, 179 AD3d 1115, 1117). "A defendant must make a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions" (Ellison v Chartis Claims, Inc., 178 AD3d at 668 [internal quotation marks omitted]; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146). "A plaintiff may defeat summary judgment by coming forward either with evidence that the defendant's stated reasons were a pretext for discrimination or with evidence that discrimination was one of the motivating factors for the defendant's conduct" (Ellison v Chartis Claims, Inc., 178 AD3d at 668; see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146).
Here, the defendant met its prima facie burden by establishing that there was no evidentiary route that could allow any jury to believe that the plaintiff's employment was terminated for discriminatory reasons (see Ellison v Chartis Claims, Inc., 178 AD3d at 669). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the proffered explanation was a pretext for discrimination or whether discrimination was o
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