Rosenberg v. Nassau Boces

Opinion

Rosenberg v Nassau Boces

2026 NY Slip Op 04883

August 5, 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.

Susan Rosenberg, appellant,

v

Nassau Boces, et al., respondents, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-11266, (Index No. 611717/21)

Mark C. Dillon, J.P.

Deborah A. Dowling

Carl J. Landicino

James P. McCormack, JJ.

Alahverdian Van Leuvan, P.C., Bethpage, NY (Gerard Van Leuvan of counsel), for appellant.

Silverman & Associates, White Plains, NY (Valentina Lumaj of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of disability in violation of the New York State Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Nassau County (Catherine Rizzo, J.), dated July 22, 2024. The order, insofar as appealed from, granted those branches of the cross-motion of the defendants Nassau Boces, Nassau County Board of Cooperative Education Services, Valeri C. D'Aguanno, and Selma Stoddard which were for summary judgment dismissing the causes of action alleging failure to provide a reasonable accommodation, disability discrimination, and constructive discharge insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a special education teacher, commenced this action against, among others, the defendants Nassau Boces, Nassau County Board of Cooperative Education Services, Valeri C. D'Aguanno, and Selma Stoddard (hereinafter collectively the defendants), alleging, inter alia, that they discriminated against her based on her disability—a health condition that allegedly put her at heightened risk during the COVID-19 pandemic—by failing to provide a reasonable accommodation in the form of allowing her to work remotely from home to teach at-home students during the 2020-2021 academic school year and, as a result, forced her into early retirement. The complaint asserted causes of action, among other things, alleging disability discrimination, failure to provide a reasonable accommodation, and constructive discharge in violation of the New York State Human Rights Law (NYSHRL) (Executive Law § 296). The defendants cross-moved, inter alia, for summary judgment dismissing those causes of action insofar as asserted against them. In an order dated July 22, 2024, the Supreme Court, among other things, granted those branches of the defendants' cross-motion. The plaintiff appeals.

Under the NYSHRL, "[i]t shall be an unlawful discriminatory practice for an employer . . . to refuse to provide reasonable accommodations to the known disabilities . . . of an employee . . . in connection with a job . . . held" (id. § 296[3][a]; see Gibbons v State of New York, 206 AD3d 974, 975; Leon v State Univ. of N.Y., 120 AD3d 771, 771). Reasonable accommodations may include, but are not limited to, "reassignment to an available position" (9 NYCRR [*2]466.11[a][2]), "provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested" (Executive Law § 292[21-e]). "An employer normally cannot obtain summary judgment on an employment discrimination claim based on disability pursuant to NYSHRL 'unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation,' and the employer cannot present such a record 'if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request'" (Guarniero v City of Yonkers, 241 AD3d 514, 515, quoting Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 837; see Cohen v State of New York, 129 AD3d 897, 899). Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a failure to provide a reasonable accommodation insofar as asserted against them by submitting evidence demonstrating that they duly considered the proposed accommodation and engaged in deliberations with the plaintiff as to the viability of her working remotely from home. Additionally, the defendants demonstrated that they offered the plaintiff a reasonable accommodation of teaching from inside the school remotely to at-home students, with appropriate COVID-19 safeguards, which the plaintiff declined. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging failure to provide a reasonable accommodation insofar as asserted against them (see Makharadze v Ognibene, 239 AD3d 844; Leon v State Univ. of N.Y., 120 AD3d at 772).

"To make a prima facie showing of a violation of Executive Law § 296(1)(a), which prohibits discrimination in employment based upon a disability, the complainant must show 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 was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Matter of Town of Hempstead v New York State Div. of Human Rights, 215 AD3d 973, 977 [internal quotation marks omitted]; see Executive Law § 296[1][a]). An adverse employment action may include constructive discharge (see Godino v Premier Salons, Ltd., 140 AD3d 1118, 1119), which occurs "when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation" (Morris v Schroder Capital Mgt. Intl., 7 NY3d 616, 621 [internal quotation marks omitted]). "Under the constructive discharge test, the actions of the employer in creating the intolerable workplace condition must be deliberate and intentional" (id. at 621). Here, the defendants submitted evidence demonstrating, prima facie, that the plaintiff did not suffer an adverse employment action within the meaning of the NYSHRL and that, in any event, the denial of the plaintiff's accommodation request was motivated by a legitimate, nondiscriminatory reason and that there was no triable issue of fact as to whether the defendants' explanation was pretextual (see Reichman v City of New York, 179 AD3d 1115, 1117). In opposition, the plaintiff failed to raise a triable issue of fact (see id.). Accordingly, the Supreme Court properly granted those branches of the defendants' cross-motion which were for summary judgment dismissing the causes of action alleging disability discrimination and constructive discharge insofar as asserted against them.

DILLON, J.P., DOWLING, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court