Whitney v. Bronx-Lebanon Hospital Center

2017 NY Slip Op 4082, 150 A.D.3d 587, 55 N.Y.S.3d 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2017
• Docket: 4081
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered on or about December 7, 2016, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to make a prima facie showing of discrimination because she failed to plead facts demonstrating that she had any “disability” within the meaning of the New York State Human Rights Law or the New York City Human Rights Law (Matter of McEniry v Landi, 84 NY2d 554, 558 [1994]; Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], lv denied 7 NY3d 707 [2006]; see Executive Law §§ 292 [21] [a]; 296 [1] [a]; Administrative Code of City of NY §§ 8-102 [16]; 8-107 [1] [a]). Plaintiff relies solely on a nurse’s note that states that plaintiff suffers from unspecified “chronic medical conditions,” and that her inability to sleep during the day was making those conditions worse. The nurse’s unsworn, conclusory allegations do not suffice to defeat defendants’ motion for summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Because plaintiff failed to raise triable issues of fact whether she is an individual with a disability, the motion court also correctly dismissed her reasonable accommodation claim. Moreover, to the extent she ever properly requested a transfer to an earlier, evening shift, defendants were aware that there was no position available on the evening shift, and they were not required to reassign her if no position was open (Pimentel, 29 AD3d at 147-148).

Concur—Friedman, J.P., Moskowitz, Fein-man, Gische and Kahn, JJ.