In Graham v .New York State Off. of Mental Health, 2017 NY Slip Op 07501 (App. Div. 3d Dept. Oct. 26, 2017), the court (inter alia) affirmed the dismissal of plaintiff’s claim, asserted under the New York State Human Rights Law, that he was retaliated against for requesting a reasonable accommodation for his disability.
From the decision:
Assuming, without deciding, that plaintiff engaged in a protected activity by requesting reasonable accommodations (see Serdans v New York & Presbyt. Hosp., 112 AD3d 449, 450 ; Witchard v Montefiore Med. Ctr., 103 AD3d 596, 596 , lv denied 22 NY3d 854 ; McKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 677 ; but see e.g. Weixel v Board of Educ. of City of New York, 287 F3d 138, 149 [2d Cir 2002]) and that he also established, prima facie, the remaining elements of a retaliation claim, we would nonetheless find that defendants satisfied their burden of demonstrating legitimate, independent and nondiscriminatory reasons for terminating plaintiff’s employment. Indeed, in support of their motion for summary judgment dismissing the complaint, defendants proffered, among other things, the affidavits of Hernandez, Gorman and Anne Soldner — then Associate Personnel Administrator in the human resources department. Hernandez stated that he terminated plaintiff’s probationary employment because it was discovered that plaintiff withheld his prior 14-year state employment at a similar facility from his employment application. Hernandez explained that, [*5]upon receiving counsel’s February 2009 letter, he asked the Director of Human Resources to ascertain whether CDPC had received a Civil Service Law §§ 55-b and/or 55-c notice from plaintiff or whether such notice was contained in plaintiff’s personnel file or employment history. Hernandez asserted that he was thereafter informed that Soldner had discovered that plaintiff had been previously employed at a similar state facility and had been suspended and later terminated from that position. According to Hernandez, because CDPC and the other state facility were “very similar,” hiring someone who had been discharged from a similar setting put patients at risk. Finally, Hernandez asserted that he could not recall “a single instance at CDPC in which an employee who ha[d] falsified his or her employment application was not terminated.”