Disability Discrimination Claims Sufficiently Alleged; Return to Work Day After Injury Not Dispositive

In Simmons v. Village Plumbing & Heating NY Inc., No. 652787/2022, 2023 WL 4323562, 2023 N.Y. Slip Op. 32203(U) (N.Y. Sup Ct, New York County June 16, 2023), the court, inter alia, held that plaintiff sufficiently alleged disability discrimination under the New York State and City Human Rights Laws.

From the decision:

Defendants insist that plaintiff fails to allege a disability because he returned to work the day after his injury. His allegation that his disability prevented him from performing his job, however, must be assumed true at this juncture. Whether that allegation is true remains a factual question to be determined at a later stage. First Majestic Silver Corp. v. Heitz, 208 A.D.3d 1130, 1131 (1st Dep’t 2022); Le Bihan v. 27 Washington Sq. N. Owner LLC, 205 A.D.3d 616, 618 (1st Dep’t 2022). Certainly reporting to work does not establish the ability to perform the functions of the job as a matter of law. Plaintiff alleges that his doctor advised him to rest and not work for one week. While plaintiff does not expressly allege that he informed defendants about the specific nature of his injury, he does allege that his injury was “physical,” Gangat Aff. Ex. A ¶ 45, which qualifies as a disability under both NYSHRL and NYCHRL. N.Y. Exec. Law § 292(21); N.Y.C. Admin. Code § 8-102(16)(a); Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 834 (2014); Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884-85 (2013).

Although plaintiff’s attorney presents the “doctor’s note” alleged in the amended complaint, which is actually by a physician’s assistant, indicating plaintiff suffered a wound that required sutures, no affidavit authenticates the note on personal knowledge so as to supplement the amended complaint. See **6 AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591 (2005); VXI Lux Holdco, S.A.R.L. v. SIC Holdings, LLC, 194 A.D.3d 628, 628 (1st Dep’t 2021); Ninth Space LLC v. Goldman, 192 A.D.3d 594, 594 (1st Dep’t 2021); M & E 73-75, LLC v. 57 Fusion LLC, 189 A.D.3d 1, 5 (1st Dep’t 2020). Nevertheless, plaintiff alleges that he provided his doctor’s note to defendants, which raises a reasonable inference that plaintiff requested a leave of absence to recover from his injuries. Finally, plaintiff alleges that defendants discharged him based on his physical injury and his need for leave to recover.

Based on this, the court concluded that plaintiff’s allegations, “liberally construed,” state a claim for disability discrimination.

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