Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying defendant's motion for summary judgment dismissing the first cause of action alleging that, in discharging plaintiff from employment, defendant unlawfully discriminated against him because of his disability in violation of Executive Law § 296 (1) (a). A physical condition that prevents an employee from reporting to work and that requires an employee to miss an unacceptably high number of days of work is not a disability within the meaning of Executive Law § 292 (21) (see, Giaquinto v. New York Tel. Co., 135 A.D.2d 928, lv denied 73 N.Y.2d 701; Matter of Schmitt v. Kiley, 124 A.D.2d 661, lv denied 69 N.Y.2d 612; McAuliffe v. Taft Furniture Warehouse Showroom, 116 A.D.2d 774, lv denied 67 N.Y.2d 609; Matter of Silk v. Huck Installation Equip. Div., 109 A.D.2d 930).
The court properly denied defendant's motion for summary judgment dismissing the second cause of action alleging that the disparate treatment and eventual discharge of plaintiff from employment constituted unlawful racial discrimination in violation of Executive Law § 296 (1). Although plaintiff is collaterally estopped from challenging factual findings made by an arbitrator and by an Administrative Law Judge in prior quasi-judicial proceedings regarding the accumulation of sufficient points to justify the discharge of plaintiff pursuant to defendant's absenteeism policy (see, Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, cert denied 488 U.S. 1005; Ryan v. New York Tel. Co., 62 N.Y.2d 494; cf., Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147), factual issues nevertheless remain concerning the alleged disparate treatment of plaintiff during employment and whether his discharge pursuant to the absenteeism policy constituted a pretext for racial discrimination. Those issues were not raised during either of the prior quasi-judicial proceedings. Thus, we modify the order appealed from to grant defendant's motion for summary judgment dismissing the first cause of action.