Opinion
Argued September 28, 2001.
October 22, 2001.
In an action pursuant to Executive Law — 296 alleging, inter alia, discrimination based on age and disability, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), dated June 20, 2000, as granted those branches of the motion of the defendants County of Dutchess, Charles Drum, Steve Rositi, and Bill Pepper which were for summary judgment dismissing the plaintiff's second, third, and fifth causes of action, and those defendants cross-appeal from so much of the order as denied that branch of their motion which was for summary judgment dismissing the plaintiff's fourth cause of action.
Thomas P. Halley, Poughkeepsie, N.Y., for appellant-respondent.
McCabe Mack, LLP, Poughkeepsie, N.Y. (David L. Posner of counsel), for respondents-appellants.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, BARRY A. COZIER, JJ.
ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the branch of the motion which was for summary judgment dismissing the plaintiff's fourth cause of action is granted; and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents-appellants.
The plaintiff was one of four park-maintenance mechanics employed by the defendant County of Dutchess. He was laid off effective December 31, 1993, when the county budget eliminated one mechanic's position. The plaintiff brought this action alleging, inter alia, conspiracy under 42 U.S.C. — 1985 to deprive him of his job, discrimination on the basis of age and disability in violation of Executive Law — 296, and violation of Civil Service Law — 75.
The papers showed that the termination of the plaintiff's employment was in response to budgetary constraints of the County of Dutchess, that the plaintiff's position was not filled by a younger person but was left vacant for two years following his dismissal, and that when the position was restored to the county budget, a person older than the plaintiff was hired. Under these circumstances, the plaintiff failed to establish a prima facie case of age discrimination (see, Matter of Laverack Haines v. New York State Div. of Human Rights, 88 N.Y.2d 734; Herskowitz v. Greystone Jewish Ctr., 270 A.D.2d 391; Kelly v. Poughkeepsie Area Chamber of Commerce, 265 A.D.2d 307; Alfano v. Miller Envtl. Group, 253 A.D.2d 446).
The Supreme Court should have granted that branch of the motion which was to dismiss the fourth cause of action alleging discriminatory firing based on disability. The plaintiff failed to establish that his surgery and subsequent radiation treatment limited his ability to perform his job within the meaning of the Human Rights Law (see, Collins v. Christopher, 48 F. Supp.2d 397). Assuming that the plaintiff demonstrated a prima facie case of disability discrimination, the movants met their burden of demonstrating that the plaintiff's termination was based on legitimate, nondiscriminatory reasons (see, Matter of McEniry v. Landi, 84 N.Y.2d 554; Matter of Siano v. Dolce, 256 A.D.2d 582; Matter of Hickman v. Poughkeepsie City School Dist., 237 A.D.2d 289; Gilroy v. Continental Corp., 237 A.D.2d 251; Wozniak v. Components Assembly Div., 220 A.D.2d 934; Matter of Friedel v. New York State Div. of Human Rights, 219 A.D.2d 547).
The Supreme Court properly determined that the plaintiff was not entitled to a hearing pursuant to Civil Service Law — 75 because he did not have five years of continuous service dating from his first appointment on a permanent basis (see, Civil Service Law — — 75[1][c], 80-a[2]; Matter of Marcus v. Ingersoll, 266 N.Y. 359).
The plaintiff's remaining contentions are without merit.
SANTUCCI, J.P., S. MILLER, FRIEDMANN and COZIER, JJ., concur.