Opinion
2001-06624
Argued September 26, 2002
October 21, 2002.
In an action pursuant to Executive Law article 15 to recover damages for discrimination based on a disability, the defendant appeals from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered June 27, 2001, as denied its cross motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment on the issue of liability.
Jackson Lewis Schnitzler Krupman, White Plains, N.Y. (Margaret A. Weiner, Greg A. Riolo, and Russell E. Adler of counsel), for appellant-respondent.
Goodstein West, New Rochelle, N.Y. (Robert David Goodstein and Eileen West of counsel), for respondent-appellant.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN and DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court correctly determined that neither party demonstrated their entitlement to judgment as a matter of law on the cause of action contained in the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Issues of fact exist as to whether the plaintiff's disability prevented him from performing his job in a reasonable manner and/or whether his termination was motivated by a legitimate non-discriminatory reason (see Executive Law § 292; Matter of McEniry v. Landi, 84 N.Y.2d 554; see also Ferrante v. American Lung Assn., 90 N.Y.2d 623; Umansky v. Masterpiece Intl., 276 A.D.2d 691). Accordingly, the Supreme Court properly denied the plaintiff's motion and the defendant's cross motion for summary judgment.
FEUERSTEIN, J.P., SMITH, GOLDSTEIN and LUCIANO, JJ., concur.