Opinion
16647 Index No. 160099/19 Case No. 2021–04657
11-15-2022
Mohiuddin AHMED, Plaintiff–Appellant, v. 2 WEST 46TH STREET MANAGEMENT, LLC, Defendant–Respondent.
Law Office of Noah A. Kinigstein, New York (Noah A. Kinigstein of counsel), for appellant. Milman Labuda Law Group PLLC, Lake Success (Matthew A. Brown of counsel), for respondent.
Law Office of Noah A. Kinigstein, New York (Noah A. Kinigstein of counsel), for appellant.
Milman Labuda Law Group PLLC, Lake Success (Matthew A. Brown of counsel), for respondent.
Gische, J.P., Kapnick, Kern, Gesmer, Higgitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about December 8, 2021, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its entitlement to summary judgment dismissing the complaint, as it articulated a legitimate, nondiscriminatory reason for firing plaintiff from his employment as a cleaner – namely, plaintiff's unsatisfactory work performance and his failure to improve despite multiple warning letters (see Park v. Kurtosys Sys., Inc., 206 A.D.3d 570, 571, 168 N.Y.S.3d 829 [1st Dept. 2022] ; Koester v. New York Blood Ctr., 55 A.D.3d 447, 448, 449, 866 N.Y.S.2d 87 [1st Dept. 2008] ). Defendant's submission of tenant complaints regarding the uncleanliness of the bathrooms and the warning letters it issued to plaintiff about his poor performance supports its claim that he was terminated not because of his age, but because of his failure to adequately perform his duties over an extended time (see Park, 206 A.D.3d at 570, 168 N.Y.S.3d 829 ). As further evidence that plaintiff was not fired because of his age, defendant showed that it did not fill plaintiff's position after he was terminated but instead outsourced his job duties to a third-party cleaning service (see Bailey v. New York Westchester Sq. Med. Ctr., 38 A.D.3d 119, 124, 829 N.Y.S.2d 30 [1st Dept. 2007] ).
In opposition, plaintiff failed to demonstrate that any of the reasons defendant proffered for terminating his employment were false, misleading, or incomplete (see Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 43, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied, 18 N.Y.3d 811, 2012 WL 1432090 [2012] ). Plaintiff presented no evidence tending to show that the tenant complaints or the warning letters were inaccurate, much less designed to supply a pretext for age discrimination (see e.g. Stephens v. Isabella Geriatric Ctr., Inc., 178 A.D.3d 478, 478–479, 114 N.Y.S.3d 331 [1st Dept. 2019], lv denied 35 N.Y.2d 914, 2020 WL 5415094 [2020] ; Stewart v. Schulte Roth & Zabel LLP, 44 A.D.3d 354, 355, 841 N.Y.S.2d 878 [1st Dept. 2007], lv denied 10 N.Y.3d 707, 858 N.Y.S.2d 655, 888 N.E.2d 397 [2008] ). Nor does plaintiff show how defendant's failure to give him vacation wages before his vacation was to begin supports a finding of pretext under the circumstances (see Hamburg v. New York Univ. Sch. of Medicine, 155 A.D.3d 66, 81, 62 N.Y.S.3d 26 [1st Dept. 2017] ). In addition, plaintiff's assertion that defendant failed to sufficiently warn him about his unsatisfactory job performance is undermined by his own testimony that he saw the January 2018 letter that suspended him for three days based on tenant complaints regarding his job performance (see e.g. Stephens, 178 A.D.3d at 478, 114 N.Y.S.3d 331 ).
The two isolated comments made by plaintiff's supervisor about his intent to retire were "stray remarks" that "do not, without more, constitute evidence of discrimination" ( Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 125, 946 N.Y.S.2d 27 [1st Dept. 2012] ). At any rate, even if these remarks suggested bias, defendant established that the supervisor was not involved in the decision to terminate plaintiff's employment, and in fact, had no power to hire, fire, or discipline employees (see Radler v. Catholic Health Sys. of Long Is., Inc., 144 A.D.3d 781, 782, 41 N.Y.S.3d 88 [2d Dept. 2016] ; Mete v. New York State Off. of Mental Retardation and Dev. Disabilities, 21 A.D.3d 288, 294, 800 N.Y.S.2d 161 [1st Dept. 2005] ).