Opinion
2013-07351
11-05-2014
Robert BROWNE, respondent, v. BOARD OF EDUCATION, et al., appellants.
Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Steven Verveniotis and Brian S. Condon of counsel), for appellants. Law Offices of Steven A. Morelli, P.C., Garden City, N.Y. (Joshua Beldner of counsel), for respondent.
Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Steven Verveniotis and Brian S. Condon of counsel), for appellants.
Law Offices of Steven A. Morelli, P.C., Garden City, N.Y. (Joshua Beldner of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered July 8, 2013, as denied that branch of their motion which was for summary judgment dismissing the first cause of action, which alleged employment discrimination based on gender.
ORDERED that the order is affirmed insofar as appealed from, with costs.
By failing to raise collateral estoppel as an affirmative defense to the cause of action alleging employment discrimination either in their pre-answer motion to dismiss or in their answer, the defendants waived it (see CPLR 3211 [a][5], [e] ).
In opposition to the defendants' prima facie showing that there was a legitimate, nondiscriminatory reason for charging the plaintiff with misconduct, the plaintiff's submissions raised a triable issue of fact as to whether this reason was false, misleading, or incomplete, and thus, a pretext for discrimination (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 41, 936 N.Y.S.2d 112 ).
Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiff's first cause of action, which alleged employment discrimination based on gender.