Opinion
9543 Index 115597/10
06-06-2019
Michael CATALANO, Plaintiff–Appellant, v. FOX TELEVISION STATIONS, INC., Defendant–Respondent, WNYW–Fox 5 Television, Defendant.
Michael G. O'Neill, New York, for appellant. Holland & Knight LLP, New York (Michael Starr of counsel), for respondent.
Michael G. O'Neill, New York, for appellant.
Holland & Knight LLP, New York (Michael Starr of counsel), for respondent.
Sweeny, J.P., Gische, Webber, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 22, 2017, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint as against defendant Fox Television Stations, Inc., unanimously affirmed, without costs.
Defendants met their obligation, under the New York State and City Human Rights Laws, to engage in a good-faith interactive dialogue with plaintiff aimed at reasonably accommodating his disability (see Executive Law § 292[21], [21–e] ; Administrative Code of City of N.Y. § 8–107[15][b]; Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 836–837, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ). Defendants repeatedly offered to train plaintiff and place him as an "ELC" ("Enhanced Live Control") operator. The offer was qualified only by a request that plaintiff furnish a note from his physician confirming that he could perform all the ELC operator functions "without limitations; or, if he believes you have limitations, what those are." Given that his orthopedist had stipulated that plaintiff could return to work as of August 23, 2010, but only if there were "no use of Robotic Tension Joysticks operation until further notice," defendants' request for medical confirmation of his ability to perform the ELC operator functions (which included joystick use) was reasonable. However, plaintiff never updated the orthopedist's note; he submitted doctors' notes stating merely that he continued to be seen and treated.
Plaintiff's engineer's affidavit, submitted in opposition to defendants' motion and corroborating plaintiff's own efforts to find ways to modify the existing joystick or find joystick alternatives, is not relevant to this analysis. The reasonableness of an employer's response to a disabled employee's request for an accommodation turns not on whether some accommodation was theoretically available, but rather on "whether a reasonable accommodation was available for the employee's disability at the time the employee sought accommodation" ( Jacobsen, 22 N.Y.3d at 838, 988 N.Y.S.2d 86, 11 N.E.3d 159 ). The record demonstrates that defendants, in consultation with their equipment vendor, made extensive efforts to test plaintiff's suggestions and find alternatives. Thus, defendants did not "arbitrarily reject [plaintiff's] proposal[s] without further inquiry," but met their obligation "to investigate that request and determine its feasibility" by engaging in "at least some deliberation upon the viability of [his] request" ( Jacobsen, 22 N.Y.3d at 836, 837, 988 N.Y.S.2d 86, 11 N.E.3d 159 [internal quotation marks omitted] ). The record also demonstrates that defendants attempted to further the interactive dialogue with plaintiff (via his union) by requesting that the vocational expert he had identified in the fall of 2010 (not the mechanical engineer who submitted the opposition affidavit) visit the workplace and perform an ergonomic evaluation aimed at finding an accommodation. However, the union did not respond to defendants' last request for dates of availability.
Plaintiff contends that defendants could have accommodated him by placing him in an evening floor manager position, which did not require use of a joystick. However, it is undisputed that defendants were filling that position temporarily, because they were in the process of consolidating it into a new ELC position to be held by per diem employees. Defendants were not required to place plaintiff in the evening ELC position when it became available, thereby bumping a more junior staff technician whom defendants had been preparing for the position (see Silver v. City of N.Y. Dept. of Homeless Servs., 2012 N.Y. Slip Op. 32447[U], 2012 WL 4472558, *9 [Sup. Ct., N.Y. County 2012], affd 115 A.D.3d 485, 981 N.Y.S.2d 533 [1st Dept. 2014] ).
Because defendants did not cross-appeal, we cannot grant their request that we dismiss the complaint as against defendant WNYW–Fox 5 Television, which defendants assert is merely a trade name without separate juridical existence (see Seldon v. Spinnell, 95 A.D.3d 779, 945 N.Y.S.2d 666 [1st Dept. 2012], lv denied 20 N.Y.3d 857, 2013 WL 149767 [2013] ).