Opinion
6060 Index 153463/16
03-22-2018
Steven M. D'AMICO, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Tom, J.P., Webber, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered January 9, 2017, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the amended verified complaint for failure to state a claim, unanimously modified, on the law, to deny so much of the motion that seeks dismissal of plaintiff's claims for disability discrimination under the New York State and New York City Human Rights Laws (State and City HRLs), and otherwise affirmed, without costs.
Plaintiff sanitation worker suffered a hand injury on the job, and, on the basis of his doctors' recommendations, requested a reasonable accommodation of light duty. According to plaintiff, the light duty could have consisted of pairing him with another Department of Sanitation employee and permitting him to drive a truck while the coworker did the heavy lifting. However, defendants responded by terminating him.
Liberally construing the facts alleged in the amended verified complaint and according that pleading the benefit of every possible favorable inference (see Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013] ), plaintiff has adequately pleaded claims for disability discrimination under a theory of failure to accommodate under the State and City HRLs (see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 834, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ). Notably, there is no indication that following plaintiff's request for light duty, defendants entered into an interactive dialogue with him in an attempt to reach some reasonable accommodation (see Phillips v. City of New York, 66 A.D.3d 170, 176, 884 N.Y.S.2d 369 [1st Dept. 2009] ).
The motion court properly held that plaintiff failed to allege that he engaged in any protected activity as a predicate for his retaliation claims. Neither plaintiff's request for a reasonable accommodation (see Witchard v. Montefiore Med. Ctr., 103 A.D.3d 596, 960 N.Y.S.2d 402 [1st Dept. 2013], lv denied 22 N.Y.3d 854, 2013 WL 5716344 [2013] ; Brook v. Overseas Media, Inc., 69 A.D.3d 444, 445, 893 N.Y.S.2d 37 [1st Dept. 2010] ) nor his filing of an internal workers' compensation claim constitutes protected activities for purposes of the State and City HRLs (see Brook, at 445, 893 N.Y.S.2d 37 ; Pezhman v. City of New York, 47 A.D.3d 493, 494, 851 N.Y.S.2d 14 [1st Dept. 2008] ).