Opinion
(1285) CA 01-00304.
November 9, 2001.
(Appeals from Judgment of Supreme Court, Erie County, Kane, J. — Executive Law.)
PRESENT: GREEN, J.P., HAYES, WISNER, SCUDDER AND KEHOE, JJ.
Judgment unanimously reversed on the law without costs, defendant's motion granted and amended complaint dismissed. Memorandum:
Plaintiff commenced this action alleging that defendant, her former employer, unlawfully discriminated against her by discharging her based on her disability. Following a jury trial, plaintiff was awarded approximately $545,000 in damages for past and future lost wages and benefits and pain and suffering. Defendant contends that, as a matter of law, plaintiff is not disabled within the meaning of Executive Law § 292 (former [21]) and thus is barred from recovering for employment discrimination under Executive Law § 296 (1) (a) and former (3-a) (g). We agree.
Pursuant to Executive Law § 296 (1) (a), it is an unlawful discriminatory practice to discharge an employee "because of" the employee's disability ( see, Matter of Cahill v. Rosa, 89 N.Y.2d 14, 19; Matter of McEniry v. Landi, 84 N.Y.2d 554, 558-559). In order to prevail on her claim, plaintiff was required to prove that she fell within the class of persons protected by the Human Rights Law, i.e., that she was disabled within the meaning of that law ( see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629; Matter of McEniry v. Landi, supra, at 558-559). When plaintiff's claim arose, Executive Law § 292 (former [21]) defined "disability" as, inter alia, a "physical, mental or medical impairment * * * provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." Moreover, Executive Law § 296 (former [3-a] [g]) provided that nothing in the statutory scheme "shall be construed to prevent the termination of the employment of any person who is physically unable to perform his or her duties". Thus, the applicable law precluded any claim of employment discrimination brought by an employee who, at the time of the termination, suffered from a disability that rendered him or her unable to perform his or her job duties in a reasonable manner ( see, Matter of McEniry v. Landi, supra, at 558; Matter of Miller v. Ravitch, 60 N.Y.2d 527, 532; Sherman v. Kang, 275 A.D.2d 1016; Kelly v. Poughkeepsie Area Chamber of Commerce, 265 A.D.2d 307, 308). Proof that the claimed disability prevented the employee from performing the duties of the job in a reasonable manner rebuts any inference of discrimination ( see, Matter of Miller v. Ravitch, supra, at 534-535 [Jasen, J., concurring]) and supports entry of judgment as a matter of law in favor of a defendant accused of unlawfully terminating that employee ( see, Kelly v. Poughkeepsie Area Chamber of Commerce, supra, at 308; Clark v. Cargill, Inc., 206 A.D.2d 870).
Here, plaintiff's treating physician testified that plaintiff could not have performed her job without accommodation. Under the law as it existed when plaintiff's claim arose, that testimony was fatal to plaintiff's claim of disability discrimination ( see, DiSanto v. McGraw-Hill, Inc./Platt's Div., 220 F.3d 61, 64 [applying New York law]). Moreover, plaintiff's claim was refuted by proof of the out-of-court representations of plaintiff that she had been permanently disabled from work on a continuous basis as of several weeks prior to her termination ( see, Sherman v. Kang, supra, at 1017, citing Matter of ATT Bell Labs. v. New York State Div. of Human Rights, 213 A.D.2d 230, 231; DiSanto v. McGraw-Hill, Inc./Platt's Div., supra, at 64). "Plaintiff cannot contend that she was entitled to [disability] benefits on the ground that she was totally disabled [from a date prior to her termination] and, at the same time, contend that her `disability' was within the protection of Executive Law § 292 (21), i.e., that it did not prevent her from performing in a reasonable manner the activities involved in the job that she held" ( Sherman v. Kang, supra, at 1017; see, DiSanto v. McGraw-Hill, Inc./Platt's Div., supra, at 64-65). In view of our determination, it is unnecessary to address the remaining contentions of the parties.