Opinion
2016–04846 Index No. 7605/14
07-05-2018
Eileen HALVATZIS, appellant-respondent, v. JAMAICA HOSPITAL MEDICAL CENTER, respondent-appellant.
Leavitt & Kerson, Forest Hills, N.Y. (Paul E. Kerson of counsel), for appellant—respondent. Martin Clearwater & Bell, LLP, New York, N.Y. (Barbara D. Goldberg, Gregory B. Reilly, and Adam G. Guttell of counsel), for respondent-appellant.
Leavitt & Kerson, Forest Hills, N.Y. (Paul E. Kerson of counsel), for appellant—respondent.
Martin Clearwater & Bell, LLP, New York, N.Y. (Barbara D. Goldberg, Gregory B. Reilly, and Adam G. Guttell of counsel), for respondent-appellant.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for discrimination in employment on the basis of age and disability in violation of Executive Law § 296, the plaintiff appeals and the defendant cross-appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), dated March 28, 2016. The order, insofar as appealed from, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment on the issue of liability or, in the alternative, to strike the defendant's answer for failure to comply with discovery demands. The order, insofar as cross-appealed from, in effect, denied that branch of the defendant's motion which was for an award of costs and attorney's fees.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff was employed as a part-time pharmacist at Jamaica Hospital Medical Center (hereinafter JHMC) from August 2001 until she was terminated from her position in May 2014. The plaintiff commenced this action, alleging that JHMC discriminated against her on the basis of her age and disability in violation of Executive Law § 296. The plaintiff sought damages and reinstatement to her former position. In December 2015, JHMC moved for summary judgment dismissing the complaint and for an award of costs and attorney's fees. The plaintiff opposed JHMC's motion and cross-moved for summary judgment on the issue of liability or, in the alternative, to strike JHMC's answer for failure to comply with discovery demands. In an order dated March 28, 2016, the Supreme Court, inter alia, granted that branch of JHMC's motion which was for summary judgment dismissing the complaint, in effect, denied that branch of JHMC's motion which was for an award of costs and attorney's fees, and denied the plaintiff's cross motion. The plaintiff appeals and JHMC cross-appeals from stated portions of the order.
We agree with the Supreme Court's determination granting that branch of JHMC's motion which was for summary judgment dismissing the complaint and denying that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability. JHMC established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not perform the essential functions of the position of a pharmacist (see Evans v. City of New York, 64 A.D.3d 468, 883 N.Y.S.2d 478 ; McCarthy v. St. Francis Hosp., 41 A.D.3d 794, 840 N.Y.S.2d 800 ; Timashpolsky v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 A.D.2d 271, 273, 761 N.Y.S.2d 94 ) and by showing legitimate, independent, and nondiscriminatory reasons for its employment decision (see Tibbetts v. Pelham Union Free Sch. Dist., 143 A.D.3d 806, 807–808, 39 N.Y.S.3d 195 ; Kulaya v. Dunbar Armored, Inc., 110 A.D.3d 772, 772–773, 972 N.Y.S.2d 659 ; Thide v. New York State Dept. of Transp., 27 A.D.3d 452, 453, 811 N.Y.S.2d 418 ; Scardace v. Mid Is. Hosp., Inc., 21 A.D.3d 363, 800 N.Y.S.2d 42 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she could perform her duties in a reasonable manner with reasonable accommodation or that the reasons stated for her discharge were pretextual (see Timashpolsky v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 A.D.2d at 273, 761 N.Y.S.2d 94 ).
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's cross motion which was to strike JHMC's answer for failure to comply with discovery demands. "[T]he drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ( Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d 726, 726–727, 864 N.Y.S.2d 79 [internal quotation marks omitted]; see Laskin v. Friedman, 90 A.D.3d 617, 617–618, 933 N.Y.S.2d 872 ; Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 A.D.3d 784, 857 N.Y.S.2d 697 ; Voutsinas v. Voutsinas, 43 A.D.3d 1156, 1157, 843 N.Y.S.2d 130 ). Here, the plaintiff failed to demonstrate that JHMC's actions in failing to produce a certain witness for a deposition and in failing to respond to the plaintiff's discovery demands was the product of willful, contumacious, or bad faith conduct (see Laskin v. Friedman, 90 A.D.3d at 617–618, 933 N.Y.S.2d 872 ; Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 A.D.3d 784, 857 N.Y.S.2d 697 ; Voutsinas v. Voutsinas, 43 A.D.3d at 1157, 843 N.Y.S.2d 130 ; Esteva v. Catsimatidis, 4 A.D.3d 210, 211, 772 N.Y.S.2d 267 ).
The Supreme Court providently exercised its discretion in, in effect, denying that branch of JHMC's motion which was for an award of costs and attorney's fees (see 22 NYCRR 130–1.1 [c]; Gelobter v. Fox, 90 A.D.3d 829, 832, 935 N.Y.S.2d 59 ; Correnti v. Suffolk County Dist. Attorney, 88 A.D.3d 633, 634, 930 N.Y.S.2d 624 ).
The plaintiff's remaining contention is without merit.
LEVENTHAL, J.P., COHEN, HINDS–RADIX and CONNOLLY, JJ., concur.