Opinion
Submitted May 3, 2001.
May 29, 2001.
In an action, inter alia, to recover damages for discrimination based upon race pursuant to the New York State Human Rights Law (Executive Law art 15), the defendant appeals from so much of an order of the Supreme Court, Kings County (Mason, J.), dated November 14, 2000, as denied its motion for summary judgment dismissing the complaint.
Marc E. Bernstein, New York, N.Y. (P. Kevin Connelly, pro hac vice, and Kristine Aubin, pro hac vice, of counsel), for appellant.
Leavitt, Kerson Leffler, New York, N.Y. (Paul E. Kerson of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN and STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant demonstrated the absence of a prima facie case of discrimination under Executive Law — 296 and that it had a facially valid, independent, and nondiscriminatory reason for the questioned conduct (see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631). The burden then shifted to the plaintiff to raise a material issue of fact with respect to whether the claimed reason for the defendant's failure to promote her and for her termination was, in reality, merely a pretext for illegal discrimination (see, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253; see also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804; cf., Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939). However, the plaintiff proffered nothing beyond bare, unsubstantiated assertions of animus towards her because of her race (see, Negron v. New York Med. Coll., 277 A.D.2d 292; Trovato v. Air Express Intl., 254 A.D.2d 349; Matter of Engoren v. County of Nassau, 163 A.D.2d 520, 521). There is ample evidence that the plaintiff was discharged, not because of unlawful discrimination, but because of her unsatisfactory job performance. Thus, the plaintiff failed to establish the existence of any material issue of fact (cf., Ferrante v. American Lung Assn., supra, at 631).
SANTUCCI, J.P., GOLDSTEIN, FEUERSTEIN and CRANE, JJ., concur.