Opinion
570200/07.
Decided July 18, 2008.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Matthew F. Cooper, J.), entered February 14, 2007, which granted defendants' motion for summary judgment dismissing the complaint.
Appeal from order (Matthew F. Cooper, J.), entered February 14, 2007, deemed an appeal from the ensuing judgment (Matthew F. Cooper, J.), entered March 8, 2007, and so considered, judgment affirmed, without costs.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Plaintiff commenced two prior actions in federal court against defendant Lakeside Family Children's Services (Lakeside), his former employer, asserting employment discrimination on the basis of race, sex and disability. Plaintiff's federal action claiming disability discrimination was dismissed as untimely. The separate federal action seeking damages for retaliation and wrongful termination based upon race, color and gender was dismissed on the merits after the court found that Lakeside had proffered a legitimate, nondiscriminatory reason for terminating plaintiff's employment for cause. Plaintiff then commenced this state action restating his disability discrimination claim.
Even if plaintiff's disability discrimination claim is not precluded under the doctrine of collateral estoppel ( compare Peterkin v Episcopal Social Services of New York, Inc., 24 AD3d 306, with Jordan v Bates Advertising Holdings, Inc., 292 AD2d 205), we find that defendants established their entitlement to summary judgment on the merits. In order to establish a prima facie case of employment discrimination due to a disability under New York's Executive Law and New York City's Administrative Code, a plaintiff must show that he or she suffers from a disability and that the disability caused the behavior for which he or she was terminated. "Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate that . . . the employee's termination was motivated by a legitimate nondiscriminatory reason" ( see Matter of McEniry v Landi, 84 NY2d 554, 558). If the employer establishes a legitimate, nondiscriminatory basis for the termination, the burden shifts back to the plaintiff to raise a triable issue as to whether the stated reason was pretextual ( see Pimentel v Citibank, N.A., 29 AD3d 141, lv denied 7 NY3d 707).
Assuming, in plaintiff's favor, that he established a prima facie case, he failed to meet his consequent burden to show that the legitimate, nondiscriminatory reason proffered by defendants for terminating his employment was false and that the actual reason for his termination was his disability ( see Ferrante v American Lung Assn., 90 NY2d 623, 631). The evidence submitted below demonstrated that plaintiff, an independent living coordinator for abused and underprivileged youth, stated in his employment application with Lakeside that he had not been convicted of a felony in the seven years prior to the application date. When a subsequent criminal background check revealed that plaintiff had in fact been convicted of sale of a controlled substance on or near school grounds, a felony, Lakeside discharged plaintiff for falsifying his employment application. Inasmuch as plaintiff offered no evidence to raise a triable issue as to whether defendants' stated reason for terminating his employment was pretextual ( see Timashpolsky v State University of New York Health Science Center at Brooklyn, 306 AD2d 271), summary judgment dismissing plaintiff's disability discrimination claim was properly granted.
We have considered plaintiff's remaining arguments and find them lacking in merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.