Opinion
825, 162005/14.
05-05-2016
Adaobi KURYLOV, Plaintiff–Respondent, v. ICAHN SCHOOL OF MEDICINE AT MOUNT SINAI, et al., Defendants–Appellants.
Blank Rome LLP, New York (Rory J. McEvoy of counsel), for appellants. Giskan Solotaroff Anderson & Stewart LLP, New York (Jason L. Solotaroff of counsel), for respondent.
Blank Rome LLP, New York (Rory J. McEvoy of counsel), for appellants.
Giskan Solotaroff Anderson & Stewart LLP, New York (Jason L. Solotaroff of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 8, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' (Mt.Sinai) motion to dismiss the complaint pursuant to CPLR 3211(c), unanimously affirmed, without costs.
Plaintiff, a black woman from Nigeria, alleges that she was terminated from Mt. Sinai's residency program in pathology because of her race and/or national origin. Mt. Sinai brought a motion to dismiss pursuant to CPLR 3211, seeking, alternatively, that the court convert the motion to one for summary judgment pursuant to CPLR 3211(c). The motion court expressly declined to treat the motion as one for summary judgment. Consequently, no notice of any conversion was given, precluding our deciding this appeal under the summary judgment standard (see Brathwaite v. Frankel, 98 A.D.3d 444, 949 N.Y.S.2d 678 [1st Dept.2012] ). This case does not pose any exception to the notice requirement under CPLR 3211(c), because the questions raised about whether plaintiff has any evidence of discrimination, are not solely ones of law or statutory interpretation. Nor did plaintiff ever indicate that she joined in deliberately charting a summary judgment course (see Brathwaite, at 444–445; see Spilka v. Town of Inlet, 8 A.D.3d 812, 778 N.Y.S.2d 222 [3d Dept.2004] ). Viewing plaintiff's complaint under the liberal standard afforded to the pleader under CPLR 3211, we find that the complaint states a cause of action. We do not reach the merits of whether defendant is entitled to summary judgment.