Opinion
09-26-2017
Robert SASS, Plaintiff–Appellant, v. HEWLETT–PACKARD, Defendant–Respondent.
Kaiser Saurborn & Mair, P.C., New York (Daniel J. Kaiser of counsel), for appellant. Cozen O'Connor, New York (Michael C. Schmidt of counsel), for respondent.
Kaiser Saurborn & Mair, P.C., New York (Daniel J. Kaiser of counsel), for appellant.
Cozen O'Connor, New York (Michael C. Schmidt of counsel), for respondent.
RICHTER J.P., MOSKOWITZ, GESMER, SINGH, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 24, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff has failed to point to any evidence to support an inference that he was terminated on account of his age (see Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35, 40–41, 936 N.Y.S.2d 112 [1st Dept.2011], lv. denied 18 N.Y.3d 811, 2012 WL 1432090 [2012] ). Plaintiff points to no direct evidence of age-related bias, and he testified that he never heard of any remarks made about his age. His claim of age discrimination instead rests entirely on the allegation that he was replaced by a younger employee. The record does not state the age of the woman who allegedly replaced him, however, but instead contains only witnesses' "guess [es]" that she was in her "mid–40s." Such "conjecture" as to an alleged replacement employee's age does not suffice to raise a triable issue of fact on a motion for summary judgment ( Grella v. St. Francis Hosp., 149 A.D.3d 1046, 1049, 53 N.Y.S.3d 330 [2d Dept.2017] ; see Soho Ctr. for Arts & Educ. v. Church of St. Anthony of Padua, 146 A.D.2d 407, 411, 541 N.Y.S.2d 396 [1st Dept.1989] ).
The record provides no basis to find that the alleged replacement was substantially younger than plaintiff, as required to support an inference of age discrimination in the absence of direct or statistical evidence (see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 114–115 and n. 2, 946 N.Y.S.2d 27 [1st Dept.2012] ; Weit v. Flaum, 258 A.D.2d 286, 286–287, 685 N.Y.S.2d 654 [1st Dept.1999] ).