Opinion
March 23, 2000
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 23, 1998, which, insofar as appealed from, denied defendants' motion to dismiss the first two causes of action for failure to state a cause of action, unanimously reversed, on the law, without costs, the motion granted, and those causes of action dismissed.
Alan J. Rich, for plaintiff-respondent.
Rebecca Northey, for defendants-appellants.
TOM, J.P., RUBIN, ANDRIAS, BUCKLEY, FRIEDMAN, JJ.
Initially, plaintiff's failure to plead the specific discriminatory practices prohibited by the New York Administrative Code § 8-107(7) and the New York Executive Law § 296(7) as predicates for her claim of unlawful retaliation would be grounds for dismissal (Edwards v. Board of Trustees of Colgate Rochester Divinity School, 254 A.D.2d 709). However, on the merits, those provisions establish a standard that plaintiff was discriminated against "because of" her actual or perceived disability, and that the plaintiff thereby was refused various benefits. Plaintiff does not allege that she, herself, is disabled. This standard is not satisfied by plaintiff's allegations that her employment was terminated in connection with her alleged advocacy on behalf of the institutional defendant's disabled clients. Plaintiff establishes, at best, defendant's possible misconduct unaccompanied by any discriminatory intent as required by the statute. Rather, plaintiff's allegations suggest misconduct generally affecting disabled persons under defendant's care, with their disability being only the occasion, but not the cause, of the alleged mistreatment. In that regard, plaintiff has failed to make the requisite showing in support of her unlawful retaliation claim that she was engaged in a protected activity known to the alleged retaliator, that she suffered an adverse employment action while engaged in the protected activity, and that there was a causal connection between the protected activity and the adverse employment action (Pace University v. New York City Commission on Human Rights, 200 A.D.2d 173, 182-183, revd on other grounds 85 N.Y.2d 125;see, Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 292), requiring dismissal of the claims.
We have considered plaintiff's remaining contentions and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.