Opinion
2003-01829.
Decided May 24, 2004.
In an action, inter alia, to recover damages for employment discrimination pursuant to Executive Law § 296, the defendants appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), entered February 4, 2003, which denied their motion for summary judgment dismissing the cause of action alleging employment discrimination pursuant to Executive Law § 296.
Miranda Sokoloff, LLP, Mineola, N.Y. (Bruce R. Calderon of counsel), for appellants.
Cronin Byczek, LLP, Lake Success, N.Y. (Linda M. Cronin, Anthony M. Mahoney, and Rocco Avallone of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the defendants' motion for summary judgment dismissing the cause of action alleging employment discrimination pursuant to Executive Law § 296 ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In response to the plaintiff's allegations of discrimination based on his disability set forth in his complaint, the defendants offered evidence that the plaintiff was demoted for a legitimate, nondiscriminatory reason, thereby making out a prima facie case for summary judgment. However, in opposition, the plaintiff offered sufficient evidence to raise a question of fact as to whether he was reasonably able to perform his job duties, and whether his demotion from Head Custodian to Groundskeeper was based on his disability ( see Executive Law § 296; Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631; Matter of McEniry v. Landi, 84 N.Y.2d 554, 558; Matter of Miller v. Ravitch, 60 N.Y.2d 527, 532).
RITTER, J.P., S. MILLER, ADAMS and COZIER, JJ., concur.