Berliner v. Peerless Importers, Inc.

158 Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 19, 2003, which, inter alia, granted the motion of defendant Peerless Importers, Inc. for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant employer met its burden of rebutting plaintiffs’ prima facie case of age discrimination by showing that there were legitimate business reasons behind the corporate reorganization that adversely affected plaintiffs. Plaintiffs, in responding to defendant’s showing, failed to make the demonstration necessary to sustain the action, that there was a triable issue of fact as to whether the reason proffered by defendant was likely a pretext for illegal discrimination (see Scott v Citicorp Servs., 91 NY2d 823 [1997]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; DeMay v Miller & Wrubel, 262 AD2d 184 [1999]). Plaintiffs’ claim that the court should have denied the motion for summary judgment on the ground that defendant failed to provide requested discovery is without merit since plaintiffs made no showing that the documents sought contained facts “essential to justify opposition” to the motion (cf. Colicchio v Port Auth. of N.Y. & N.J., 246 AD2d 464, 465 [1998]). Concur—Nardelli, J.P., Mazzarelli, Andrias, Gonzalez and Sweeny, JJ.