Cefalo v. New York Medical College

Order and judgment, Supreme Court, New York County (William Davis, J.), entered September 19 and October 12, 1990, respectively, which granted defendant’s motion for summary judgment (CPLR 3212) dismissing the complaint, unanimously affirmed, without costs. In 1981, plaintiff, who worked as a laboratory manager at Metropolitan Hospital under the auspices of defendant, New York Medical College, voluntarily went on permanent disability status due to a vertigo condition. In 1983, plaintiff requested reinstatement to his former position, but since he was not yet physically able to return fully to said position, he was not reinstated. In 1986, the laboratory management position formerly held by plaintiff was "rolled over” to the control of Health and Hospitals Corporation ("HHC”). Defendant no longer effectively controlled the position. In fact, the position was upgraded and filled by HHC in August 1986. Plaintiff was denied reinstatement in 1986, after the "rollover” occurred. Plaintiff then instituted this suit alleging age and disability employment discrimination pursuant to Executive Law § 296. The IAS court granted defendant’s motion to dismiss the complaint. The evidence demonstrates that in 1986, defendant was not the "employer” who controlled the position in question. (See, Germakian v Kenny Intl. Corp., 151 AD2d 342.) Due to the "roll-over”, the laboratory management position was transferred to the aegis of HHC. Under these circumstances, plaintiff has no discrimination claim against defendant. Moreover, there is no evidence of any alleged discrimination [355] in this case. Plaintiff has failed to present evidence demonstrating that he had recovered from his disability in 1986 (see, Matter of National Basketball Assn. v New York State Div. of Human Rights, 115 AD2d 365, affd 68 NY2d 644) or that defendant discriminated against him due to his age. (See, Hill v Westchester Aeronautical Corp., 112 AD2d 977.) Concur— Milonas, J. P., Rosenberger, Ellerin, Ross and Rubin, JJ.