Alvarez v. N.Y.C. Transit Auth.

2024 NY Slip Op 04185

Lautaro I. Alvarez, appellant, v. New York City Transit Authority, et al., respondents.

No. 2022-05012

Index No. 706394/19

Supreme Court of New York, Second Department

August 14, 2024

Akin Law Group PLLC, New York, NY (Olena Tatura of counsel), for appellant.

David I. Farber, Brooklyn, NY (Kristen M. Nolan of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P. CHERYL E. CHAMBERS, DEBORAH A DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of disability in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered March 14, 2022. The order, insofar as appealed from, granted those branches of the defendants' motion which were for summary judgment dismissing the first and fourth causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff began working for the defendant New York City Transit Authority (hereinafter NYCTA) in 2015 as a telephone maintainer and was primarily assigned to work the 4:00 p.m to 12:00 a.m. shift. In August 2016, the plaintiff sustained a ruptured brain aneurysm. In January 2017, the plaintiff was cleared to return to work with no restrictions and resumed working his 4:00 p.m. to 12:00 a.m. shift. In May 2017, as the result of a "pick" procedure by which NYCTA employees choose their shift in order of seniority, the plaintiff was assigned to work the 10:00 p.m. to 6:00 a.m shift beginning on May 28, 2017. The plaintiff asked his supervisor to be allowed to work the day or evening shift instead to avoid developing headaches and submitted a note from his primary care physician dated May 17, 2017, stating that the plaintiff was still recovering from the aneurysm and "is advised to work regular day or evening shifts." In response, the supervisor advised the plaintiff, among other things, to undergo a medical exam at NYCTA's medical assessment center since the plaintiff had previously been cleared to return to work with no restrictions. The plaintiff did not undergo the medical exam and instead resigned on May 27, 2017, before the shift change was scheduled to take effect.

Thereafter, the plaintiff commenced this action against NYCTA, among others, alleging, inter alia, that the defendants failed to provide a reasonable accommodation for his disability in violation of the New York State Human Rights Law (Executive Law § 296; hereinafter NYSHRL) (first cause of action) and the New York City Human Rights Law (Administrative Code of City of NY § 8-107; hereinafter NYCHRL) (fourth cause of action). The defendants moved, among other things, for summary judgment dismissing the first and fourth causes of action. In an order entered March 14, 2022, the Supreme Court, inter alia, granted those branches of the motion. The plaintiff appeals.

The Supreme Court properly granted those branches of the defendants' motion which were for summary judgment dismissing the first and the fourth causes of action. "[T]he [NYSHRL] forbids employment discrimination on the basis of an employee's disability, and the [NYCHRL] provides even greater protection against disability-based discrimination" (Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833-834). Under the NYSHRL, "if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a 'disability' within the meaning of the statute, and the employer cannot disadvantage the employee based on that disability" (id. at 834). The NYCHRL's definition of "disability" does not include "reasonable accommodation," but the NYCHRL "requires that an employer 'shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job'" (Pimentel v Citibank, N.A., 29 A.D.3d 141, 145, quoting Administrative Code § 8-107[15][a]; see Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d at 834-835; Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 885). Thus, "under both statutes an employee's request for an accommodation is relevant to the determination of...