KAPILA v. DIVNEY (2000)

Order, Supreme Court, New York County (Elliott Wilk, J.), entered October 21, 1998, which granted defendant's motion for summary judgment dismissing the complaint, but denied summary judgment on defendant's counterclaims, unanimously affirmed, without costs.

In this employment discrimination case, plaintiff, a licensed architect, alleges that she was fired from her position as an associate after 14 years of increasingly responsible employment with defendant engineering firm because of her sex.

Viewing the evidence most favorably to plaintiff, we agree with the IAS court that plaintiff fails to make out a prima facie case of sex discrimination in that she has presented no evidence that she was replaced by a male employee, a necessary element of such cause of action (see generally, Fisher v. Vassar College, 114 F.3d 1332, cert. denied 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752).   Even were we to find that plaintiff had met the minimal burden of establishing a prima facie case, defendant has clearly established that plaintiff was discharged for poor work performance, a legitimate, non-discriminatory reason (id ).   Inasmuch as a trial is required on defendant's counterclaims on the promissory note, plaintiff is entitled to raise any appropriate defenses asserted in her verified reply.

MEMORANDUM DECISION.