IN RE: Irving JOCHELMAN (2008)

Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered September 7, 2007, which, in an article 78 proceeding seeking to annul respondents' determination denying petitioner a promotion to the position of Principal Bank Examiner I, granted respondents' cross motion to dismiss the petition as a matter of law, unanimously reversed, on the law, without costs, to the extent that the petition seeks damages under the Americans with Disabilities Act (ADA), the ADA claim reinstated and deemed to be brought in the form of a plenary action, and the remainder of the appeal dismissed as moot.   Appeal from order, same court and Justice, entered October 23, 2007, which, to the extent appealable, denied petitioner's motion to renew the petition, unanimously dismissed, without costs, as moot.

Prior to this appeal, petitioner was promoted to the position at issue, rendering moot that portion of his appeal seeking back pay (see Szipcek v. Safir, 291 A.D.2d 269, 737 N.Y.S.2d 600 [2002] ).   Nevertheless, petitioner's separate claim for damages related to respondents' allegedly discriminatory behavior has not been rendered moot by petitioner's promotion, and his ADA claim is not without merit as a matter of law (see Americans with Disabilities Act of 1990, § 2 et seq., 42 USCA § 12101 et seq.).   The record raises factual issues as to whether respondents failed to make reasonable accommodations for petitioner's request, based on medical grounds, for alternative workspace.   We therefore remand the matter for further proceedings.