MATZ v. PROSPECT ENERGY CORPORATION (2009)

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 19, 2008, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed in this action where plaintiff, a job applicant for a senior management position, alleges that defendants refused to hire him after inquiring and learning of his sexual orientation during a reference check.   Plaintiff did not establish a prima facie case of discrimination inasmuch as he failed to show that he was denied employment under circumstances giving rise to an inference of discrimination (see Brennan v. Metropolitan Opera Assn., 284 A.D.2d 66, 70, 729 N.Y.S.2d 77 [2001] ).

The documentary evidence shows that defendants maintained throughout the hiring process that they did not offer plaintiff a job, but were interested in evaluating his capabilities by having him work on various projects.   The evidence further demonstrates that prior to learning of plaintiff's sexual orientation, defendants had concerns regarding plaintiff's skills and rejected his aggressive style and attempts to accelerate the hiring process (see Bishop v. Maurer, 33 A.D.3d 497, 498, 823 N.Y.S.2d 366 [2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] [on motion to dismiss “court ․ is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence”] ).

Plaintiff failed to show any facts as to warrant discovery pursuant to CPLR 3211(d) (see e.g. Fitz-Gerald v. Donaldson, Lufkin & Jenrette, 294 A.D.2d 176, 741 N.Y.S.2d 682 [2002] ).

We have considered plaintiff's remaining arguments and find them unavailing.