KELLY v. POUGHKEEPSIE AREA CHAMBER OF COMMERCE (1999)

In an action pursuant to Executive Law § 296 to recover damages for age and disability discrimination in employment, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Bellantoni, J.), entered August 19, 1998, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The defendants established their entitlement to judgment as a matter of law and the plaintiff failed to raise a triable issue of fact sufficient to defeat the defendants' motion (see, CPLR 3212[b] ).  The plaintiff, an at-will employee, was unable to perform her duties at the time of the adverse employment decision.   Accordingly, the Supreme Court properly dismissed her claim of disability discrimination (see, Executive Law § 296 [3-a][g];  Thomas v. Austrian Airlines, 216 A.D.2d 554, 555, 628 N.Y.S.2d 402;  Harbas v. Gilmore, 193 A.D.2d 553, 597 N.Y.S.2d 704;  McAuliffe v. Taft Furniture Warehouse & Showroom, 116 A.D.2d 774, 497 N.Y.S.2d 170).   In addition, the plaintiff failed to demonstrate a prima facie case of age discrimination as she failed to show that she was replaced by a person younger than herself, produce direct evidence of discriminatory intent, or produce statistical evidence of discriminatory conduct (see, Bockino v. Metropolitan Transp. Auth., 224 A.D.2d 471, 472, 638 N.Y.S.2d 137).

MEMORANDUM BY THE COURT.