PESKIN v. NEW YORK CITY TRANSIT AUTHORITY (2003)

In an action to recover damages for age discrimination, the defendant appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 11, 2002, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The general standards regarding the parties' respective burdens of proof on a motion for summary judgment are applicable in an age discrimination case (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629-31, 665 N.Y.S.2d 25, 687 N.E.2d 1308).   As the party seeking summary judgment, the appellant has the burden of demonstrating its entitlement thereto as a matter of law (see Smith v. AT & T Resource Mgt. Corp., 259 A.D.2d 480, 686 N.Y.S.2d 95).   Anything less requires the denial of its motion (see Gaetano Marzotto & Figli v. Filene's Basement, 213 A.D.2d 591, 624 N.Y.S.2d 625).   Moreover, “ ‘[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense’ ” (Pace v. International Bus. Mach. Corp., 248 A.D.2d 690, 691, 670 N.Y.S.2d 543, quoting Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894;  see Dalton v. Educational Testing Serv., 294 A.D.2d 462, 463, 742 N.Y.S.2d 364).   In accordance with these rules, the appellant's motion was properly denied.

 The plaintiff pleaded a cognizable claim of age discrimination.   The plaintiff alleged that in accordance with the appellant's hiring policy, upon the commencement of her civil service employment with the appellant, she was denied a starting salary increase above her former civil service salary with a different New York City government agency.   She further alleged that other, younger, comparable employees did receive increased starting salaries above the salaries they earned in their prior New York City government civil service positions (see Matter of Classic Coach v. Mercado, 280 A.D.2d 164, 170, 722 N.Y.S.2d 551).

 In support of its motion for summary judgment dismissing the complaint, the appellant offered specific evidence as to only two comparable employees, younger than the plaintiff, both of whom did receive raises upon commencement of employment.   Although the appellant contended that one such comparable employee deserved a higher starting salary due to his experience, it failed to offer any proof as to why the other comparable associate staff analyst received an increase in contravention of the alleged no-raise policy;  the plaintiff subsequently received a retroactive increase to achieve parity with this employee.   Furthermore, the appellant failed to offer any evidence as to alleged disparate treatment between the plaintiff and other younger employees who allegedly received starting salary increases denied to the plaintiff.   Accordingly, since the appellant failed to demonstrate its prima facie entitlement to summary judgment, its motion was properly denied.