Robert Browne, respondent, v. Board of Education, et al., appellants. (2014)

Argued—September 29, 2014

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered July 8, 2013, as denied that branch of their motion which was for summary judgment dismissing the first cause of action, which alleged employment discrimination based on gender.

ORDERED that the order is affirmed insofar as appealed from, with costs.

By failing to raise collateral estoppel as an affirmative defense to the cause of action alleging employment discrimination either in their pre-answer motion to dismiss or in their answer, the defendants waived it (see CPLR 3211[a] [5], [e] ).

In opposition to the defendants' prima facie showing that there was a legitimate, nondiscriminatory reason for charging the plaintiff with misconduct, the plaintiff's submissions raised a triable issue of fact as to whether this reason was false, misleading, or incomplete, and thus, a pretext for discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305;  Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 41).

Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiff's first cause of action, which alleged employment discrimination based on gender.

BALKIN, J.P., CHAMBERS, MILLER and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court