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Supreme Court, Appellate Division, First Department, New York.

John EVANS, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: July 14, 2009

ANDRIAS, J.P., FRIEDMAN, BUCKLEY, ACOSTA, DeGRASSE, JJ. Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), for respondents.

Order, Supreme Court, New York County (Paul George Feinman, J.), entered August 17, 2007, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to make a prima facie showing of discrimination pursuant to Executive Law § 296(1) (see Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019 [1994] ).   While he demonstrated that he suffered from a mental impairment, he failed to present evidence sufficient to raise an inference that he could perform his job with reasonable accommodations (Executive Law § 292[21];  Pimentel v. Citibank, N.A., 29 A.D.3d 141, 146, 811 N.Y.S.2d 381 [2006] ), lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006].   Nor did he show that he proposed a reasonable accommodation that defendant refused to make (see Pimentel at 148, 811 N.Y.S.2d 381).   In any event, defendants demonstrated that their actions were motivated by legitimate nondiscriminatory reasons, and plaintiff presented no evidence from which to infer that those reasons were pretextual (see McEniry, 84 N.Y.2d at 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019).

Plaintiff's claim for constructive discharge similarly failed, since he did not establish that defendants' actions resulted in a workplace atmosphere “so intolerable as to compel a reasonable person to leave” (Morris v. Schroder Capital Mgt. Intl., 7 N.Y.3d 616, 622, 825 N.Y.S.2d 697, 859 N.E.2d 503 [2006];  Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 [2d Cir.1993] ).