APIADO v. NORTH SHORE UNIVERSITY HOSPITAL AT SYOSSET

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

Pilar Lopez APIADO, appellant, v. NORTH SHORE UNIVERSITY HOSPITAL (AT SYOSSET), respondent.

Decided: October 27, 2009

PETER B. SKELOS, J.P., JOSEPH COVELLO, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. David Schecter, Wantagh, N.Y., for appellant. Garfunkel, Wild & Travis, P.C., Great Neck, N.Y. (Wilhelmina A. De Harder and Marianne Monroy of counsel), for respondent.

In an action, inter alia, to recover damages for discrimination in employment on the basis of age and race in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered April 3, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff worked as a laboratory technician in the defendant hospital's blood bank.   She was discharged from this position after mistakenly dispensing a unit of blood from the general blood bank supply for transfusion into a post-operative patient who had previously deposited a unit of her own blood to be used by her as needed.   The plaintiff alleges that her termination was, inter alia, motivated by her age and race, and that the reasons provided by the defendant were pretextual.

 To establish entitlement to summary judgment in a case alleging discrimination, a defendant “must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual” (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998;  see Morse v. Cowtan & Tout, Inc., 41 A.D.3d 563, 838 N.Y.S.2d 162;  Cesar v. Highland Care Ctr., Inc., 37 A.D.3d 393, 394, 829 N.Y.S.2d 236;  DelPapa v. Queensborough Community Coll., 27 A.D.3d 614, 810 N.Y.S.2d 674;  Hemingway v. Pelham Country Club, 14 A.D.3d 536, 789 N.Y.S.2d 178).

Here, the defendant established, prima facie, that it terminated the plaintiff's employment for legitimate, nondiscriminatory reasons. In response, the plaintiff failed to raise a triable issue of fact as to whether the defendant's proffered reasons for termination were merely pretextual (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25, 687 N.E.2d 1308;  Morse v. Cowtan & Tout, Inc., 41 A.D.3d at 564, 838 N.Y.S.2d 162;  Cesar v. Highland Care Ctr., Inc., 37 A.D.3d 393, 394, 829 N.Y.S.2d 236).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

In light of the foregoing, the defendant's arguments regarding, inter alia, election of remedies and collateral estoppel, have been rendered academic.

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