Taylor v. New York University Medical Center , 768 N.Y.S.2d 322 ( 2003 )

Order of the Appellate Term of the Supreme Court, First Department, entered February 7, 2002, which, to the extent appealed from as limited by the brief, affirmed that part of an order of the Civil Court, New York County (Faviola Soto, J.), entered July 31, 2000, denying so much of defendants’ motion as sought summary judgment dismissing plaintiffs first cause of action, unanimously affirmed, without costs.

Plaintiff claims discrimination on the basis of sexual orientation (see Administrative Code of City of NY § 8-101 et seq.), and has made out a prima facie case (see Brennan v Metropolitan Opera Assn., 284 AD2d 66, 70 [2001]). While defendants have set forth evidence of a legitimate, independent, nondiscriminatory reason to support the decision to terminate plaintiff’s employment (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]), specifically, a reorganization (see Brown v General Elec. Co., 144 AD2d 746, 747 [1988]), plaintiff has responded with evidence sufficient to raise a triable question of fact as to whether the proffered reason is a mere pretext for discrimination (Brennan, supra; and see Ferrante, 90 NY2d at 630).

Since defendants have not given plaintiff a chance to respond factually to their argument on behalf of the individual defendant in reliance on Patrowich v Chemical Bank (63 NY2d 541, 542 [1984]), made for the first time on appeal, and indeed, only in their reply brief, we do not reach it (see 440 E. 62nd St. Owners Corp. v 440 E. 62nd St. Assoc., 217 AD2d 426, 427 [1995]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Buckley, P.J., Tom, Sullivan and Williams, JJ. [See 2002 NY Slip Op 50060CU).]