Walker v. Connetquot Central School District of Islip Central School Offices

In an action, inter alia, to recover damages for employment discrimination pursuant to Executive Law § 296, the defendants appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), entered February 4, 2003, which denied their motion for summary judgment dismissing the cause of action alleging employment discrimination pursuant to Executive Law § 296.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the cause of action alleging employment discrimination pursuant to Executive Law § 296 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In response to the plaintiffs allegations of discrimination based on his disability set forth in his complaint, the defendants offered evidence that the plaintiff was demoted for a legitimate, nondiscriminatory reason, thereby making out a prima facie case for summary judgment. However, in opposition, the plaintiff offered sufficient evidence to raise a question of fact as to whether he was reasonably able to perform his job duties, and whether his demotion from head custodian to groundskeeper was based on his disability (see Executive Law § 296; Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]; Matter of McEniry v Landi, 84 NY2d 554, 558 [1994]; Matter of Miller v Ravitch, 60 NY2d 527, 532 [1983]). Ritter, J.P., S. Miller, Adams and Cozier, JJ., concur.