Kurylov v. Icahn School of Medicine at Mount Sinai

Kurylov v Icahn School of Medicine at Mount Sinai (2016 NY Slip Op 03600)

Kurylov v Icahn School of Medicine at Mount Sinai

2016 NY Slip Op 03600

Decided on May 5, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 5, 2016
Mazzarelli, J.P., Acosta, Moskowitz, Gische, Webber, JJ.

825 162005/14

[*1]Adaobi Kurylov, Plaintiff-Respondent,

v

Icahn School of Medicine at Mount Sinai, et al., Defendants-Appellants.

Blank Rome LLP, New York (Rory J. McEvoy of counsel), for appellants.

Giskan Solotaroff Anderson & Stewart LLP, New York (Jason L. Solotaroff of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered October 8, 2015, which, to the extent appealed from as limited by the briefs, denied defendants' (Mt. Sinai) motion to dismiss the complaint pursuant to CPLR 3211(c), unanimously affirmed, without costs.

Plaintiff, a black woman from Nigeria, alleges that she was terminated from Mt. Sinai's residency program in pathology because of her race and/or national origin. Mt. Sinai brought a motion to dismiss pursuant to CPLR 3211, seeking, alternatively, that the court convert the motion to one for summary judgment pursuant to CPLR 3211(c). The motion court expressly declined to treat the motion as one for summary judgment. Consequently, no notice of any conversion was given, precluding our deciding this appeal under the summary judgment standard (see Brathwaite v Frankel, 98 AD3d 444 [1st Dept 2012]). This case does not pose any exception to the notice requirement under CPLR 3211(c), because the questions raised about whether plaintiff has any evidence of discrimination, are not solely ones of law or statutory interpretation. Nor did plaintiff ever indicate that she joined in deliberately charting a summary judgment course (see Braithwaite, at 444-445; see Spilka v Town of Inlet, 8 AD3d 812 [3d Dept 2004]). Viewing plaintiff's complaint under the liberal standard afforded to the pleader under CPLR 3211, we find that the complaint states a cause of action. We do not reach the merits of whether defendant is entitled to summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 5, 2016

DEPUTY CLERK