Byas v. Cornell Univ. , 2018 NY Slip Op 3939 ( 2018 )

Byas v Cornell Univ. (2018 NY Slip Op 03939)

Byas v Cornell Univ.

2018 NY Slip Op 03939

Decided on June 5, 2018

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 June 5, 2018
Friedman, J.P., Sweeny, Gische, Mazzarelli, Gesmer, JJ.

6768 151694/14

[*1]Lisa Byas, Plaintiff-Respondent,

v

Cornell University, Defendant-Appellant, Guy Mazza, Defendant.

Venable LLP, New York (Brian J. Clark of counsel), for appellant.

Tuckner, Sipser, Weinstock & Sipser, LLP, New York (William J. Sipser of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about September 19, 2017, which denied the motion of defendant Cornell University for summary judgment dismissing the amended complaint, unanimously modified, on the law, to grant the motion to the extent of dismissing the second cause of action for aiding and abetting discrimination, and otherwise affirmed, without costs.

Defendant asserted that it laid plaintiff off as part of a legitimate, nondiscriminatory departmental restructuring in which it effectively eliminated her position by transferring responsibility for her duties to its partner hospital. Viewing the record in the light most favorable to plaintiff as nonmovant, we find that in opposition, plaintiff raised issues of fact as to whether defendant's proffered reason was a pretext for disability discrimination.

Since the only individual defendant has already been dismissed from the action, there is no basis for maintenance of the aiding and abetting theory pleaded in the amended complaint's second cause of action (see Administrative Code of City of NY § 8-107[6]; see also Priore v New York Yankees, 307 AD2d 67, 74 [1st Dept 2003], lv denied 1 NY3d 504 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 5, 2018

CLERK