| Duckett v New York Presbyt. Hosp. |
| 2015 NY Slip Op 06012 |
| Decided on July 9, 2015 |
| 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 July 9, 2015
Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ.
15623 114004/10
v
New York Presbyterian Hospital, Defendant-Appellant.
Epstein Becker & Green, P.C., New York (James S. Frank and Jill Barbarinc of counsel), for appellant.
The Dweck Law Firm, LLP, New York (H.P. Sean Dweck and Chris Fraser of counsel), for respondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 23, 2014, which denied defendant hospital's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Issues of fact exist as to whether the hospital unlawfully terminated petitioner's employment because of her disability. There is evidence in the record that plaintiff was suffering from a mental illness that was affecting her job performance before the hospital terminated her employment. There is also evidence that hospital employees, including plaintiff's supervisor, were aware of her physical and mental health issues shortly before she took medical leave, and that her supervisor was concerned about her fitness to work upon her return (compare Hazen v Hill Betts & Nash, LLP, 92 AD3d 162 [1st Dept 2012], lv denied 19 NY3d 812 [2012] [determination that employer unlawfully discriminated against employee was not supported by substantial evidence where there was no evidence that the petitioner was suffering from a mental illness or that the employer knew, before it terminated the petitioner's employment, that the petitioner was disabled by his alleged disorder or that the disorder limited his performance]).
Plaintiff is not estopped from asserting her discrimination claims under the State and City Human Rights Laws. Her application for, and receipt of, federal and state disability benefits is not inconsistent with her claims (Cleveland v Policy Management Systems Corp., 526 US 795 [1999]). Further, the hospital has not established, as a matter of law, that plaintiff could not have performed her job duties with a reasonable accommodation.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 9, 2015
CLERK