        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

135
CA 12-01377
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


WILLIAM F. MARTIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

UNITED PARCEL SERVICE OF AMERICA, INC.,
DEFENDANT-APPELLANT.


GREENBERG TRAURIG, LLP, FLORHAM PARK, NEW JERSEY (WENDY JOHNSON LARIO
OF COUNSEL), FOR DEFENDANT-APPELLANT.

GARY H. COLLISON, LIVERPOOL, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Norman I. Siegel, A.J.), entered November 17, 2011. The order, among
other things, denied defendant’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
employment discrimination (see Executive Law § 296 [1], [3]), and
defendant thereafter moved for summary judgment dismissing the
complaint. Supreme Court properly denied the motion. Contrary to
defendant’s initial contention, it is not entitled to summary judgment
as a matter of law on the ground that plaintiff is not able to prove
all the elements of the causes of action in the complaint. “It is
well established . . . that ‘[a] moving party must affirmatively
[demonstrate] the merits of its cause of action or defense and does
not meet its burden by noting gaps in its opponent’s proof’ ” (Lane v
Texas Roadhouse Holdings, LLC, 96 AD3d 1364, 1364, quoting Dodge v
City of Hornell Indus. Dev. Agency, 286 AD2d 902, 903; see Brown v
Smith, 85 AD3d 1648, 1649).

     We reject defendant’s further contention that the court erred in
concluding that there are triable issues of fact with respect to
whether plaintiff could perform the essential elements of his prior
position as a center manager. Assuming, arguendo, that defendant met
its initial burden of establishing that “plaintiff could not perform
the essential functions of the position of a” center manager (McCarthy
v St. Francis Hosp., 41 AD3d 794, 794, lv denied 9 NY3d 813), we
conclude that there are triable issues of fact “whether, ‘upon the
provision of reasonable accommodations, [plaintiff was qualified to
hold his position and to] perform [ ] in a reasonable manner’ the
essential function of that position” (Dietrich v E.I. du Pont de
                                 -2-                          135
                                                        CA 12-01377

Nemours & Co., 38 AD3d 1335, 1335, quoting Executive Law § 292 [21]).
“[U]nder the broad[ ] protections afforded by the State [Human Rights
Law], the first step in providing a reasonable accommodation is to
engage in a good faith interactive process that assesses the needs of
the disabled individual and the reasonableness of the accommodation
requested” (Phillips v City of New York, 66 AD3d 170, 176). Thus,
“[t]he need for individualized inquiry when making a determination of
reasonable accommodation is deeply embedded in the fabric of
disability rights law . . . [E]mployers (and courts) must make a
clear, fact-specific inquiry about each individual’s circumstance”
(id. at 175). In an employment discrimination case based on
allegations of disability discrimination, “summary judgment is not
available where there is a genuine dispute as to whether the employer
has engaged in a good faith interactive process” (id. at 176; see
Taylor v Phoenixville School Dist., 184 F3d 296, 318; cf. Romanello v
Intesa Sanpaolo S.p.A., 97 AD3d 449, 451). Here, the court properly
determined that defendant failed to eliminate all triable issues of
fact with respect to, inter alia, whether defendant engaged in an
interactive process to ascertain plaintiff’s needs and whether a
reasonable accommodation was possible. Finally, we conclude that
defendant’s remaining contentions are without merit, or they are
raised for the first time on appeal and thus are not properly before
us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
