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

1408
CA 15-00895
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


RICHARD REGAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF GENEVA, CITY OF GENEVA POLICE
DEPARTMENT, FRANK PANE, JEFF TRICKLER,
JOHN CATELINE, ERIC HEIECK, MATTHEW D.
HORN, COUNCIL 82 LAW ENFORCEMENT UNION,
ENNIO CORSI, GREG CAREY, JEFF POTTER,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


BOSMAN LAW FIRM, LLC, ROME (DANIEL W. FLYNN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (PHILLIP OSWALD OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF GENEVA, CITY OF GENEVA
POLICE DEPARTMENT, FRANK PANE, JEFF TRICKLER, JOHN CATELINE, ERIC
HEIECK AND MATTHEW D. HORN.

ENNIO CORSI, GENERAL COUNSEL, ALBANY (CHRISTINE CAPUTO GRANICH OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS COUNCIL 82 LAW ENFORCEMENT UNION,
ENNIO CORSI, GREG CAREY AND JEFF POTTER.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oneida County (Bernadette T. Clark, J.), entered October 3,
2014. The order and judgment granted the motions of defendants City
of Geneva, City of Geneva Police Department, Frank Pane, Jeff
Trickler, John Cateline, Eric Heieck, Matthew D. Horn, Council 82 Law
Enforcement Union, Ennio Corsi, Greg Cary and Jeff Potter to dismiss
the amended complaint and dismissed the amended complaint against
those defendants.

     Now, upon the stipulation of discontinuance signed by the
attorneys for plaintiff and for defendants Council 82 Law Enforcement
Union, Ennio Corsi, Greg Carey, and Jeff Potter on July 31, 2015 and
filed in the Oneida County Clerk’s Office on August 7, 2015,

     It is hereby ORDERED that said appeal from said order and
judgment insofar as it concerns defendants Council 82 Law Enforcement
Union, Ennio Corsi, Greg Cary, and Jeff Potter is unanimously
dismissed upon stipulation, and the order and judgment is modified on
the law by denying in part the motion of defendants City of Geneva,
City of Geneva Police Department, Frank Pane, Jeff Trickler, John
                                 -2-                          1408
                                                         CA 15-00895

Cateline, Eric Heieck, and Matthew D. Horn and reinstating the sixth
and eighth causes of action in the amended complaint against those
defendants, and as modified the order and judgment is affirmed without
costs.

     Memorandum: Immediately after his arrest for driving while
intoxicated, plaintiff was suspended from his position as a police
officer with defendant City of Geneva Police Department (Department).
Approximately one week into his suspension, plaintiff entered a
rehabilitation program, where he was diagnosed with posttraumatic
stress disorder and anxiety disorder, which were related to his work
as a police officer at the site of the World Trade Center in the days
following the September 11, 2001 attack. Shortly after plaintiff’s
release from the rehabilitation program, defendant Frank Pane, the
Department’s Chief of Police, notified plaintiff that his employment
was terminated.

     Plaintiff commenced this action alleging, inter alia, unlawful
employment discrimination based upon his psychological disability.
Supreme Court, inter alia, granted the pre-answer motion of defendants
City of Geneva (City), Department, Pane, Jeff Trickler, John Cateline,
Eric Heieck and Matthew D. Horn (collectively, City defendants) to
dismiss the amended complaint against them. We note at the outset
that, on appeal, plaintiff seeks reinstatement of only the fourth,
sixth, seventh, eighth, and ninth causes of action in the amended
complaint against those defendants, and he has thus abandoned any
issues concerning the propriety of the order and judgment insofar as
it granted those parts of the motion of the City defendants seeking
dismissal of the first, second, third, and fifth causes of action
against them (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).

     We agree with the court, for reasons stated in its decision, that
the fourth, seventh and ninth causes of action, which are premised
upon alleged violations of the Equal Protection Clauses of the United
States and New York Constitutions (US Const, 14th Amend, § 1; NY
Const, art 1, § 11;), fail to state a cause of action (see CPLR 3211
[a] [7]). We conclude, however, that the court erred in granting the
motion of the City defendants insofar as it sought dismissal of the
sixth cause of action, for disability discrimination under the Human
Rights Law (Executive Law § 290 et seq.), and the eighth cause of
action, for disability discrimination under the Rehabilitation Act of
1973 ([Rehabilitation Act] 29 USC § 701 et seq.). We therefore modify
the order and judgment by denying the City defendants’ motion in part
and reinstating the sixth and eighth causes of action against the City
defendants. Accepting plaintiff’s factual allegations as true, and
according him the benefit of every favorable inference, we conclude
that plaintiff has stated causes of action for disability
discrimination under both statues (see generally Leon v Martinez, 84
NY2d 83, 87-88).

     Plaintiff sufficiently stated a cause of action for disability
discrimination under the Human Rights Law by alleging that: he has a
disability and is therefore a member of a protected class; he is
qualified for his position; he suffered an adverse employment action,
                                 -3-                          1408
                                                         CA 15-00895

i.e., termination of his employment; and the termination occurred
under circumstances giving rise to an inference of discrimination (see
Gill v Maul, 61 AD3d 1159, 1160; see also Brathwaite v Frankel, 98
AD3d 444, 445). Similarly, plaintiff sufficiently stated a cause of
action for discriminatory termination under the Rehabilitation Act by
alleging that: “(1) he has a disability; (2) he is otherwise
qualified to perform the job; (3) he was terminated solely because of
his disability; and (4) the program or activity receives federal
funds” (Pickering v Virginia State Police, 59 F Supp 3d 742, 745 [ED
Va 2014]).

     The court erred in concluding that plaintiff failed to allege
sufficiently that his termination was based upon his disability rather
than the criminal charge, and in dismissing the causes of action under
the Human Rights Law and the Rehabilitation Act on that ground. In
support of those causes of action, plaintiff alleged that the City did
not terminate the employment of two nondisabled employees after they
were arrested for criminal misconduct, thus raising an inference that
his termination was based upon his disability. The court stated in
its decision that plaintiff’s allegations “equally support” the
conclusions that those two employees and plaintiff were similarly
situated, and that they were not similarly situated. On the motion to
dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally
support opposing inferences must be resolved in plaintiff’s favor (see
Leon, 84 NY2d at 87-88).




Entered:   February 11, 2016                   Frances E. Cafarell
                                               Clerk of the Court
