    09-1320-cv
    Young v . Benjamin Dev. I n c .

                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDERff). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the sthday of October, two thousand ten.

    PRESENT :
                 DENNIS JACOBS,
                               Chief Judse,
                 WILFRED FEINBERG,
                 JOSE A. CABRANES,
                               Circuit Judses .


    NELSON YOUNG,

                  Plaintiff-Appellant,



    BENJAMIN DEVELOPMENT INC.,
    ALLTERTON ASSOCIATES HOUSING COMPLEX,

                 Defendants-Appellees.



    FOR APPELLANT:                    Nelson Young, pro se, Bronx, NY.

    FOR APPELLEES:                    Stuart Weinberger, Goldberg &
                                      Weinberger, LLP, New York, NY.
    Appeal from a judgment of the United States District
Court for the Southern District of New York (Sullivan, J)
                                                        ..

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be
AFFIRMED.

     Nelson Young appeals, pro se, the judgment of the
district court granting summary judgment in favor of
Allerton Associates Housing Complex and Benjamin Development
1nc.l Young argues that the district court erred in
dismissing his employment discrimination claim under the
Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C.
SS 12112-12117. We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and
the issues on appeal.

     We review de novo a district court's order granting
summary judgment. Graves v. Finch Pruyn & Co., 457 F.3d
181, 183 (2d Cir. 2006). In so doing, we construe the
evidence in the light most favorable to Young and ask
"whether there is a genuine issue as to any material fact"
and whether Allerton and Benjamin Development are "entitled
to judgment as a matter of law." I .d
     Having conducted a thorough and independent review of
the record on appeal, we conclude that the grant od summary
judgment in favor of Allerton and Benjamin Development was
proper.2 As the district court ruled, Young failed to make

      Young alleged before the district court that he was
jointly employed by Allerton and Benjamin Development.
Benjamin Development denied this allegation and maintained
that it was not a proper party to this action. In light of
the lower court's disposition, it declined to resolve this
dispute. Like the district court, we find this issue to be
immaterial to our decision and decline to address it.
      To the extent that Young raises claims before this
Court that were not advanced below, we decline to consider
these claims. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) (stating that "[ilt is the general rule . . . that a
federal appellate court does not consider an issue not
passed upon below."). Furthermore, "our jurisdiction is
out a prima facie case of discrimination under the ADA. See
Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir.
2003). However, even assuming, arsuendo, that Young
established a prima facie case of discrimination, his claim
must fail. Defendants offered "legitimate nondiscriminatory
reason[s]" for his termination and Young can point to no
evidence "that reasonably supports a finding of prohibited
discrimination." Spiesel v. Schulmann, 604 F.3d 72, 80 (2d
Cir. 2010) .

     Young maintains that the district court erred by
granting summary judgment without allowing him an
opportunity for discovery. "Only in the rarest of cases may
summary judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery."
Hellstrom v. U.S. D e ~ ' t of Veterans Affairs, 201 F.3d 94, 97
(2d Cir. 2000). Nonetheless, we conclude that the district
court committed no error in this case because Young failed
to file an affidavit setting forth the essential facts he
sought to discover. Fed. R. Civ. P. 56(f). " [Tlhe failure
to file an affidavit under Rule 56(f) is itself grounds to
reject a claim that the opportunity for discovery was
inadequate." Paddinaton Partners v. Bouchard, 34 F.3d 1132,
1137 (2d Cir. 1994).

     Even if Young had been granted the discovery he sought,
it would not have changed the outcome of this matter. When
the district court asked what evidence Young hoped to
present if discovery were permitted, Young indicated that he
would submit evidence regarding the deterioration in his
health subsequent to his termination. Such evidence could
not have aided Young in establishing a prima facie case or
in rebutting defendants' proffered legitimate,
nondiscriminatory reasons for his termination. Accordingly,
it cannot be said that Young was "railroaded into his offer
of proof in opposition to summary judgment." Trebor
S~ortswearCo. v. The Limited Stores, Inc., 865 F.2d 506,
511 (2d Cir. 1989) (internal quotation marks omitted).


limited by the wording of . . . [Young's] notice [of
appeal]." New Phone Co. v. Citv of New York, 498 F.3d 127,
130 (2d Cir. 2007). We lack jurisdiction over those claims
raised by Young that were not included in his notice of
appeal.
1         For the foregoing reasons, the judgment of the district
2    court is hereby AFFIRMED.
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5                               FOR THE COURT:
 6
 7                              CATHERINE 0 HAGAN WOLFE, CLERK
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