Cesar v. Highland Care Center, Inc.

• Decision Date: 06 February 2007
• Docket Number: 2005-10330.
• Citation: Cesar v. Highland Care Center, Inc., 37 A.D.3d 393, 829 N.Y.S.2d 236, 2007 NY Slip Op 1063 (N.Y. App. Div. 2007)
• Parties: CAROL CESAR, Appellant, v. HIGHLAND CARE CENTER, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 393

829 N.Y.S.2d 236

2007 NY Slip Op 01063

CAROL CESAR, Appellant, v. HIGHLAND CARE CENTER, INC., Respondent.

2005-10330.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 6, 2007.

In an action, inter alia, to recover damages for discrimination based on race, age, and national origin in violation of Executive Law § 296 and Administrative Code of City of N.Y. § 8-107, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), dated July 7, 2005, as, upon reargument, adhered to its original determination in an order dated March 21, 2005, granting the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

As general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). The plaintiff appealed from the order dated March 21, 2005 granting the defendant's motion for summary judgment, but abandoned the appeal when the Supreme Court rendered the July 7, 2005 order made upon reargument, resulting in a dismissal of that appeal for failure to prosecute. The better practice would have been for the plaintiff to withdraw her prior appeal, rather than abandon it. Nonetheless, we exercise our discretion to review the issues raised on the plaintiff's appeal from the order made upon reargument (see Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999]; Rubeo v National Grange Mut. Ins. Co., supra; Aridas v Caserta, 41 NY2d 1059, 1061 [1977]).

The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. "To establish its entitlement to summary judgment in [a] ... discrimination case, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether the explanations proffered by the defendant were pretextual" (DelPapa v Queensborough Community Coll., 27 AD3d 614 [2006] [internal quotation marks omitted]; see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]; Hemingway v Pelham Country Club, 14 AD3d 536 [2005]; Pramdip v Building Serv. 32B-J Health Fund, 308 AD2d 523 [2003]). In opposition to the defendant's prima facie showing that the plaintiff's employment had been terminated for legitimate, nondiscriminatory reasons, the plaintiff failed to raise a triable issue of fact as to whether the reasons proffered by the defendant for terminating the plaintiff's employment were merely pretextual (see Forrest v Jewish Guild for the Blind, supra at 308; Ferrante v American Lung Assn.,...