Landwehr v. Grey Advertising Inc.

• Citation: 622 N.Y.S.2d 17,211 A.D.2d 583
• Parties: Sherman LANDWEHR, Plaintiff-Appellant-Respondent, v. GREY ADVERTISING INC., Defendant-Respondent-Appellant.
• Decision Date: 31 January 1995
• Court: New York Supreme Court Appellate Division

Page 17

622 N.Y.S.2d 17

211 A.D.2d 583

Sherman LANDWEHR, Plaintiff-Appellant-Respondent, v. GREY ADVERTISING INC., Defendant-Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 31, 1995.

D.L. Raskin, New York City, for plaintiff-appellant-respondent.

H.J. Rubin, New York City, for defendant-respondent-appellant.

Before MURPHY, P.J., and ROSENBERGER, ROSS, ASCH and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered July 18, 1994, which denied defendant's motion for summary judgment dismissing the first cause of action and granted summary judgment dismissing the second cause of action, modified, on the law, to the extent of denying summary judgment on the second cause of action, reinstating said cause of action and otherwise affirmed, without costs.

In this "reduction of workforce" case, plaintiff has sufficiently proven a prima facie case of age discrimination under the Human Rights Law and the Administrative Code of the City of New York pursuant to the requirements enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (see, Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745; Ioele v. Alden Press, 145 A.D.2d 29, 536 N.Y.S.2d 1000). Clearly, plaintiff was part of a protected age group and was discharged by defendant (see, Sogg v. American Airlines, 193 A.D.2d 153, 603 N.Y.S.2d 21, lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 109, 634 N.E.2d 605, lv. dismissed 83 N.Y.2d 846, 612 N.Y.S.2d 106, 634 N.E.2d 602). Moreover, the evidence indicates that plaintiff may have been qualified for other positions in the organization which were awarded to other employees who were younger than plaintiff (see, Morser v. AT & T Information Sys., 703 F.Supp. 1072, 1081, rearg. granted 715 F.Supp. 516). While defendant asserts that there were no positions which plaintiff was qualified for at the time he was discharged, a legitimate explanation for firing plaintiff, the evidence raises material questions concerning whether defendant's reasons for terminating plaintiff were pretextual. Hence, the burdens outlined in McDonnell Douglas necessary to establish an age discrimination case have been fulfilled here, warranting denial of summary judgment on the age discrimination claim.

As to plaintiff's second cause of action concerning defendant's alleged retaliatory conduct in response to plaintiff's...