Mike v. Haylor, Freyer & Coon, Inc.

• Decision Date: 10 January 1991
• Parties: Bertha MIKE, Appellant, v. HAYLOR, FREYER & COON, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 630

564 N.Y.S.2d 630

169 A.D.2d 911

Bertha MIKE, Appellant, v. HAYLOR, FREYER & COON, INC., Respondent.

Supreme Court, Appellate Division,

Third Department.

Jan. 10, 1991.

Twining, Nemia, Hill & Steflik (Sandra J. Garufy, of counsel), Binghamton, for appellant.

Bond, Schoeneck & King (Thomas E. Myers, of counsel), Syracuse, for respondent.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from an order of the Supreme Court (Ellison, J.), entered March 19, 1990 in Tompkins County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff worked as a bookkeeper for Ithaca Agency, Inc. (hereinafter the Agency) for some 18 years. In 1986, defendant affiliated with the Agency and transferred much work to its Syracuse office. In June 1986, plaintiff's employment was terminated ostensibly because her work was no longer needed. Plaintiff commenced this action alleging, inter alia, age discrimination. Supreme Court granted defendant's motion for summary judgment and dismissed the complaint. This appeal followed.

In moving for summary judgment dismissing the allegations of age discrimination, defendant established by proof in admissible form that plaintiff's employment was terminated because of legitimate business reasons related to defendant's affiliation with the Agency and transfer of business operations to its Syracuse office. It then became plaintiff's responsibility to submit proof in admissible form to raise a question of fact (see, Heffernan v. Colonie Country Club, 160 A.D.2d 1062, 553 N.Y.S.2d 544). Plaintiff claims that references to early retirement and her approaching eligibility for Social Security benefits during her termination meeting raise a question of fact. We disagree, as these references standing alone do not reflect adversely on the rationale for her discharge and cannot be considered unusual in a termination meeting. In this regard, we recognize that plaintiff acknowledged during her deposition that the changes in defendant's business which resulted in her duties being transferred to another office were not motivated by her age.

Plaintiff also contends that a question of fact exists because within a month or so of her termination, defendant advertised for and hired a much younger receptionist without considering her for the position. The record reveals, however, that this vacancy did not arise until after plaintiff's termination and, in...