The following papers numbered 1 to 6 read on this motion

Notice of Motion1 - 2

Memorandum of Law in Support3

Affirmation in Opposition4

Memorandum of Law in Opposition5

Reply Memorandum of Law6

Defendants, New York city Department of Education (hereinafter "DOE") and Andrew Topol (hereinafter "Principal Topol"), move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.

This is an action to recover damages for disability discrimination under the New York State Human Rights Law (SHRL) and the New York City Human Rights Law (CHRL) allegedly sustained by plaintiff during the course of her employment by the DOE at P.S. 182, in the County of Queens, City and State of New York.

Specifically, on April 20, 2010, plaintiff tripped and fell over a pile of books in her classroom which resulted in back pain. Plaintiff went to a private physician the same day and was advised to remain out of work for several days until she was reevaluated.

On April 23, 2010, plaintiff e-mailed Principal Topol and stated that her physician had advised her not to return to work until April 29, 2010. Plaintiff did not return to work on that date and on April 30, plaintiff went to an orthopedist who diagnosed her with right sided lumbar paraspinal tenderness and muscular spasms.

Plaintiff appeared for a medical examination with a doctor from the DOE Medical Division on May 20, 2010 and was found fit to return to work without restrictions. On May 22, 2010 plaintiff submitted a note from her original doctor stating that the plaintiff should remain out of work for an additional four to six weeks.

One June 1, 2010, plaintiff was informed by her orthopedist that she could indeed return to work but should limit her use of the staircase to twice a day. On the following day, plaintiff requested an accommodation wherein a co-worker would bring his or her class to plaintiff's classroom and plaintiff would finish the co-worker's lesson while the co-worker escorted plaintiff's class to wherever was necessary. Principal Topol denied that request within 24 hours and plaintiff was placed on paid leave for the remainder of the 2009-2010 school year.

Plaintiff claims that defendants denial of her accommodation request consisted a failure to provide her with a reasonable accommodation in compliance with the SHRL and the CHRL. In addition, plaintiff claims that she was retaliated against during the following school year, and continuing to the present, by inter alia facing stricter scrutiny during classroom evaluations.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

In a disability discrimination case, an employer normally cannot obtain summary judgment on a SHRL or CHRL claim unless the record demonstrates that there is no triable issue of fact regarding whether the employer duly considered the requested accommodation (See Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 837 [2014]).

While the failure to engage in a good faith interactive process with the employee regarding the reasonableness of his or her proposed accommodation request does not state a basis for liability on its own, an employer that fails to participate in this process cannot prevent the employee from bringing a SHRL or CHRL claim to trial on the reasonable accommodation issue (See Jacobsen, supra, at 838).

The evidence submitted in support of the motion demonstrates that plaintiff's proposed accommodation request was denied within approximately 24 hours and that no further discussion into the feasibility of plaintiff's proposal took place. Under these circumstances, defendants fail to demonstrate their entitlement to judgment on the issue of reasonable accommodation (See Jacobsen, supra, at 838).

To establish their prima facie entitlement to judgment on plaintiff's retaliation claims, defendants must demonstrate that plaintiff cannot make out a prima facie claim or retaliation and that there exists no triable issue of fact regarding whether defendants' explanations for the challenged actions were pretextual (See Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740-41 [2d Dept. 2013]).

Here there is no dispute that plaintiff engaged in a protected activity and that her employer was aware of plaintiff's participation (See Brightman, supra, at 740).

In addition, plaintiff's deposition testimony that she received increased scrutiny following her rejected accommodation requests is sufficient to present a question of fact regarding whether her employer engaged in conduct that was reasonably likely to deter a person from engaging in that protected activity (See id. at 739-40).

Moreover, although defendants have demonstrated a non-retaliatory basis for the alleged adverse actions, they have failed to demonstrate as a matter of law that there they were not motivated, at least in part, by an impermissible motive (See Brightman, supra, at 741).

Accordingly, the motion is denied, in its entirety.