Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered December 3, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered December 3, 2008, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

Plaintiff, employed by defendant New York State Department of Health (DOH) from 1998 until his resignation on March 25, 2005, instituted this action alleging that DOH failed to reassign him to an available position, in violation of the New York Human Rights Law (Executive Law §§ 292[21-e]; 296[1][a],[3]).

Defendant established prima facie that it engaged
in an interactive process to address plaintiff's request
for reasonable accommodation (see see Pimentel v Citibank, N.A., 29 AD3d 141 [2006], lv denied 7 NY3d 707 [2006]), including, as plaintiff acknowledges, his placement on a transfer list from which he was hired by the New York
State Office of Temporary Disability Assistance (OTDA) in June 2005 when a vacant position became available. In opposition, plaintiff failed to meet his burden of showing that a vacant funded position existed prior to June 2005 (Pimentel v Citibank, N.A. 29 AD3d at 149). At his deposition, plaintiff admitted that, to his knowledge, the positions at OTDA did not become available until June 2005. Plaintiff's reliance on the deposition testimony of OTDA's director is misplaced, since the testimony was insufficient to raise a triable issue as to whether a vacant position existed prior to June 2005. While the director testified that some OTDA employees had [*2]retired, he explained that it was a "long process" to obtain "approval to hire" a replacement. The burden of persuasion as to the existence of a reasonable accommodation remains with the plaintiff and is not satisfied by mere speculation (see Jackan v New York State Dept. of Labor, 205 F3d 562, 566 [2d Cir 2000], cert
denied, 531 US 931 [2000]). Plaintiff had the opportunity to conduct discovery to identify an available "vacant funded position" and failed to show that such vacancy existed during the relevant period (see Donahue v Consolidated Rail Corp. 224 F3d 226, 234 [3rd Cir 2000]; Reisiger v West, 221 F3d 1339 [7th Cir 2000]). On this record, defendant's motion for summary judgment should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 05, 2009