Lieb at Law, P.C., Smithtown, NY (Mordy Vanovich of counsel), for appellant.

Devitt Spellman Barrett, LLP, Smithtown, NY (Christi M. Kunzig and Scott J. Kreppein of counsel), for respondents.

In an action to recover damages for employment discrimination on the basis of disability and gender in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated November 30, 2021. The order, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211 (a) to dismiss the first and second causes of action.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff had been employed as a public safety dispatcher for the defendant Village of East Hampton for approximately 10 years when, in February 2013, he injured his hip in an unrelated accident, requiring surgery. According to the plaintiff, as part of his preoperative testing, he was screened for sleep-related conditions at a sleep center. In April 2013, the plaintiff underwent hip replacement surgery. According to the plaintiff, he was cleared to return to work by his surgeon beginning on July 3, 2013. The plaintiff alleged, among other things, that the defendants refused to accept his medical clearance letter because they perceived him as having a long-term disability, as well as a severe sleep disorder, and did not permit him to return to work until March 2014. In the interim, according to the plaintiff, the defendants had unsuccessfully attempted to obtain his resignation.

In December 2016, the plaintiff commenced an action against the defendants, among others, to recover damages for employment discrimination on the basis of a disability in violation of the New York State Human Rights Law (see Executive Law § 296 [hereinafter NYSHRL]). In that prior action, the plaintiff alleged that the defendants had failed to provide a reasonable accommodation for his disability and had retaliated against him. The Supreme Court granted that branch of the motion of the defendants in the prior action which was to dismiss the complaint for failure to state a cause of action.

The plaintiff thereafter commenced the instant action to recover damages for [*2]employment discrimination under the NYSHRL, alleging, inter alia, that he was subjected to discrimination in the terms and conditions of his employment on the basis of disability (first cause of action) and gender (second cause of action). The defendants again moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the first and second causes of action, arguing, among other things, that the complaint was barred by the doctrine of res judicata, and that it failed to state a cause of action. By order dated November 30, 2021, the Supreme Court granted the defendants' motion. The plaintiff appeals.

In reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, the court, giving the complaint a liberal construction, accepting the allegations as true, and according the plaintiff the benefit of every favorable inference, "merely examines the adequacy of the pleadings" (Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018] [internal quotation marks omitted]). "Whether a plaintiff can ultimately establish [the] allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d at 38).

Executive Law § 296 (1) (a) prohibits discrimination in employment based upon a disability. The statutory definition of "disability" includes, inter alia, " 'a condition regarded by others as [a physical, mental or medical] impairment . . . which do[es] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held' " (Ashker v International Bus. Machs. Corp., 168 AD2d 724, 726 [1990] [emphasis added], quoting Executive Law § 292 [21] [c]).

A plaintiff states a cause of action to recover damages for employment discrimination in violation of section 296 (1) (a) by alleging "that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Silvers v Jamaica Hosp., 218 AD3d 817, 819 [2023] [internal quotation marks omitted]). Here, the plaintiff alleged that he "was a member of a protected class, i.e., a person with a disability, [his] medical evidence indicated that [he] was capable of assuming full duty, but [he] suffered an adverse employment action, i.e., the denial of reinstatement, under circumstances giving rise to the inference of discrimination based upon [his] disability" (Matter of Town of Hempstead v New York State Div. of Human Rights, 215 AD3d 973, 978 [2023]). Accordingly, the complaint sufficiently alleged a disability discrimination cause of action under the NYSHRL (see id. at 978; Vig v New York Hairspray Co., L.P., 67 AD3d 140, 146 [2009]; see also Ashker v International Bus. Machs. Corp., 168 AD2d at 726-727; Matter of Trans World Airlines v New York Exec. Dept., State Div. of Human Rights, 147 AD2d 575, 575-576 [1989]).

Furthermore, contrary to defendants' contention, this cause of action was not barred by the doctrine of res judicata. That doctrine "precludes a party from relitigating a claim that has been finally adjudicated on the merits" (Blake v City of New York, 144 AD3d 1071, 1073 [2016]; see Matter of Josey v Goord, 9 NY3d 386, 389 [2007]). "Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint" (Park Slope Auto Ctr., Inc. v Papa, 190 AD3d 754, 756 [2021] [citations, alterations, and internal quotation marks omitted]; see Ward v Klein, 203 AD3d 1217, 1218 [2022]). The first cause of action alleged in the present complaint was distinct from that alleged in the prior action, the latter of which was based upon an alleged failure of the defendants, among others, to provide a reasonable accommodation in the form of certain medical leave, as well as retaliation for engaging in a protected activity. Thus, the dismissal of those causes of action under CPLR 3211 (a) (7) did not bar the first cause of action asserted in the present complaint.

Contrary to the plaintiff's contention, however, he failed to state a cause of action to recover damages for employment discrimination on the basis of gender. The plaintiff failed to allege facts that could give rise to an inference that an adverse employment action occurred as a result of [*3]discrimination based on his gender (see Reilly v First Niagara Bank, N.A., 173 AD3d 1082 [2019]; Cahill v State of N.Y. Stony Brook Univ. Hosp., 139 AD3d 779, 781 [2016]).

The defendants' remaining contention is without merit.

Accordingly, we modify the order appealed from so as to deny that branch of the defendants' motion pursuant to CPLR 3211 (a) which was to dismiss the first cause of action, alleging discrimination on the basis of a disability. Connolly, J.P., Iannacci, Wooten and Ford, JJ., concur.