Supreme Court, Appellate Division, Second Department, New York.
William HERSKOWITZ, appellant,v.GREYSTONE JEWISH CENTER, et al., respondents;Sylvia Herskowitz, additional defendant on counterclaim.
March 20, 2000.
Mussman & Northey, New York, N.Y. (Rebecca Northey of counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Samuel Kirschenbaum of counsel), for respondents.
*391 In an action, inter alia, to recover damages for age discrimination in violation of Executive Law § 296, the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered December 3, 1998, as granted those branches of the defendants' motion which were for summary judgment dismissing the fourth and fifth causes of action in the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
**262 Assuming that the plaintiff demonstrated a prima facie case of age discrimination, the defendants met their burden of establishing that the decision not to renew his contract was based on legitimate, nondiscriminatory reasons and not his age (see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308; Matter of Laverack & Haines v. New York State Div. of Human Rights, 88 N.Y.2d 734, 650 N.Y.S.2d 76, 673 N.E.2d 586; 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; Alfano v. Miller Envtl. Group, 253 A.D.2d 446, 675 N.Y.S.2d 311). The plaintiff failed to raise material issues of fact as to whether the reason proffered by the defendants was pretextual (see, Ferrante v. American Lung Assn., supra).
The Supreme Court also properly dismissed the plaintiff's cause of action based on retaliation as there was no reasonable basis for him to believe that the defendants engaged in any discriminatory practice prohibited by the Executive Law (see, Executive Law § 296[e]; Dodd v. Middletown Lodge, 264 A.D.2d 706, 695 N.Y.S.2d 115; Matter of Electchester Hous. Project v. Rosa, 225 A.D.2d 772, 773, 639 N.Y.S.2d 848).
Finally, the plaintiff failed to demonstrate how further discovery might reveal the existence of material facts which would warrant the denial of summary judgment (see, CPLR 3212[f]; Delaney v. Good Samaritan Hosp., 204 A.D.2d 678, 612 N.Y.S.2d 433). Accordingly, the Supreme Court properly granted summary judgment dismissing the fourth and fifth causes of action.
SANTUCCI, J.P., JOY, GOLDSTEIN, and SCHMIDT, JJ., concur.
705 N.Y.S.2d 261 (Mem), 270 A.D.2d 391, 2000 N.Y. Slip Op. 02611
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