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Alleged Disability Insufficient to Establish Discrimination

June 17, 2009

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In D’Avilar v. Cerebral Palsy Assn’s of N.Y. State, the plaintiff, a direct care aide to the severely disabled, was injured as the result of a crime. Plaintiff’s injury left her unable to lift more than 10 pounds with her right arm. When plaintiff informed defendant that she required a “reasonable accommodation” as a result of her injury, defendant responded that there could be no reasonable accommodation as lifting 10 pounds was an essential prerequisite of the job.
Plaintiff commenced an action under New York City Human Rights Law, claiming she had been discriminated against due to her disability. After discovery was completed, defendant moved for summary judgment based on plaintiff’s social security disability insurance application. In the application, plaintiff swore she was unable to perform the tasks of a direct care aide because among other things she was unable to lift 10 pounds and was unable to sit, stand or walk for extended periods. In plaintiff’s response to defendant’s motion to dismiss, she did not address the additional disabilities claimed in her application.
The Supreme Court held that plaintiff failed to raise a triable issue of fact regarding whether she could perform the essential functions of a direct care aide based on the additional disabilities listed in her social security disability insurance application, and her failure to propose any reasonable accommodations for the additional disabilities. The Appellate Division, Second Department affirmed the lower court’s finding.
Thanks to Alison Weintraub for her contribution to this post.
<a href="http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04851.htm">http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04851.htm</a>

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