Foley v. Mobil Chemical Co.

626 N.Y.S.2d 908 | N.Y. App. Div. | 1995

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant Steve Barnett contends that he was entitled to summary judgment on the ground that he is not an "employer” within the meaning of the Human Rights Law (Executive Law § 296). Barnett, as a corporate employee, is not subject to a discrimination suit under the Human Rights Law unless it is shown that he has an ownership interest in the corporation or the power to do more than carry out personnel decisions made by others (see, Patrowich v Chemical Bank, 63 NY2d 541, 542). Because it appears that discovery by plaintiff could elicit facts to support opposition to Barnett’s motion, the court properly denied it (see, CPLR 3212 [f]). We modify the order on appeal, however, by denying Barnett’s motion without prejudice to renew following completion of the examination before trial of Barnett. (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J.—Human Rights Law.) Present—Fallon, J. P., Wesley, Doerr, Balio and Boehm, JJ.