Plaintiff Loretta Sands moves by notice of motion for an order granting her summary judgment on her cause of action for employment discrimination. Defendant Staten Island Aid for Retarded Children d/b/a Community Resources opposes such application, and moves for summary judgment dismissing the complaint. In the alternative, defendant asks to transfer the case to civil court pursuant to CPLR 325( c). Plaintiff opposes defendant's motion for summary judgment.

As is relevant, plaintiff, a Jewish female, began working for defendant as a medical service coordinator on or about September 19, 2005. Shortly after commencing her employment, and while still on probation, it appears that plaintiff requested two days off for Rosh Hashanah, i.e., October 4th and 5th, 2005. After consulting with defendant's director of human resources, Leroy Valentine, and chief operating officer, Barbara Mercado, plaintiff's supervisor, Joanne Sileccho, allowed the new employee, who purportedly was not entitled to take any time, permission to take one day off. Thereafter, plaintiff neither came to work on or called on either of the two days originally requested. When she returned to work on October 6, 2005, her employment was allegedly terminated for violating defendant's attendance policy. Plaintiff alleges that such action by defendant was discriminatory and violated her rights under both the New York State and City Human Rights Law. She commenced this action by the filing and service of a summons and complaint on or about November 2005. Issue was joined by defendant's service of an answer on or about March 28, 2006.

In support of her motion, plaintiff has submitted (1) selected pages from her deposition testimony, (2) a description of Rosh Hashanah Laws and Customs, apparently taken from an internet site entitled "AskMoses.com", (3) a written memorandum produced and signed by her former supervisor, Joanne Sileccho, and (4) a memorandum of law addressing defendant's [*2]purported violation of both the State and City Human Rights Laws^[FN1]. Notably absent is a complete set of pleadings as required by CPLR 3212(b).

In its motion for dismissal of the complaint, defendant has submitted (1) a memorandum of law, (2) a complete set of the pleadings, (3) a complete copy of plaintiff's deposition testimony, (4) a copy of its employee manual with policy amendments and clarifications, (5) a copy of plaintiff's request to take off October 4th and 5th, 2005 as personal days and (6) a list of all the employees who took off two consecutive days for Rosh Hashanah in the years 2004, 2005 and 2006.

Initially, the Court is required to address plaintiff's failure to include in her moving papers a complete set of the pleadings. Normally, this omission can be fatal to a movant's application (see Wilder v. Heller, 24 AD3d 433). However, since such denials are without prejudice, and leave to renew in such circumstances typically is granted (see Welton v. Drobnicki, 298 AD2d 757), it has been held that this procedural defect may be overlooked if the record is nevertheless sufficiently complete (see Stiber v. Cotrone, 153 AD2d 1006, 1007, lv denied 75 NY2d 703). Since defendant has attached a copy of both the plaintiff's complaint and its answer, this Court, for purposes of judicial economy, finds the record to be sufficiently complete to overlook plaintiff's procedural omission and decide the motions on their merits.

Under both the New York State (Executive Law §296) and New York City (New York City Administrative Code §8-107) Human Rights Laws, it is unlawful for an employer to discriminate against an employee because of creed. Under either law, the standard of proof is the same (see Stephenson v. Hotel Employs & Rest. Employs Union Local 100, 6 NY3d 265; Ferrante v. American Lung Assn., 90 NY2d 623), as the prevailing, three-prong, burden-shifting analysis was developed in response to lawsuits filed under Title VII of the Civil Rights Act of 1964 (see McDonnell Douglas Corp. v. Green, 411 US 792). Under this analysis, it is plaintiff who bears the initial burden of proving a prima facie case of discrimination. Once this requirement has been met, the burden shifts to the employer to produce competent legal evidence of a legitimate, non-discriminatory reason for the allegedly violative employment action (see St. Mary's Honor Ctr v. Hicks, 509 US 502, 506; Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 325), and at this stage, if the employer is successful, it devolves upon plaintiff to prove by a preponderance of the evidence that the apparently legitimate reasons offered by the employer are merely a pretext to effectuate the prohibited discriminatory practice (see White v. Fuji Photo Film USA, 434 F Supp 2d 144, 153; Bennet v. Watson Wyatt & Co., 136 F Supp 2d 236, affd 51 Fed Appx 55).

With these criteria in mind, the Court finds that plaintiff has made out a prima facie case of discrimination (see Texas Dept. of Community Affairs v. Burdine, 450 US 248, 252-254), at least sufficient to survive summary dismissal. Plaintiff has asserted that she was terminated immediately after taking two days off to observe Rosh Hashanah, which gives rise to a reasonable inference that her absence for those two days was the reason or cause for the termination. Defendant has produced competent evidence of a legitimate, non-discriminatory [*3]reason for terminating plaintiff's employment, i.e., her failure to comply with its employment rules and/or give proper notification of her absence during her probationary period (see Morse v. Cowtan & Tout, Inc., 41 AD3d 563), and has thus met its' burden in opposition. However, defendant does not satisfactorily address another issue upon which it has the burden, i.e., that any reasonable accommodation to plaintiff would have caused an undue hardship on its' business.(see, Administrative Code of the City of New York, Sec. 8-107(3)(a),(b); 8-102(18); see also, Philbrook v. Ansonia Board of Education, 757 F. 2d 476, 484).

As to the question of any pretext on the part of the employer, it is the court's view that evidence of its' reliance on attendance policies, and the fact that it hired another Jewish woman (who also took off Jewish holidays while abiding by company attendance policy) to replace plaintiff, among other things, satisfies plaintiff's burden in rebuttal. That is, it still appears, at least from the record sub judice, that discrimination may have been the real reason for the termination (see Ferrante v American Lung Association, 90 NY2d 623, 631)

For these reasons, both the motion by plaintiff (Cal. No. 1598) and the defendant (Cal. No.1608) for summary judgment in their respective favors are denied.

ENTER,

___S/______________________

Robert J. Gigante,J.S.C.

DATED: October 5 , 2007

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