Anderson v. Young & Rubicam, 68 A.D.3d 430 (N.Y. App. Div. 2009). · Go Syfert
Anderson v. Young & Rubicam, 68 A.D.3d 430 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
6 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Alleva v. New York City Department of Investigation (nyed, 2010-03-12) · Strongest negative: Powell v. Delta Airlines (nyed, 2015-11-06)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited "but see" Powell v. Delta Airlines
E.D.N.Y · 2015 · signal: but see · confidence high
But see Anderson v. Young & Rubicam, 68 A.D.3d 430 , 890 N.Y.S.2d 45 , 46 (2009) (noting that "case ‘law endorses the ‘but for’ language,” citing Gross v. FBL Fin.
discussed Cited "but see" Ehrbar v. Forest Hills Hospital
E.D.N.Y · 2015 · signal: but see · confidence high
But see Anderson v. Young & Rubicam, 68 A.D.3d 430 , 890 N.Y.S.2d 45 , 46 (2009) (noting that “case law endorses the 'but for’ language,” citing Gross v. FBL Fin.
discussed Cited "but see" DeKenipp v. State
N.Y. App. Div. · 2012 · signal: but see · confidence high
Ctr., 706 F Supp 2d 494, 505-507 [SD NY 2010]; but see Anderson v Young & Rubicam, 68 AD3d 430, 431 [2009], lv dismissed 14 NY3d 909 [2010]), and we decline to reach that issue here, as we agree with the Court of Claims that claimant failed to establish his claim even under the traditional analysis.
discussed Cited "but see" DeKenipp v. State
N.Y. App. Div. · 2012 · signal: but see · confidence high
Ctr., 706 F Supp 2d 494, 505-507 [SD NY 2010]; but see Anderson v Young & Rubicam, 68 AD3d 430, 431 [2009], lv dismissed 14 NY3d 909 [2010]), and we decline to reach that issue here, as we agree with the Court of Claims that claimant failed to establish his claim even under the traditional analysis.
discussed Cited "see" Alleva v. New York City Department of Investigation
E.D.N.Y · 2010 · signal: see · confidence high
See Anderson v. Young & Rubicam, 68 A.D.3d 430 , 890 N.Y.S.2d 45 , 46 (1st Dep’t 2009) (affirming trial court’s refusal to give “mixed motive” jury charge on age discrimination claims, citing Gross).
Retrieving the full opinion text from the archive…
Kelvin D. Anderson
v.
Young & Rubicam
Appellate Division of the Supreme Court of the State of New York.
Dec 3, 2009.
68 A.D.3d 430
Cited by 6 opinions  |  Published

The verdict that plaintiff failed to prove a prima facie case of[*431] age discrimination and that the reasons defendant gave for his termination were not pretextual was based on a fair interpretation of the evidence (see Jordan v Bates Adv. Holdings, Inc., 46 AD3d 440 [2007], lv denied 11 NY3d 701 [2008]). The jury’s determination, based largely on credibility, is amply supported by the evidence, including plaintiff’s retraction of his allegation about his supervisors’ remarks, his “correction” of a deposition errata sheet to insert the word “older” in his recitation of one of those remarks, his admission that he had been given a negative job performance evaluation, unanimous testimony from defendant’s personnel as to both defendant’s need to cut costs and plaintiffs professional shortcomings, undisputed testimony that plaintiff was hired, promoted and given a raise after the age of 50, evidence that a substantially older employee was not terminated, and undisputed evidence that two younger persons hired after plaintiffs termination as regular employees were paid at a combined lower salary than that of plaintiff.

As to the jury charge, contrary to plaintiffs contention, there is no meaningful distinction between a “determining” factor, as given in the pattern instruction, and a “determinative” factor, as the trial court charged. “Except for” and “but for,” both used by the court in defining “determinative,” are synonymous; plaintiff himself requested the use of “except for” language, and case law endorses the “but for” language (see Gross v FBL Financial Services, Inc., 557 US —, —, 129 S Ct 2343, 2350-2351 [2009]; Ioele v Alden Press, 145 AD2d 29, 36-37 [1989]). Giving the McDonnell Douglas Corp. v Green (411 US 792 [1973]) burden-shifting instruction is not alone a ground for reversal (see Vincini v American Bldg. Maintenance Co., 41 Fed Appx 512, 515 [2002]). The requested mixed motive charge was unwarranted (see Gross v FBL Financial Services, Inc., supra).

We have considered plaintiff’s other contentions and find them unavailing. Concur — Gonzalez, RJ., Tom, Andrias, Nardelli and Richter, JJ.