KEVIN KAISER, plf-ap, v. RAOUL'S RESTAURANT CORPORATION def-res

11236. KEVIN KAISER, plf-ap, v. RAOUL’S RESTAURANT CORPORATION def-res — Delince Law PLLC, New York (J. Patrick Delince of counsel), for ap — Rotondi & Associates, P.C., New York (Louis J. Rotondi of counsel), for Raoul’s Restaurant Corporation, Guy Raoul and Serge Raoul, res — Lax & Neville LLP, New York (Barry R. Lax of counsel), for Cindy Smith, res — Order, Supreme Court, New York County (Louis B. York, J.), entered May 29, 2012, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law on plaintiff’s age-based discrimination claim under the New York City Human Rights Law (Administrative Code of the City of New York §8-107). There is no dispute that plaintiff bookkeeper was a member of a protected class, was qualified for the job, and that he was terminated. However, defendants articulated legitimate, non-pretextual reasons for firing him. Following an investigation, which included two audits, defendants formed a goodfaith belief that plaintiff kept inaccurate payroll records and embezzled funds. Plaintiff’s attempt to conflate the purported falsity of the embezzlement accusation with the legitimacy of defendants’ belief in the accusation, is not availing (see Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29 [1st Dept 2011], lv denied 18 NY3d 811 [2012]; Melman v. Montefiore Med. Ctr., 98 AD3d 107, 121 [1st Dept 2012]; Kelderhouse v. St. Cabrini Home, 259 AD2d 938, 939 [3d Dept 1999]). Accordingly, defendants shifted the burden back to plaintiff to show that the reasons proffered were a pretext for discrimination.