Mahoney v. Olean General Hospital

—Judgment unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Plaintiff commenced this action pursuant to Labor Law article 6 to recover vacation and holiday pay accrued at the time of her termination by defendant. Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Defendant met its initial burden by presenting proof that plaintiff forfeited her vacation and holiday pay pursuant to defendant’s policies because she was discharged for falsification of patient records (see, Matter of Glenville Gage Co. v Industrial Bd. of Appeals, 70 AD2d 283 , 285-286, affd 52 NY2d 777 ; see also, Matter of Ross v Specialty Insulation Mfg. Co., 71 AD2d 766 ). Plaintiff, however, raised a triable issue of fact by presenting proof that she altered the patient records to correct rather than falsify them (see, Felsen v Sol Cafe Mfg. Corp., 24 NY2d 682 , 685-686, rearg denied 25 NY2d 896 ). We therefore reverse the judgment, deny defendant’s motion and reinstate the complaint. (Appeal from Judgment of Supreme Court, Cattaraugus County, Cosgrove, J. — Summary Judgment.) Present — Green, J. P., Wisner, Hurlbutt, Scudder and Kehoe, JJ.