09-1320-cv 

Young v. Benjamin Dev. Inc. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDERff). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Daniel Patrick Moynihan 

United States Courthouse, 500 Pearl Street, in the City of 

New York, on the sth day of October, two thousand ten. 

PRESENT : 

DENNIS JACOBS, 

Chief Judse, 

WILFRED FEINBERG, 

JOSE A. CABRANES, 

Circuit Judses . 

NELSON YOUNG, 

Plaintiff-Appellant, 

BENJAMIN DEVELOPMENT INC., 

ALLTERTON ASSOCIATES HOUSING COMPLEX, 

Defendants-Appellees. 

FOR APPELLANT: Nelson Young, pro se, Bronx, NY. 

FOR APPELLEES: Stuart Weinberger, Goldberg & 

Weinberger, LLP, New York, NY. 
Appeal from a judgment of the United States District 

Court for the Southern District of New York (Sullivan, J.). 

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court be 

AFFIRMED. 

Nelson Young appeals, pro se, the judgment of the 

district court granting summary judgment in favor of 

Allerton Associates Housing Complex and Benjamin Development 

1nc.l Young argues that the district court erred in 

dismissing his employment discrimination claim under the 

Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. 

SS 12112-12117. We assume the parties' familiarity with the 

underlying facts, the procedural history of the case, and 

the issues on appeal. 

We review de novo a district court's order granting 

summary judgment. Graves v. Finch Pruyn & Co., 457 F.3d 

181, 183 (2d Cir. 2006). In so doing, we construe the 

evidence in the light most favorable to Young and ask 

"whether there is a genuine issue as to any material fact" 

and whether Allerton and Benjamin Development are "entitled 

to judgment as a matter of law." Id. 

Having conducted a thorough and independent review of 

the record on appeal, we conclude that the grant od summary 

judgment in favor of Allerton and Benjamin Development was 

proper.2 As the district court ruled, Young failed to make 

Young alleged before the district court that he was 

jointly employed by Allerton and Benjamin Development. 

Benjamin Development denied this allegation and maintained 

that it was not a proper party to this action. In light of 

the lower court's disposition, it declined to resolve this 

dispute. Like the district court, we find this issue to be 

immaterial to our decision and decline to address it. 

To the extent that Young raises claims before this 

Court that were not advanced below, we decline to consider 

these claims. See Singleton v. Wulff, 428 U.S. 106, 120 

(1976) (stating that "[ilt is the general rule . . . that a 

federal appellate court does not consider an issue not 

passed upon below."). Furthermore, "our jurisdiction is 
out a prima facie case of discrimination under the ADA. See 

Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 

2003). However, even assuming, arsuendo, that Young 

established a prima facie case of discrimination, his claim 

must fail. Defendants offered "legitimate nondiscriminatory 

reason[s]" for his termination and Young can point to no 

evidence "that reasonably supports a finding of prohibited 

discrimination." Spiesel v. Schulmann, 604 F.3d 72, 80 (2d 

Cir. 2010) . 

Young maintains that the district court erred by 

granting summary judgment without allowing him an 

opportunity for discovery. "Only in the rarest of cases may 

summary judgment be granted against a plaintiff who has not 

been afforded the opportunity to conduct discovery." 

Hellstrom v. U.S. De~'t of Veterans Affairs, 201 F.3d 94, 97 

(2d Cir. 2000). Nonetheless, we conclude that the district 

court committed no error in this case because Young failed 

to file an affidavit setting forth the essential facts he 

sought to discover. Fed. R. Civ. P. 56(f). " [Tlhe failure 

to file an affidavit under Rule 56(f) is itself grounds to 

reject a claim that the opportunity for discovery was 

inadequate." Paddinaton Partners v. Bouchard, 34 F.3d 1132, 

1137 (2d Cir. 1994). 

Even if Young had been granted the discovery he sought, 

it would not have changed the outcome of this matter. When 

the district court asked what evidence Young hoped to 

present if discovery were permitted, Young indicated that he 

would submit evidence regarding the deterioration in his 

health subsequent to his termination. Such evidence could 

not have aided Young in establishing a prima facie case or 

in rebutting defendants' proffered legitimate, 

nondiscriminatory reasons for his termination. Accordingly, 

it cannot be said that Young was "railroaded into his offer 

of proof in opposition to summary judgment." Trebor 

S~ortswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 

511 (2d Cir. 1989) (internal quotation marks omitted). 

limited by the wording of . . . [Young's] notice [of 

appeal]." New Phone Co. v. Citv of New York, 498 F.3d 127, 

130 (2d Cir. 2007). We lack jurisdiction over those claims 

raised by Young that were not included in his notice of 

appeal. 
1 For the foregoing reasons, the judgment of the district 

2 court is hereby AFFIRMED. 

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5 FOR THE COURT: 

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7 CATHERINE 0' HAGAN WOLFE, CLERK 

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