Edward J. SULLIVAN, Plaintiff-Appellant, v. CITY OF NEW YORK, et al., Defendants-Appellees, 484 F. App'x 628

SUMMARY ORDER Edward J. Sullivan, pro se, appeals from the district court’s grant of

summary judgment to the City of New York, The New York City Police Department and the New York City Police Pension Fund, the State of New York and the New York State Civil Service Commission (together, “City”) in his action alleging discrimination on the basis of his disability. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review a district court’s grant of

summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In doing so, this Court must determine whether the district court properly concluded that there were no genuine issues of material fact and the moving party was entitled to judgment as a matter of law. Id. However, “conclusory statements or mere allegations [are] not sufficient to defeat a

summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002). We affirm the grant of

summary judgment without reaching the merits of the district court’s analysis of the Lily Ledbet-ter Fair Pay Act of 2009. Our case law makes clear that so long as a disabled individual who is eligible for either a service pension or a disability pension is given a choice between the two pensions, it is legal under the ADA for a disability pension to provide a different level of benefits than a service pension — even if that level of benefits is lesser Castellano v. City of New York, 142 F.3d 58, 71 (2d Cir.1998). To violate the ADA, then, the City must have deprived Sullivan of a choice of pension plan.

The ADA does not apply retroactively to acts occurring before its effective date of July 26, 1992. the effective date. Smith v. United Parcel Serv. of Am., Inc., 65 F.3d 266, 266 (2d Cir.1995). Even assuming Sullivan was impermissibly forced into the disability pension plan in 1986, his claim predates the ADA, and is thus barred. The district court properly dismissed Sullivan’s equal protection claim because Sullivan failed to meet his burden to negate “any reasonably conceivable state of facts that could provide a rational basis for the [challenged] classification.” Bd. of Trs. of the Univ. of Ala. v.

Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). We have considered the remainder of Sullivan’s arguments and find them to be without merit. Accordingly, it is hereby ORDERED that the judgment of the district court is AFFIRMED.