Opinion
Filed May 2, 2001.
Appeal from Order of Supreme Court, Ontario County, Barry, J. — Summary Judgment.
PRESENT: GREEN, J.P., HAYES, SCUDDER, BURNS AND LAWTON, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Plaintiff commenced this action to recover damages arising from alleged gender-based discrimination by defendant, her former employer. Supreme Court properly denied defendant's motion insofar as it sought summary judgment dismissing plaintiff's claims alleging hostile work environment and quid pro quo sexual harassment. Defendant failed to meet his burden of establishing his entitlement to judgment as a matter of law with respect to those claims ( see, CPLR 3212 [b]). In addition, even assuming, arguendo, that defendant met that burden, we conclude that proof that he repeatedly made unwelcome physical and verbal sexual advances to plaintiff and fired her after she rejected those advances is sufficient to raise triable issues of fact with respect to plaintiff's sexual harassment claims ( see generally, Walsh v. Covenant House, 244 A.D.2d 214, 215; Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 49-51, lv denied 89 N.Y.2d 809). The proof submitted by plaintiff is also sufficient to raise an issue of fact whether defendant subjected her to unlawful discrimination based upon her pregnancy ( cf., Smith v. Paris Intl. Corp., 267 A.D.2d 223).
We agree with defendant, however, that punitive damages are not recoverable in this action, brought pursuant to Executive Law § 297 (9), alleging employment discrimination ( see, Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 494, rearg denied 81 N.Y.2d 835; McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 A.D.2d 269, 271 , appeal dismissed 93 N.Y.2d 919). We therefore modify the order by granting defendant's motion insofar as it seeks dismissal of plaintiff's claim for punitive damages.