Opinion
2017–01820 Index No. 33878/14
06-19-2019
Eileen REILLY, Appellant, v. FIRST NIAGARA BANK, N.A., Respondent.
Condon & Associates, PLLC, Nanuet, N.Y. (Brian K. Condon and Laura M. Catina of counsel), for appellant. Bond, Schoeneck & King PLLC, Buffalo, N.Y. (Sharon M. Porcellio, Erin S. Torcello, Buffalo, Ernest R. Stolzer, and Tyler Hendry, New York of counsel), for respondent.
Condon & Associates, PLLC, Nanuet, N.Y. (Brian K. Condon and Laura M. Catina of counsel), for appellant.
Bond, Schoeneck & King PLLC, Buffalo, N.Y. (Sharon M. Porcellio, Erin S. Torcello, Buffalo, Ernest R. Stolzer, and Tyler Hendry, New York of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant, her employer, to recover damages for employment discrimination and hostile work environment on the basis of sex in violation of Executive Law § 296, based, in large part, upon the conduct of and comments made by her supervisor. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint. By order dated February 2, 2017, the Supreme Court granted the motion. The plaintiff appeals.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). Here, the plaintiff failed to allege a cognizable cause of action to recover damages for employment discrimination based on sex in violation of Executive Law § 296 (see Torres v. Louzoun Enterprises, Inc., 105 A.D.3d 945, 963 N.Y.S.2d 682 ). The plaintiff failed to allege that an adverse employment action occurred under circumstances giving rise to an inference of discrimination based on her sex (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Llanos v. City of New York, 129 A.D.3d 620, 10 N.Y.S.3d 870 ; Scarfone v. Village of Ossining, 23 A.D.3d 540, 541, 806 N.Y.S.2d 604 ). Moreover, the facts asserted in support of the plaintiff's allegations of a hostile work environment "fell short of [alleging] that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult ... that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment" ( Kamen v. Berkeley Coop. Towers Section II Corp., 98 A.D.3d 1086, 1087, 952 N.Y.S.2d 48 [internal quotation marks omitted]; see
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 ). Further, the plaintiff failed to sufficiently allege that the defendant became a party to such alleged conduct "by encouraging, condoning, or approving it" ( Beharry v. Guzman, 33 A.D.3d 742, 743, 823 N.Y.S.2d 195 ; see Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411, 487 N.E.2d 268 ; Matter of Totem Taxi v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 305, 491 N.Y.S.2d 293, 480 N.E.2d 1075 ). Accordingly, we agree with the Supreme Court's determination granting the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.