        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

570
CA 15-01427
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


JAMES MYKYTYN, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                                MEMORANDUM AND ORDER

HANNAFORD BROS. CO., DOING BUSINESS AS HANNAFORD
SUPERMARKETS, BOB SCHNEIDER, DAVID ROSATI, ET AL.,
DEFENDANTS-APPELLANTS-RESPONDENTS.


HARRIS BEACH PLLC, SYRACUSE (TED H. WILLIAMS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

BOSMAN LAW FIRM, L.L.C., CANASTOTA (A.J. BOSMAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Oneida County (Patrick F. MacRae, J.), entered May 14, 2015. The
order granted in part and denied in part the motion of defendants for
summary judgment dismissing the second amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified by denying that part of the motion with respect
to the eighth and twelfth causes of action, and reinstating those
causes of action and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for,
inter alia, employment discrimination pursuant to the New York State
Human Rights Law (Executive Law § 290 et seq.) and Title VII of the
Civil Rights Act of 1964 ([Title VII] 42 USC § 2000e et seq.) by his
employer, defendant Hannaford Bros. Co., doing business as Hannaford
Supermarkets (Hannaford), and defendants-coemployees David Rosati and
Bob Schneider. Plaintiff’s second amended complaint alleges that
while employed by Hannaford in the meat department he was subjected to
a course of sexual harassment directed at him by Schneider that
included calling plaintiff sexy; stating that plaintiff wore too much
clothing for Schneider’s liking; making sexually suggestive noises
directed at plaintiff; engaging in acts of physical intimidation;
belittling plaintiff when he needed to use the restroom and making
patronizing comments about plaintiff’s “wee wee”; following plaintiff
into the bathroom to intimidate him; intentionally working in close
quarters so that his buttocks would rub against plaintiff; making
sexually suggestive gestures and comments with respect to meat
products directed at plaintiff; and carving meat products into phallic
shapes and leaving them for plaintiff to finish processing. Plaintiff
further alleged that he complained to, inter alia, Rosati, the meat
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                                                         CA 15-01427

department manager, about Schneider’s conduct, but Rosati took no
action and failed to report plaintiff’s complaints to upper management
at Hannaford.

     Following the completion of discovery, defendants moved for
summary judgment seeking dismissal of the second amended complaint.
Supreme Court granted the motion with respect to that part of the
third cause of action asserting against Schneider a claim of reckless
infliction of emotional distress; the fourth through eighth causes of
action; that part of the ninth cause of action asserting against
Schneider a claim of aiding and abetting violations of the Human
Rights Law; that part of the tenth cause of action asserting against
Hannaford a claim of discrimination in violation of the Human Rights
Law; the eleventh and twelfth causes of action; and that part of the
thirteenth cause of action asserting against Hannaford a claim of
discrimination in violation of Title VII. The court otherwise denied
the motion. Defendants appeal and plaintiff cross-appeals.

     At the outset, we reject defendants’ contention that the court
erred in denying their request to strike factual allegations that
concern events that would be time-barred if advanced by plaintiff as a
basis for recovery. It is well settled that an earlier discriminatory
practice “may constitute relevant background evidence in a proceeding
in which the status of a current practice is at issue” (United Air
Lines v Evans, 431 US 553, 558; see also Malarkey v Texaco, Inc., 983
F2d 1204, 1211; Ganguly v New York State Dept. of Mental Hygiene-
Dunlap Manhattan Psychiatric Ctr., 511 F Supp 420, 427).

     We reject defendants’ further contention that the court erred in
denying the motion with respect to the first cause of action, against
Schneider for assault. Defendants’ own submissions in support of the
motion raise issues of fact whether Schneider engaged in physical
conduct that placed plaintiff in imminent apprehension of harmful
contact (see Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 475;
Bastein v Sotto, 299 AD2d 432, 433). Similarly, with respect to the
second cause of action, against Schneider for battery, defendants’ own
submissions raise issues of fact whether Schneider intentionally made
bodily contact of an offensive nature with plaintiff (see Cerilli v
Kezis, 16 AD3d 363, 364; Tillman v Nordon, 4 AD3d 467, 468). The
court also properly denied the motion with respect to that part of the
third cause of action asserting a claim against Schneider for
intentional infliction of emotional distress. Defendants’ own
submissions, including plaintiff’s deposition transcript, raise issues
of fact whether Schneider subjected plaintiff to a course of conduct
sufficiently outrageous to support a claim for intentional infliction
of emotional distress (see Cavallaro v Pozzi, 28 AD3d 1075, 1078-1079;
see generally Nader v General Motors Corp., 25 NY2d 560, 569).

     Defendants failed to preserve for our review their contention
that the court erred in denying the motion with respect to the tenth
and thirteenth causes of action insofar as they assert against
Hannaford claims of unlawful retaliation under the Human Rights Law
(see Executive Law § 296 [7]), as well as Title VII (see Matter of
Santoshia L., 202 AD2d 1027, 1028), and that contention lacks merit in
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                                                         CA 15-01427

any event (see generally Zann Kwan v Andalex Group LLC, 737 F3d 834,
843-845).

     We reject defendants’ contention that the court erred in denying
that part of the motion with respect to the ninth cause of action
insofar as that cause of action asserts against Rosati a claim of
aiding and abetting Schneider’s alleged violations of the Human Rights
Law (see Executive Law § 296 [6]; Nesathurai v University at Buffalo,
State Univ. of N.Y., 23 AD3d 1070, 1072). Contrary to defendants’
contention, we conclude that plaintiff alleged facts sufficient to
state a claim against Rosati individually for aiding and abetting the
alleged discriminatory conduct (see Moskal v Utica Coll., 59 AD3d 956,
957; Mitchell v TAM Equities, Inc., 27 AD3d 703, 707; Murphy v ERA
United Realty, 251 AD2d 469, 472).

     We agree with plaintiff on his cross appeal that the court erred
in granting that part of the motion seeking dismissal of plaintiff’s
eighth and twelfth causes of action asserting against Hannaford claims
premised on hostile work environment under the Human Rights Law (see
Executive Law § 296 [1] [a]) and Title VII. We note that plaintiff
does not contend that Schneider was plaintiff’s supervisor, and
Hannaford concedes that he was not. Thus, it is clear that plaintiff
is not asserting claims of hostile work environment under a
supervisor-based strict liability theory (see Vance v Ball State
University, ___ US ___, ___, 133 S Ct 2434, 2448), but instead under a
negligence theory. To establish that an employer was negligent in the
context of a claim of hostile work environment, a plaintiff “must
demonstrate that [his] employer ‘failed to provide a reasonable avenue
for complaint’ or that ‘it knew, or in the exercise of reasonable care
should have known, about the harassment yet failed to take appropriate
remedial action’ ” (Duch v Jakubek, 588 F3d 757, 762). Although we
agree with defendants that they established on their motion that
Hannaford had a reasonable avenue for complaint in place with respect
to sexual harassment in the workplace, their submissions raise issues
of fact whether plaintiff complained to Rosati, and whether Rosati was
“ ‘charged with a duty to inform the company of the harassment’ ” and
failed to do so (Duch, 588 F3d at 763). We therefore conclude that
the court erred in granting the motion with respect to the eighth and
twelfth causes of action, and we therefore modify the order
accordingly.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
