| Ewers v Columbia Hgts. Realty, LLC |
| 2007 NY Slip Op 07393 [44 AD3d 608] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Sonia Ewers, Respondent, v Columbia Heights Realty,LLC, et al., Defendants, and Walter Gorman, Appellant. |
—[*1] Gary Port, Floral Park, N.Y., for respondent.
In an action, inter alia, to recover damages for discrimination in housing on the basis of sexin violation of, among other things, Executive Law § 296 (5), the defendant WalterGorman appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated June 5,2006, which, inter alia, denied that branch of his motion which was for summary judgmentdismissing so much of the seventh cause of action as sought to recover damages for sexualharassment based on a theory of quid pro quo and, in effect, denied, as academic, that branch ofhis motion which was to dismiss so much of the seventh cause of action as sought to recoverdamages for sexual harassment based upon a theory of hostile housing environment.
Ordered that the order is modified, on the law, by deleting the provision thereof which, ineffect, denied, as academic, that branch of the defendant Walter Gorman's motion which was forsummary judgment dismissing so much of the seventh cause of action as sought to recoverdamages for sexual harassment based upon a theory of hostile housing environment andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed, without costs or disbursements.
In a housing context, quid pro quo sexual harassment "arises when the terms and conditionsof a rental, including continued occupancy, rent and the furnishing of services such as repairs, areconditioned upon compliance with the landlord's sexual demands" (Matter of State Div. of Human Rights vStoute, 36 AD3d 257, 264 [2006]). "[T]o make out a quid pro quo or conditionedtenancy claim, the tenant must show that the landlord either (1) conditioned any of the terms,conditions or privileges of tenancy on submission to his sexual requests or (2) deprived a tenantof [*2]any of the terms, conditions or privileges of tenancybecause [he or] she refused to accede to those requests" (Grieger v Sheets, 1989 WL38707, *3, 1989 US Dist LEXIS 3906, *9-10 [ND Ill, Apr. 10, 1989]).
Here, the appellant failed to establish his prima facie entitlement to judgment as a matter oflaw with respect to the plaintiff's claim to recover damages based upon a theory of quid pro quosexual harassment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Accordingly, the Supreme Court properly denied that branch of the appellant's motionwhich was for summary judgment dismissing that claim.
However, the Supreme Court improperly, in effect, denied, as academic that branch of theappellant's motion which was for summary judgment dismissing the claim to recover damagesfor sexual harassment based upon a theory of hostile housing environment. Based upon ourreview of the record, we will now determine that branch of the appellant's motion, in the interestof judicial economy. "To prevail on a hostile housing environment theory, it must be shown that(1) the complainant is a member of a protected group, (2) he or she was subjected to unwelcomeand extensive sexual harassment, in the form of sexual advances, requests for sexual favors, andother verbal or physical conduct of a sexual nature, which were not solicited or desired by thecomplainant, and which were viewed as undesirable or offensive, (3) such harassment was basedon the complainant's sex, (4) such harassment affected a term, condition, or privilege of housing,and (5) if vicarious liability is claimed, the complainant must show that the owner knew orshould have known about the harassment and failed to remedy the situation promptly"(Matter of State Div. of Human Rights v Stoute, 36 AD3d at 265). In considering atheory of hostile housing environment sexual harassment, "courts have held that 'isolated' and'innocuous' incidents do not support a finding of sexual harassment" (id. at 264, quotingDiCenso v Cisneros, 96 F3d 1004, 1008 [1996]).
In support of that branch of his motion which was for summary judgment dismissing theclaim to recover damages based upon a theory of hostile housing environment sexual harassment,the appellant demonstrated that the alleged incidents of harassment were not sufficiently severeor pervasive to create a hostile housing environment, and thus made a prima facie showing ofentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact. Rivera, J.P., Ritter,Florio and Fisher, JJ., concur.