| Bianco v Flushing Hosp. Med. Ctr. |
| 2008 NY Slip Op 06542 [54 AD3d 304] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Janet Bianco, Appellant, v Flushing Hospital MedicalCenter, Respondent, et al., Defendant. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Celena R. Mayo ofcounsel), for respondent.
In an action to recover damages for sexual harassment in violation of Executive Law §296 and Administrative Code of the City of New York § 8-107, the plaintiff appeals froman order of the Supreme Court, Queens County (Price, J.), dated November 29, 2006, whichgranted the motion of the defendant Flushing Hospital Medical Center for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantFlushing Hospital Medical Center for summary judgment dismissing the complaint insofar asasserted against it is denied.
The plaintiff commenced this action alleging, inter alia, that she was subjected to sexualharassment by the defendant Matthew Miller, an attending physician at the defendant FlushingHospital Medical Center (hereinafter the Hospital), and that the Hospital was vicariously liablefor Miller's misconduct. The Hospital moved for summary judgment dismissing the complaintinsofar as asserted against it on the ground, among other things, that the plaintiff failed to comeforward with any evidence that the Hospital acquiesced in Miller's alleged misconduct.
In the order appealed from, the Supreme Court granted the Hospital's motion. We reverse.
An "employer cannot be held liable for an employee's discriminatory act unless the employerbecame a party to it by encouraging, condoning, or approving it" (Matter of State Div. ofHuman [*2]Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687[1985]; see Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65NY2d 300, 305 [1985]). Thus, where vicarious liability is claimed, the plaintiff must demonstratethat the employer had knowledge of and acquiesced in or condoned the discriminatory conduct(see Vitale v Rosina Food Prods., 283 AD2d 141 [2001]; Sormani v Orange CountyCommunity Coll., 240 AD2d 724, 725 [1997]; Matter of Father Belle Community Ctr. vNew York State Div. of Human Rights, 221 AD2d 44, 54 [1996]; Goering v NYNEXInfo. Resources Co., 209 AD2d 834 [1994]; Spoon v American Agriculturalist, 120AD2d 857, 859 [1986]; see also Matterof State Div. of Human Rights v Stoute, 36 AD3d 257 [2006]). "An employer'scalculated inaction in response to discriminatory conduct may, as readily as affirmative conduct,indicate condonation" (Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66NY2d at 687).
Here, in opposition to the Hospital's prima facie showing of entitlement to judgment as amatter of law, the plaintiff submitted evidence establishing that the Hospital's medical director,Peter Barra, was the individual called upon by the Hospital to handle the plaintiff's formalcomplaint. The plaintiff's complaint was referred to Barra by the Hospital's "legal team" and hewas responsible for organizing a committee for a "corrective action proceeding." Miller'sultimate resignation letter was addressed to Barra. Further, the plaintiff stated at her depositionthat, prior to the filing of the formal complaint, Barra witnessed Miller trying to kiss her. Thus,triable issues of fact exist as to whether Barra knew about Miller's alleged misconduct before theplaintiff made her formal complaint and whether he acquiesced in the alleged offensive behaviorby failing to take any action. Accordingly, the Hospital's motion for summary judgmentdismissing the complaint as to it should have been denied (see Vitale v Rosina Food Prods.,283 AD2d 141 [2001]; Espaillat v Breli Originals, 227 AD2d 266, 267 [1996];Goering v NYNEX Info. Resources Co., 209 AD2d 834 [1994]; Spoon v AmericanAgriculturalist, 120 AD2d 857, 859 [1986]).
The plaintiff's remaining contentions are without merit. Lifson, J.P., Ritter, Florio and Carni,JJ., concur.