| Rietschel v Maimonides Med. Ctr. |
| 2011 NY Slip Op 03045 [83 AD3d 810] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Petra Rietschel, Appellant, v Maimonides Medical Centeret al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Ricki E. Roer ofcounsel), for respondents.
In an action to recover damages for sexual harassment, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated March 12, 2010, which granted thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion todismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) is denied.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). Whereevidentiary material is submitted and considered on a motion to dismiss a complaint pursuant toCPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the questionbecomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and,unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact atall and unless it can be said that no significant dispute exists regarding it, dismissal should noteventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Fishberger v Voss, 51 AD3d 627,628 [2008]). "A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the groundthat the action is barred by documentary evidence may be granted only where the documentaryevidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing adefense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; see Goshen vMutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
Here, the plaintiff alleged that, following the end of a consensual sexual relationship with thedefendant Patrick Borgen, he made unwelcomed sexual advances, which she rebuffed, and thather reaction was used as a basis for not renewing her employment with the defendantMaimonides Medical Center (see Mauro v Orville, 259 AD2d 89, 91-92 [1999]).Contrary to the defendants' contention, the fact that the parties had engaged in a consensualrelationship prior to the alleged unwelcomed [*2]sexual advancesdoes not warrant dismissal of the complaint (see Babcock v Frank, 729 F Supp 279, 287[1990]; Keppler v Hinsdale Tp. High School Dist. 86, 715 F Supp 862, 867-868 [1989];cf. Mauro v Orville, 259 AD2d at 93). Further, the evidence the defendants submittedfailed to establish that the plaintiff's allegation that Borgen was her supervisor or had the abilityto influence employment decisions is not a fact at all and that no significant dispute existsregarding it (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; Kotcher v Rosa &Sullivan Appliance Ctr., Inc., 957 F2d 59, 62 [1992]; cf. Myers v Office Depot, Inc.,2007 WL 2413087 [2007], 2007 US Dist LEXIS 59231 [ED Mich 2007]). Thus, thedefendants were not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (7).
Nor were the defendants entitled to dismissal of the complaint pursuant to CPLR 3211 (a)(1). The evidence the defendants submitted either was not documentary within the meaning ofCPLR 3211 (a) (1) or failed to utterly refute the plaintiff's allegations and conclusively establish adefense as a matter of law (see GranadaCondominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d78, 84-85 [2010]).
The parties' remaining contentions are either academic in light of the determination orwithout merit. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.