Opinion
Argued January 20, 2000
March 6, 2000
In an action, inter alia, to recover damages for defamation, the counterclaim defendant Avenue Magazine appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated December 9, 1998, as denied its motion for summary judgment dismissing the defendant Jeanette Bryan's claim alleging sexual discrimination, and the defendants Jeanette Bryan and Barry Koven cross-appeal from stated portions of the same order.
Kane Kessler, P.C., New York, N.Y. (Jeffrey A. Oppenheim and Judith A. Stoll of counsel), for counterclaim defendant-appellant-respondent.
Mark J. Alonso, P.C., New York, N.Y. (Lorraine M. Ferrigno of counsel), for respondent-appellant Jeanette Bryan.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the cross appeal by the defendants Jeanette Bryan and Barry Koven is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8 [c] [e]); and it is further,
ORDERED that the order is affirmed insofar as appealed from by the counterclaim defendant Avenue Magazine, with costs payable to Jeanette Bryan.
Under the circumstances of this case, there are material issues of fact as to whether Avenue Magazine (hereinafter Avenue) acquiesced in the discriminatory conduct by one of its employees against Bryan or subsequently condoned it (see, Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684 ; Zuckerman v. City of New York, 49 N.Y.2d 557 ; Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44 ; Spoon v. American Agriculturalist, 120 A.D.2d 857 ). Accordingly, the Supreme Court properly denied Avenue's motion for summary judgment dismissing Bryan's sexual discrimination claim.
SANTUCCI, J.P., ALTMAN, FRIEDMANN, and GOLDSTEIN, JJ., concur.