Opinion
September 23, 1983
Appeal from the Supreme Court, Monroe County, Smith, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Boomer, JJ.
Order unanimously reversed, with costs, motion granted and complaint dismissed. Memorandum: Defendant appeals from an order denying its motion for summary judgment in an action brought under section 296 Exec. of the Executive Law. The defendant discharged the plaintiff after she failed to return to work following her lunch hour. In her complaint, plaintiff alleges that she was discriminated against based upon her sex because she was discharged when she refused to continue a "personal relationship" with her immediate supervisor. Summary judgment should have been granted dismissing the complaint. It was incumbent upon the plaintiff to allege and prove that the plaintiff's employer "knew of or condoned the discriminatory conduct by [plaintiff's immediate supervisor]." ( Matter of State Univ. of N.Y. v State Human Rights Appeal Bd., 81 A.D.2d 688, 689, affd for reasons stated by App. Div. 55 N.Y.2d 896; see, also, Hart v Sullivan, 84 A.D.2d 865, affd for reasons stated by App. Div. 55 N.Y.2d 1011.) In support of its motion for summary judgment, the defendant submitted affidavits showing that it had no knowledge of any discriminatory acts by plaintiff's supervisor. Plaintiff, in opposition, has submitted no evidence to the contrary.