Opinion
No. 151760/14.
07-31-2014
Bryan WATERS, Plaintiff, v. TOWN SPORTS INTERNATIONAL HOLDINGS, INC., Town Sports International LLC, John Smith, John Q, and John Roe, Defendants.
Morelli Alters Ratner LLP, New York, for Plaintiff. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, for Defendants.
Morelli Alters Ratner LLP, New York, for Plaintiff.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, for Defendants.
Opinion
CAROL R. EDMEAD, J.
In this action based on, inter alia, allegations of discrimination based on sexual orientation, defendants Town Sports International Holdings, Inc. and Town Sports International, LLC (collectively, “TSI”), John Q, and John Roe (“Roe”) move pursuant to CPLR 3211 to dismiss plaintiff Bryan Waters's (“plaintiff”) complaint as to the causes of action based on violations of the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), assault, battery, and intentional infliction of emotional distress.
Defendants do not seek to dismiss the causes of action for negligence, negligent retention, negligent supervision, and false imprisonment.
The following factual background is derived from the allegations contained in plaintiff's complaint, which, for the purposes of this decision, are assumed as true.
TSI owns and operates the New York Sports Club (“NYSC”) facility located at 200 East 36th Street in Manhattan (the “NYSC”).
On December 30, 2013, plaintiff, a gay man and a member of the specific NYSC gym for four years, entered the gym at 7:30 p.m. for his workout. After his workout, plaintiff returned to the locker room to use the shower, steam room and sauna.
Plaintiff disrobed, changed into a towel, and used the steam room. After spending approximately ten minutes in the steam room, he showered and entered the sauna. Two other men were using the sauna when plaintiff entered.
After approximately five minutes in the sauna, defendant John Smith (“Smith”), a member or employee whom plaintiff had never seen before, entered the sauna and screamed homophobic slurs at the three men, particularly focusing on plaintiff. Smith shouted epithets at the three men, including “What the f––– is going on in here you disgusting faggots?” and “You can't do things like that in here! I have people who train here!”
Plaintiff interpreted these remarks as accusations that he and the other men were engaging in homosexual activity in the sauna. However, they were not in fact engaging in any activity in the sauna, homosexual or otherwise; they were using the sauna appropriately for its intended purpose.
As Smith yelled at plaintiff and the other two men, he had his fist cocked back as if ready to attack the men at any moment, and plaintiff felt threatened.
As this occurred, John Q, a TSI janitor who was wearing a red NYSC shirt (typically worn by NYSC employees), stood outside the sauna door looking in through the glass. From outside the glass, John Q yelled at plaintiff and the two men, calling them “disgusting homosexuals” and shouted, “You can't be practicing that disgusting homosexual behavior outside of your house. If you want to practice that disgusting homosexual behavior, go home.”
Plaintiff and the two men attempted to exit the sauna, but Smith kept his fist cocked back as if he was going to hit them. After a few moments, Smith exited the sauna but leaned on the door to keep plaintiff and the men inside. Plaintiff and the two men, clad in only their towels, pushed against the door to try and exit, to no avail. Thereafter, plaintiff and one of the men, still clad in only their towels, began to ram the sauna door with their shoulders, and were eventually able to generate enough force to escape after numerous attempts.
After leaving the sauna, plaintiff tried to make his way to his locker to get dressed and leave the gym. But, Smith blocked his path and refused to let him through, yelling, “You are not going anywhere!” Eventually, plaintiff made it to his locker, after crossing his arms across his chest and making it past Smith while avoiding physical confrontation.
However, as plaintiff was attempting to change into his clothes and leave, Smith and John Q continued to direct obscenities toward him, calling him a “faggot” and a “disgusting homosexual.” Smith and John Q berated plaintiff while he was naked and changing, which caused a commotion in the locker room, and great embarrassment to plaintiff.
During this time, Roe, a TSI front desk employee wearing a black NYSC shirt, arrived in the locker room and observed what was transpiring. However, he stood by idly and did not make any attempt to defuse the situation.
Collectively, Smith, John Q, and Roe will be referred to as the “Individual Defendants.”
Once plaintiff finally got dressed, he attempted to run out of the locker room and up the stairs, so he could exit through the front doors on the main level. As he left the locker room, the Individual Defendants chased after him, yelling along the way that “you are not leaving” and that “you are going to be arrested.” Other gym members stopped their workouts to watch the three chase plaintiff. Plaintiff recognized a number of these gym members watching this transpire, and felt mortified.
As plaintiff tried to ascend the steps and exit, the Individual Defendants shoved past him and blocked the doors on the main level, preventing him from leaving. Smith and John Q continued to say, “You're not going anywhere. You're going to be arrested.” Plaintiff protested that he wanted to leave and that this was false imprisonment. Nevertheless, Smith and John Q continued to block his path.
On at least one occasion, Smith drew back his fist and asserted, “If you try to get past me, I'm going to hurt you,” which caused plaintiff to feel threatened. John Q also shouted at plaintiff, “If you hurt me, I'm going to drop you.” Also, Smith and John Q tried to rip plaintiff's backpack off his back and his cell phone out of his hand, to prevent him from making any calls or text messages. Nevertheless, plaintiff was able to fight off the two men and retain control of his possessions. He also protested that he was not going to hurt anybody, that he had never hit anyone in his life, and that he simply wanted to leave.
While this was occurring, Roe continually asked plaintiff for his NYSC identification card because it was “club policy when things like this happen.” Plaintiff refused. After several minutes of being blocked from exiting, Smith noticed a police car outside the gym, and instructed a NYSC employee to get the officer. While Smith was temporarily distracted, plaintiff lunged past him and out the door. Plaintiff sprinted down the street, and after being chased by Smith, was able to evade him after several blocks. Plaintiff has not since returned to the NYSC.
Arguments
In the moving papers, defendants argue that the complaint is devoid of any factual allegations to support plaintiff's conclusory assertion that defendants discriminated against him based on his sexual orientation, or that he was denied any of the privileges of membership at NYSC. Plaintiff was not asked to leave the NYSC at any time because of his sexual orientation. Pursuant to New York City Rules and Regulations, public establishments such as NYSC are not to permit sexual activities of any kind as they constitute a threat to the public health. Also, such rules provide the that New York State Health Commissioner, and local boards of health, can close such establishments as constituting a public nuisance.
For the remainder of this decision, the term “defendants” will refer to TSI, John Q, and Roe, as Smith is not a moving defendant herein.
As such, TSI has a policy enforced at all of its health clubs, including the subject NYSC, that sexual activity of any kind of strictly prohibited. Thus, all club members, regardless of their sexual orientation, are prohibited from engaging in sexual activity of any kind at the premises. In fact, such rule is posted clearly in the locker room areas.
Furthermore, plaintiff does not allege that he was denied access to, or use of, the club. Rather, in accordance with club policy, plaintiff was asked to relinquish his membership card because of the allegation that sexual activity of some kind had occurred in the club.
As to assault, plaintiff's fails to alleged factual support for the conclusory claim that defendants placed plaintiff in apprehension of imminent, harmful contact by them. And, Smith, who is a patron/member of the club, cannot have his actions imputed as to TSI's employees. Likewise, the complaint does not allege any facts to support the claim that any of the defendants made intentional wrongful contact with plaintiff. Thus, the battery claim must also be dismissed.
The complaint also fails to state a claim for intentional infliction of emotional distress. Here, plaintiff fails to describe which behaviors, by which defendants, qualify as “extreme.” Rather, the complaint instead alleges that Smith, a patron, participated in adverse conduct as against plaintiff. Also, the element of causation between defendants' behavior and damages (plaintiff's mental anguish) is not alleged. Moreover, plaintiff's claims of mental anguish must fail, as the allegations that he “felt threatened,” was “greatly embarrassed,” and suffered “conscious physical and emotional pain and suffering” as well as “great mental distress, shock, fright and humiliation” are insufficient. Mere stress alone cannot withstand a motion to dismiss. It is questionable under a reasonable person standard whether others would have reacted to the alleged incidents as presented in the complaint in a similar manner.
In opposition, plaintiff argues that he brings cognizable causes of action under the NYCHRL and NYSHRL because Smith's and John Q's comments, combined with their other actions, were targeted at him because of his sexual orientation. Also, Smith and John Q are plainly alleged in the complaint to be agents and/or employees of NYSC. Despite defendants' repeated references to Smith as a “patron” of NYSC, this characterization is based only on their apparent belief that he is not a NYSC employee.
Defendants' actions directly prevented plaintiff from rightfully enjoying the NYSC facilities of which he was a member. Plaintiff was threatened, embarrassed, and feared for his own safety to the point that he felt the need to run from the premises as soon as he was able to evade defendants and escape the sauna.
Additionally, defendants' argument that plaintiff was engaging in sexual activity while in the sauna is baseless, inaccurate and directly refuted by the complaint's allegations (which must be assumed as true for purposes of the motion). Defendants' motion is based on vague and unsubstantiated accusations of inappropriate sexual activity by plaintiff, and instead makes references to NYSC's policy prohibiting sexual activity, without ever stating that plaintiff violated the policy or providing evidence to that effect. This is because defendants lack such evidence.
As to assault, plaintiff properly pled same against Smith and John Q. John Q, a NYSC employee, backed Smith as he threatened plaintiff, serving as a second impediment to his escaping the sauna.
Additionally, plaintiff had further reason to fear imminent physical harm because Smith and Q continually tried to rip plaintiff's backpack and cell phone from his person. Once defendants committed these acts, plaintiff had reason to believe further acts of battery were impending.
As to battery, case law provides that battery may occur through a defendant's direct or indirect contact with the plaintiff, and making contact with something connected with the plaintiff's person suffices. Here, Smith and John Q battered plaintiff when they attempted to rip plaintiff's backpack off his back and his cell phone directly out of his hand. Also, plaintiff asserts that defendants made direct contact with plaintiff's person.
Moreover, plaintiff properly pled a claim for intentional infliction of emotional distress against Smith and John Q. Smith's and John Q's pattern of conduct was extreme and outrageous, beyond all possible bounds of decency, and atrocious and utterly intolerable within a civilized society. Plaintiff was subjected to homophobic slurs and physical threats from these defendants (at times while naked in front of other patrons) that caused him severe embarrassment and to fear for his safety and well-being. As a direct consequence, plaintiff sustained conscious physical and emotional pain and suffering, as well as great mental distress, shock, fright and humiliation.
In reply, defendants maintain that plaintiff does not allege anything other than conclusory allegations to support his claims. As to the claims for discrimination, plaintiff's isolated alleged incident is insufficient to establish the requisite pattern of discriminatory practice. Here, plaintiff was involved in a single, isolated event based upon an apparent misunderstanding about whether inappropriate conduct was occurring in the sauna. Plaintiff admittedly had been a member of NYSC for seven years before the incident, and had worked out at the subject gym for four years. During this time, plaintiff both used and enjoyed the facility without incident.
Plaintiff's argument (in the complaint) that TSI has an unlawful discriminatory policy of calling the police when purported homosexual activity occurred in the gym or its locker room facilities is ineffective. As stated in the moving papers, TSI has a policy enforced in all of its health clubs that sexual activity of any kind is strictly prohibited. Thus, all club members, regardless of their sexual orientation, are not allowed to engage in sexual activity of any kind at the facility. The policy was clearly posted in the locker room areas, and further advises all members that any member engaging in inappropriate behavior may be subject to criminal prosecution as well as immediate revocation of his membership for engaging in such behavior. Thus, if sexual activity of any kind is suspected in the gym, including locker rooms, all members have been advised that they could be subject to an investigation, revocation of their membership, and that the police could be called to enforce criminal prosecution.
Also, case law provides that a claim for discrimination cannot be sustained where a defendant called police to question an individual regarding prohibited conduct, but where the individual was ultimately not asked to leave the premises.
Moreover, the complaint, which is directed toward John Q (a janitor) and Roe (a front desk employee) does not allege that any person in a supervisory capacity was aware of the events that led to the misunderstanding. Absent evidence that a manager or other supervisor refused plaintiff admittance to a facility while the plaintiff was presence, a civil rights claim must fail. Here, plaintiff had never been denied admittance or access to a NYSC during his membership, and even enjoyed the use of the facilities on the date of the incident. It was only after an allegation by Smith, a patron, that inappropriate conduct was occurring that the defendant requested plaintiff (and the other two men in the sauna) to turn in their key cards so a proper investigation could be conducted. Plaintiff refused to comply with TSI's policy in this regard, and was not denied any privileges of club membership on the basis of his sexual orientation. The complaint is devoid of any facts to support plaintiff's conclusory allegation in this regard.
Discussion
In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the Court's role is deciding “whether the pleading states a cause of action, and, if from its four corners factual allegations are discerned, which taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail” (African Diaspora Maritime Corp. v. Golden Gate Yacht Club, 109 AD3d 204, 968 N.Y.S.2d 459 [1st Dept 2013] ; Siegmund Strauss, Inc. v. East 149th Realty Corp., 104 AD3d 401, 960 N.Y.S.2d 404 [1st Dept 2013] ).
The standard on such a motion is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46, 558 N.Y.S.2d 917 [1st Dept 1990] ; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205, 660 N .Y.S.2d 726 [1st Dept 1997] (on a motion to dismiss for failure to state a cause of action, the court must accept factual allegations as true)). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026 ; Siegmund Strauss, supra ) and the court must “accept the facts as alleged in the complaint as true, accord plaintiffs “the benefit of every possible favorable inference,” and “determine only whether the facts as alleged fit into any cognizable legal theory” (Siegmund Strauss, supra; Nonnon v. City of New York, 9 NY3d 825 [2007];Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994] ).
Factual allegations presumed to be true on a motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evidence (see Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 797 N.Y.S.2d 83 [1st Dept 2005] ). As such, the court will consider Exhibit “B” to the motion (which is TSI's purported written policy as to steam room and sauna etiquette) posted in the locker room area, as plaintiff does not dispute the existence or placement of same. The policy states, inter alia, that “inappropriate conduct of any kind in the steam room or sauna room may result in criminal prosecution as well as revocation of your club membership.”
At the outset, the court finds that as per a reading of the complaint, none of the causes of action at issue in the instant motion is directed at Roe. And, Smith is not one of the moving defendants herein. Accordingly, all causes of action in the complaint directed against Smith and Roe stand at this juncture. And, as such, the court declines to discuss further Roe's and Smith's alleged conduct, except to the extent such conduct may relate to the causes of action directed toward TSI and John Q that are at issue in this motion.
Assault
An assault is the intentional placing of another in imminent apprehension of harmful or offensive contact or conduct (see Okoli v. Paul Hastings LLP, 117 AD3d 539, 985 N.Y.S.2d 556 [1st Dept 2014] ; Holtz v. Wildenstein & Co., Inc., 261 A.D.2d 336, 693 N.Y.S .2d 516 [1st Dept 1999] ; Scott v. City of New Rochelle, 986 N.Y.S .2d 819, 2014 N.Y. Slip. Op. 24131 [Sup Ct Westchester Cty 2014] (defendants' motion for summary judgment denied based in part on allegations that defendants threatened to arrest plaintiff)).
Mere words or threats alone are insufficient to constitute an assault (see Carroll v. New York Property Ins. Underwriting Assoc., 88 A.D.2d 527, 450 N.Y.S.2d 21 [1st Dept 1982] ). However, physical injury need not be present for an assault (see Hassan v. Marriott Corp., 243 A.D.2d 406, 663 N.Y.S.2d 558 [1st Dept 1997] ; Di Gilio v. Burns Int'l Detective Agency, 46 A.D.2d 650, 359 N.Y.S .2d 688 [2d Dept 1974] (“An action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff”)).
It has been held that the threat of arrest constitutes assault (see Scott, supra; Butler v. City of Glens Falls, 2012 WL 171584 [NDNY 2012] ; Wills v. City of Troy, 2000 WL 35904583 [Sup Ct Rensselaer Cty 2000] (“Defendant claims that no assault occurred as there was no physical contact between any of the parties and because the threat of arrest does not constitute a threat of physical force. The tort of assault does not require physical contact and is defined as an intentional placing of another in fear of imminent or harmful contact”), citing 6A N.Y. Jur. Assault—Civil Aspects § 2)). Another court has also noted in dicta that the mere act of chasing a plaintiff may constitute an assault (see Mumford v. 854 Gerard Ave. Corp., 12 Misc.3d 1168(A), * 6, 820 N.Y.S.2d 844 [Sup Ct Bronx Cty 2005] ).
Here, plaintiff alleges, among other things, that John Q directed homophobic slurs at him, chased him, and threatened his arrest, which caused him to fear imminent harm. After plaintiff left the sauna and was on his way to his locker, Smith and John Q continued to berate plaintiff with homophobic slurs. And, after plaintiff got dressed, Smith, John Q, and Roe chased and pursued plaintiff, and yelled at him along the way that he was not allowed to leave and that he would be arrested. Also, the three men shoved past plaintiff before he could reach the exit doors, preventing him from leaving. At this time, John Q shouted at plaintiff that if he were to hurt him, he (John Q) would “drop” plaintiff. Accepting plaintiff's allegations as true, and given that defendants failed to address plaintiff's contentions as to this claim in reply, plaintiff has stated a claim for assault against John Q.
Battery
To maintain a cause of action for battery, plaintiffs must prove an intentional wrongful or offensive physical contact with the plaintiff without consent (see Hassan, supra; Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55, 559 N.Y.S.2d 336,aff'd., 77 N.Y.2d 981 [1991] ). An intent to do harm is not an essential element of a battery claim, as “an action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself ‘offensive’, i.e., wrongful under all the circumstances” (Messina v. Alan Matarasso, M.D., F.A.C.S., P.C., 284 A.D.2d 32, 35, 729 N.Y.S.2d 4 [1st Dept 2001], citing Zgraggen v. Wilsey, 200 A.D.2d 818, 606 N.Y.S.2d 444 [3d Dept 1994] ). The only issue is whether the contact was offensive in nature (see Zgraggen, supra ).
Also, the contact need not be direct in nature, and may be indirect (see Restatement (First) of Torts § 13 ). In other words,
“Since the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff's actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person” (see Official Comment to Restatement (Second) of Torts § 18 ).
The Restatement has been cited in several New York decisions concerning battery (see, e.g., Murphy v. Acceptance Indem. Ins. Co ., 472 Fed.Appx. 5 [2d Cir2012] ; Ricca v. U.S., 488 F.Supp. 1317 [EDNY 1980] ; Baldinger v. Banks, 26 Misc.2d 1086, 201 N.Y.S .2d 629 [Sup Ct Kings Cty 1960] ).
Here, plaintiff alleges that John Q tried to remove his backpack off his back, and his cell phone directly out of his hand. Plaintiff further alleges that this contact was intentional, without consent, and offensive, as it was accompanied by homophobic comments and threats of punishment, arrest and/or revocation of membership. And, as with the claim for assault, defendants do not dispute plaintiff's contentions in their reply. Accordingly, plaintiff states a claim for battery against John Q.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress has the following elements: extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. Liability for the tort is found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (see Howell v. New York Post Co., 81 N.Y.2d 115 [1993] ). And, courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate, systematic and malicious campaign of harassment, intimidation, humiliation and abuse of plaintiff (see Seltzer v. Bayer, 272 A.D.2d 263, 709 N.Y.S.2d 21 [1st Dept 2000] ).
Here, plaintiff alleges that on multiple occasions throughout the incident, John Q shouted homophobic epithets at him (see Russo v. Iacono, 73 A.D.2d 913, 423 N.Y.S.2d 253 [2d Dept 1980] (“An action for the intentional infliction of emotional distress is pleaded by [defendant's counterclaim] allegations that plaintiff on three separate occasions shouted vile, objectionable and obscene language at her”)). Also, homophobic slurs have been held to constitute the requisite “extreme and outrageous conduct” (see Thanning v. Gulotta, 898 F.Supp. 134 [EDNY 1995] ). Moreover, plaintiff alleges that a portion of this beratement occurred in front of other NYSC patrons, while he was naked in the locker room. And, that as a direct consequence of the incident, he sustained physical and emotional pain and suffering, as well as great mental distress, shock, fright and humiliation. Defendants' contention that “it is questionable under a reasonable person standard whether others would have reacted to the alleged incidents as presented in the complaint in a similar manner” is disingenuous and speculative. And, the court notes that defendants did not address plaintiff's contentions as to this cause of action in reply. As such, plaintiff states a cause of action for intentional infliction of emotional distress against John Q.
Discrimination Under the NYSHRL and NYCHRL
Here, the court must determine whether plaintiff sufficiently pled claims against only TSI relating to violations of the NYSHRL and NYCHRL, as TSI is the only named defendant in the complaint as to these causes of action.
The NYSHRL (Executive Law § 296(2)(a) ) forbids discrimination by “any ... employee of an place of public accommodation ... because of the ... sexual orientation of any person ... to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” Section 292(9) provides that gymnasiums are included in the definition of “public accommodation.” The NYSHRL must be liberally construed to accomplish the purposes of the statute (see Cahill v. Rosa, 89 N.Y.2d 14, 20 [1996] ).
Section 8–107(4) of the NYCHRL provides that “it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or perceived ... sexual orientation ... of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges.” Also, although discrimination on the basis of sexual orientation must be beyond what is considered “petty slights and trivial inconveniences,” there need not be a showing of a severe and pervasive conduct (see Salemi v. Gloria's Tribeca Inc., 115 AD3d 569, 982 N.Y.S.2d 458 [1st Dept 2014] ). On this note, the NYCHRL is intended to be even more expansive than the NYSHRL (see Doe v. City of New York, 42 Misc.3d 502, 976 N.Y.S.2d 360, 363 [Sup Ct New York Cty 2013] ).
The specific allegations in the complaint as to these causes of action are as follows: TSI had and enforced unlawful discriminatory policies targeted against homosexual men, such as (a) calling the police when purported homosexual activity occurred in the gym or its locker room facilities; (b) physically restraining gym patrons accused of homosexual activity; and (c) preventing gym patrons accused of homosexual activity from leaving the gym until they forfeited their NYSC identification cards.
TSI fails in its moving papers to demonstrate its entitlement to dismissal of these claims.
As noted above, TSI submits a copy of the sign containing TSI's purported written policy regarding locker room/steam room/sauna conduct. The sign, posted in the men's locker room before and on the date of the incident, unequivocally provides all members that any member engaging in “inappropriate conduct” of any kind in the steam room or sauna room may result in criminal prosecution as well as revocations of NYSC membership.
Although such policy, if enforced in accordance with its language, could be non-discriminatory, the facts allege that TSI (by its employees) enforced this purported written policy against homosexuals, and thus, based on plaintiff's sexual orientation. Thus, the submission of the written policy, without more, fails to establish TSI's entitlement to dismissal at this juncture. TSI also failed to establish that its employees would confront sexual activity among heterosexuals in the sauna in the same manner as its employees confronted plaintiff. TSI fails to make any sort of demonstration that its employees' (including Smith's) alleged behavior—and thus enforcement of its purported written policy—would be applied in the same way if plaintiff were heterosexual. TSI fails to demonstrate that it cannot be held vicariously liable for its employees' alleged discriminatory actions, as it does not establish that the employees' actions were beyond the scope of their duties (and/or its written policy) (see Milosevic v. O'Donnell, 89 AD3d 628, 934 N.Y.S.2d 375 [1st Dept 2011] ).
TSI's other arguments in the moving papers fail to alter the court's conclusion. Although “plaintiff was not asked to leave the club at any time because of his sexual orientation”; “plaintiff does not allege that he was denied access to, or use of, the club”; and, “in accordance with club policy; the plaintiff was asked to relinquish his membership card because of the allegation that prohibited sexual activity of some kind had occurred in the club itself,” such assertions are insufficient to overcome plaintiff's allegations to the contrary in describing the entirety of the alleged incident. Allegedly, plaintiff was chased from the sauna to the locker room, and then forced to escape the gym based on TSI's employees' homosexual animus, homosexually-based remarks, and pursuit of him while he was enjoying the privileges and use of the TSI gym.
The court will not consider TSI's remaining arguments, raised in reply for the first time (see McDonald v. Edelman & Edelman, P.C., 118 AD3d 562, 988 N.Y.S.2d 591 [1st Dept 2014] ). The argument that plaintiff's “isolated alleged single incident is insufficient to establish a pattern of discriminatory practice” does not address any argument raised by plaintiff in opposition. The same applies to TSI's citation to Henry v. Lucky Strike Entertainment, LLC, (2013 WL 4710488 [EDNY 2013] ), which, in any event, concerned a case based on alleged racial discrimination where the defendant bowling alley called police to question a patron who was allegedly denied access. Moreover, TSI's argument that the complaint lacks allegations that a person in a supervisory capacity was aware of the incident does not address anything raised in opposition, and is, in any event, insufficient, at this juncture, to defeat the NYSHRL and NYCHRL claims as alleged.
Accordingly, defendants' motion is denied in its entirety.
Conclusion
Based on the foregoing, it is hereby
ORDERED that TSI, John Q, and Roe's motion is denied in its entirety; and it is further
ORDERED that TSI, John Q, and Roe shall serve their Answer within 20 days of entry of this order; and it is further
ORDERED that the parties shall appear for a preliminary conference on September 30, 2014, at 2:15 p.m; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.
Based on the accompanying Memorandum Decision, it is hereby
ORDERED that TSI, John Q, and Roe's motion is denied in its entirety; and it is further
ORDERED that TSI, John Q, and Roe shall serve their Answer within 20 days of entry of this order; and it is further
ORDERED that the parties shall appear for a preliminary conference on September 30, 2014, at 2:15 p.m; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.