ADOLPH v. HILL KIRBY (2023)

Order, Supreme Court, New York County (Richard Latin, J.), entered on or about August 1, 2022, which granted defendants’ motion to dismiss the causes of action seeking damages under the New York State Human Rights Law and New York City Human Rights Law (the first through eleventh causes of action), unanimously affirmed, without costs.

Plaintiff failed to state a claim upon which relief may be granted for violations of the New York State Human Rights Law. Under former Executive Law § 296–b(2)(b), the statute in effect at the time, individuals employed in domestic service were limited to seeking recourse only for claims of harassment.  However, the complaint failed to allege a cause of action for harassment under the applicable statute (id. § 296[1][h]), instead alleging only discrimination (id. §§ 296[1][a];  296[3][a], [6], [7]), which was not covered under the version of the New York State Human Rights Law then in effect (see Matter of Thomas v. Dosberg, 249 A.D.2d 999, 1000, 672 N.Y.S.2d 164 [4th Dept. 1998];  cf.  Matter of State Div. of Human Rights v. Austin, 196 A.D.3d 409, 409, 146 N.Y.S.3d 775 [1st Dept. 2021]).  In any event, the few alleged remarks made by defendant Lizette Yusay are insufficient to state a claim for harassment on the basis of plaintiff's disability (see Lent v. City of New York, 209 A.D.3d 494, 494–495, 175 N.Y.S.3d 525 [1st Dept. 2022], lv dismissed 39 N.Y.3d 1118, 187 N.Y.S.3d 159, 208 N.E.3d 747 [2023];  Wolfe–Santos v. New York State Gaming Commn., 188 A.D.3d 622, 622, 132 N.Y.S.3d 757 [1st Dept. 2020]).

As to plaintiff's New York City Human Rights Law claims, plaintiff failed to state a claim upon which relief may be granted because the complaint does not allege that defendants employed more than four people during the 12 months before the start of the alleged unlawful discriminatory practice and continuing through the end of the alleged unlawful discriminatory practice (see Administrative Code of City of New York § 8–102;  Sorge v. Gona Realty, LLC, 188 A.D.3d 474, 475, 131 N.Y.S.3d 876 [1st Dept. 2020]).