L.-M.L., Plaintiff, v. H.G., M.D. and M.-C.P.A., P.C., Defendants. (2026)

The papers filed electronically via NYSCEF numbered 89 - 113, 115 - 120, 122, and 123 - 124 ("Motion") were read and considered herein. Upon such reading and consideration, the Motion is disposed as follows:

BACKGROUND

Plaintiff L.-M. L ("Plaintiff") commenced this action with the filing of the Summons and Complaint on NYSCEF on November 12, 2024. Plaintiff alleges causes of action sounding in negligence; negligent hiring, retention, and supervision; sexual harassment, gender discrimination, hostile work environment, and retaliation under New York State Human Rights Law (NYSHRL); battery and sexual assault; medical malpractice; and, lack of informed consent. More specifically, Plaintiff alleges, inter alia, that Defendant H. G. ("Defendant G." and or "Dr. G."), a pulmonary doctor employed by Defendant M.-C. P.A., sexually assaulted Plaintiff, who was his patient and subordinate co-worker in their workplace, under the pretense of an invasive non-chaperoned physical exam that violated the relevant standards of care. Defendant G. filed his Answer with affirmative defenses on NYSCEF on January 9, 2025. Defendant M.-C. P. A. filed their Answer with affirmative defenses on NYSCEF on January 9, 2025. The Note of Issue was filed on February 19, 2026. On March 13, 2026, Defendants brought the within Motion seeking an order pursuant to CPLR § 3212 granting summary judgment to Defendants G. and M.-C. P. A. as against Plaintiff. Plaintiff opposes said Motion.

DISCUSSION

The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 NY2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 AD2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 711 N.Y.S.2d 131 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 525 N.Y.S.2d 793 (1988); Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 (1980).

Once the Defendant has made such prima facie showing, the burden then shifts to the Plaintiff to lay bare her proof and demonstrate the existence of a material triable issue of fact regarding her claims against the Defendant. Georges v. Swift, 194 AD2d 517, 518, 598 N.Y.S.2d 545 (2d Dept. 1993). The Court then must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference that may be drawn from the evidence. Negri v. Stop and Shop, Inc., 65 NY2d 625 (1985); Nash v. Port Washington Union Free School District, 83 AD3d 136 (2nd Dept 2011); Pearson v. Dix McBride, LLC, 63 AD3d 895 (2nd Dept 2009). Plaintiff, in opposition, must submit evidentiary facts or materials to rebut the prima facie showing by Defendant that they were not negligent in order to demonstrate the existence of a triable issue of fact. Khosrova v. Westermann, 109 AD3d 965 (2nd Dept 2013), citing Zapata v. Buitriago, 107 AD3d 977 (2nd Dept 2013); Stukas v. Streiter, 83 AD3d 18, 24 (2nd Dept 2011).

The requisite elements of proof in a medical malpractice action are: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage. Wiands v. Albany Medical Center, 29 AD3d 982, 983, 816 N.Y.S.2d 162 (2d Dept. 2006). Here, to support her contention that the alleged sexual nature of Defendant G.'s conduct does not preclude a finding of medical malpractice because the unauthorized pelvic exam occurred during the rendition of her medical treatment, Plaintiff relies on, inter alia, the holding in "Jane Doe" v Sharma, 62 Misc 3d 627, 89 N.Y.S.3d 548 (Sup. Ct. Nassau County 2018). In "Jane Doe" v Sharma, the trial court determined that the jury's verdict, finding that defendant-physician was liable for malpractice and that defendant-medical practice was negligent in permitting defendant to practice medicine while impaired by a cognitive disability — an aggressive form of frontal temporal dementia that they were aware of when defendant exposed himself and engaged in sexual conduct while in an examination room with plaintiff-patient during a scheduled appointment to receive test results — was not against the weight of the evidence. In rendering said decision, said trial court stated the following:

" 'The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts' (Fragosa v Haider, 17 AD3d 526, 526-527 [2d Dept 2005], citing Smith v Pasquarella, 201 AD2d 782, 783 [3d Dept 1994], quoting Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; cf. Evangelista v Zolan, 247 AD2d 508, 509-510 [2d Dept 1998]).

Generally, 'an alleged negligent act constitutes medical malpractice when it can be characterized as a 'crucial element of diagnosis and treatment' and 'an integral part of the process of rendering medical treatment to [the plaintiff]' (Spiegel v Goldfarb, 66 AD3d 873, 874 [2d Dept 2009], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; see also Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [the 'inquiry' in a medical malpractice action involves 'an analysis of the medical treatment furnished']). However, a physician's conduct can be malpractice where it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment' (Gross v Kurk, 224 AD2d 582, 582 [2d Dept 1996]; see also 1B NY PJI3d 2:150 at 49 [2018]; Scott v Uljanov, 74 NY2d 673, 674 [1989] ['(M)edical malpractice is simply a form of negligence, no rigid analytical line separates the two']; Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; Bazakos v Lewis, 12 NY3d 631, 634 [2009]). Significantly, '[i]n distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached (see Pacio v Franklin Hosp., 63 AD3d 1130 [2009]; Ryan v Korn, 57 AD3d 507, 508 [2008]; Caso v St. Francis Hosp., 34 AD3d 714 [2006]).' (Spiegel v Goldfarb, 66 AD3d 873, 874 [2d Dept 2009]) . . .

In the majority of such cases [where a physician intentionally sexually abuses a patient], the acts of the physician have been found to constitute an intentional tort outside of the treatment of the patient, rather than malpractice (Dupree v Giugliano, 87 AD3d at 977 [there is a 'generally unobjectionable proposition that a doctor's sexual relationship with his or her patient is not malpractice unless the sexual relationship was part of, or related to, treatment']; De La Cruz v Nour, 134 AD3d 883, 884 [2d Dept 2015] [sexual assault of patient's mother during office visit was an intentional tort with a one year statute of limitations]; Fragosa v Haider, 17 AD3d at 527; Trott v Merit Dept. Store, 106 AD2d 158, 160 [1st Dept 1985]).' " See "Jane Doe" v Sharma, at 631-633.

While the trial court holding in "Jane Doe" is informative, it is distinguishable from the case at bar. In arriving at its decision, said trial court stated that "the unique circumstances of [said] case require[d] one to consider whether the defendant [doctor] departed from the accepted standards of the medical profession by continuing to practice medicine under a disability that he knew (or should have known) caused him to exhibit masturbatory automatisms and whether because the plaintiff was the unfortunate victim of one of these automatisms while a patient in [said doctor's] office, these events can be said to 'bear substantial relationship to the rendition of medical treatment' to the plaintiff" (Id. at 634). No such "unique circumstance" exists in the case at bar.

However, in Hooker v Magill, 2015 WL 13647270 (N.Y.Sup.), 2015 NY Slip Op. 32753(U) (Trial Order), a case closer on point to the case at bar, the trial court, while also noting the holding in Gross v Kurk, 224 AD2d 582, 582 [2d Dept 1996], held that the conduct alleged therein was intentional in nature and did not sound in negligence or medical malpractice. In Hooker v Magill, the Plaintiff alleged in the complaint that while a patient in the psychiatric ward for an eating disorder, the doctor purposely overdosed her in order to undermine her ability to effectively ward off the doctor's sexual misconduct.

The facts at bar are also distinguishable from those in Dupree v Giugliano, 87 AD3d 975, 929 N.Y.S.2d 305 (2nd Dept. 2011) (sexual relationship between mental health provider and patient). In comparing Gross v Kurk, 224 AD2d 582, 582 (2d Dept 1996) (plaintiff had a social and sexual relationship with an allergist), the Dupree Court held that "[a] mental health provider's duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship" (see Id. at 977-978). The Dupree Court also noted that plaintiff's expert testified that, "it was entirely foreseeable that 'eroticized transference' — in which the doctor becomes, for the patient, 'a very sexually charged figure — would occur as a result of the treatment. Rather than competently dealing with that transference, as the applicable standard of care requires, the defendant exploited it" see Id. at 977.

Based on the foregoing, Plaintiff's sixth cause of action sounding in medical malpractice and seventh cause of action sounding in lack of informed consent are dismissed since the conduct by Defendant G., as alleged herein, was intentional in nature and did not sound in negligence or medical malpractice. For the same reason, Plaintiff's first cause of action sounding in negligence, is dismissed in part, only as against Defendant G. As to the content or sufficiency of Defendants' medical expert affirmation(s), since the alleged conduct does not sound in negligence or medical malpractice, no expert affidavit is required (see, Hooker v Ma, 2015 WL 13647270 [N.Y.Sup.], 2015 NY Slip Op. 32753[U] [Trial Order]). Notwithstanding, unlike in Dupree, the Plaintiff herein did not submit an expert affirmation raising an issue of fact related to a purported deviation or departure from an applicable standard of care, akin to the expert testimony submitted in Dupree v Giugliano, 87 AD3d 975, 929 N.Y.S.2d 305 (2nd Dept. 2011) or "Jane Doe" v Sharma, 62 Misc 3d 627, 89 N.Y.S.3d 548 (Sup. Ct. Nassau County 2018) (see also, Alvarez v Prospect Hosp., 68 NY2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

As to Defendants' contention that Plaintiff's fifth cause of action for battery and sexual assault, as against Defendant G., is time barred,

" '[a] defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired. The burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations' or whether the statute of limitations has been tolled' (Cammarato v. 16 Admiral Perry Plaza, LLC, 216 AD3d 903, 904—905, 189 N.Y.S.3d 615, quoting Osborn v. DeChiara, 165 AD3d 1270, 1271, 87 N.Y.S.3d 97; see Schulman v. Schulman Family Enters., 222 AD3d 898, 899, 202 N.Y.S.3d 405)" (see, DeBlasi v DeBlasi, 238 AD3d 711, 233 N.Y.S.3d 667 [2nd Dept. 2025]) .

A cause of action sounding in battery and sexual assault is governed by a one-year statute of limitations (see CPLR 215[3]; see also, Cerilli v Kezis, 306 AD2d 430, 761 N.Y.S.2d 311 [2nd Dept. 2003]). The alleged intentional tort (that Defendant G. inserted his fingers in and out of Plaintiff's vagina multiple times) was alleged to have occurred on December 20, 2021, more than one year prior to the November 12, 2024 commencement of the within action. As such, Defendants met their initial burden of proving, prima facie, that the time in which to commence the action has expired. The burden having shifted to the Plaintiff, it is she who fails to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations or whether the statute of limitations has been tolled. Plaintiff contends that Defendants do not inform the Court of CPLR § 213-c, which provides a 20-year statute of limitations for certain sexual offenses irrespective of any other CPLR provision; yet it is the Plaintiff who has the burden of demonstrating how the facts alleged, fit into CPLR § 213-c, and more specifically one of the penal codes set forth therein, but has failed to do so. Accordingly, Plaintiff's fifth cause of action for battery and sexual assault, as against Defendant G., is dismissed as time barred.

Turning to the portion of Defendants' Motion seeking dismissal of Plaintiff's cause of action sounding in negligent hiring, retention, and supervision as against Defendant M.-C. P. A., "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment (see, Riviello v Waldron, 47 NY2d 297, 302). A sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933)" (see, N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251-252, 765 N.E.2d 844, 739 N.Y.S.2d 348 [2002]).

However,

" '[a]lthough an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee' (Johansmeyer v. New York City Dept. of Educ., 165 AD3d 634, 635, 85 N.Y.S.3d 562 [citations and internal quotation marks omitted]; see MCVAWCD—DOE v. Columbus Ave. Elementary Sch., 225 AD3d 845, 846, 207 N.Y.S.3d 669). '[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury' (D.T. v. Sports & Arts in Schs. Found., Inc., 193 AD3d 1096, 1097, 147 N.Y.S.3d 622 [internal quotation marks omitted]; see Johansmeyer v. New York City Dept. of Educ., 165 AD3d at 635, 85 N.Y.S.3d 562). 'The employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring, ... retention, or supervision of the employee' (Sayegh v. City of Yonkers, 228 AD3d 690, 691, 213 N.Y.S.3d 129 [internal quotation marks omitted]; see MCVAWCD—DOE v. Columbus Ave. Elementary Sch., 225 AD3d at 846—847, 207 N.Y.S.3d 669)" (see, Trunco v Eastport-South Manor Cent. Sch. Dist., 238 AD3d 929, 930-931, 235 N.Y.S.3d 352, 446 Ed. Law Rep. 319 [2nd Dept. 2025]).

In support of the aforesaid portion of their Motion for Summary Judgment seeking to dismiss Plaintiff's cause of action sounding in negligent hiring, retention, and supervision as against Defendant M.-C. P. A., Defendants attempt to shift their prima facie burden to tender sufficient evidence to demonstrate the lack of material issues of fact by merely contending that it is the Plaintiff who has failed to produce evidence. As such, Defendants have not met their burden sufficient to warrant a judgment in their favor as a matter of law related to Plaintiff's cause of action sounding in negligent hiring, retention, and supervision as against Defendant M.-C. P. A.

Notwithstanding, Defendants' own submissions in support of the within Motion raise material issues of fact, for example: whether appropriate measures were taken to evaluate Dr. G.'s employment and fitness at the time Dr. G. was hired; if Defendant M.-C. P. A. was negligent in its supervision of Dr. G., if any; and if Defendant M.-C. P. A. had notice of Dr. G.'s propensity of the conduct at issue, if any. More specifically, Defendants submitted the deposition transcript of Dr. N. S. S. ("Dr. S."), who is the President of Defendant M.-C. P. A. (see NYSCEF Doc. No. 104 p. 11). Dr. S. testified, inter alia, as follows: that he is responsible for hiring and firing employees (see NYSCEF Doc. No. 104 p. 11); that he did not know if Dr. G. received training in sexual harassment (see NYSCEF Doc. No. 104 pp. 45-46); that when he formed Defendant M.-C. P. A., he was not aware of the following — Dr. G.'s training, or whether Dr. G. had received any training in sexual harassment or gender discrimination (see NYSCEF Doc. No. 104 p. 49); that he did not train Dr. G. in sexual harassment policies (see NYSCEF Doc. No. 104 p. 49); and that Defendant M.-C. P. A. does not have a sexual harassment policy (see NYSCEF Doc. No. 104 p. 50).

As to whether Defendant M.-C. P. A. was negligent in their supervision of Dr. G., if any, in addition to the aforementioned testimony, a material issue of fact exists as to whether Dr. G. was ever supervised. Dr. S., the President of Defendant M.-C. P. A. (see NYSCEF Doc. No. 104 p. 11), who testified, inter alia, that he is responsible for hiring and firing employees (see NYSCEF Doc. No. 104 p. 11); yet, he also testified that he was not in the office with Defendant G. and rarely interacted with him (see NYSCEF Doc. No. 104 pp. 145-146). In support of their Motion, Defendants also submitted the deposition transcript of Plaintiff. Said transcript demonstrates that Plaintiff testified that S. N. ("Ms. N."), an employee of Defendant M.-C. P. A., who described her position "like HR", told Plaintiff that years prior to the incident at issue, said employee had been touched inappropriately by Dr. G. (see NYSCEF Doc. No. 104 pp. 183-185), thereby raising a material issue of fact as to whether Defendant M.-C. P. A. had notice of Dr. G.'s propensity of the conduct at issue. It was only in their reply that Defendants submitted the affidavit of Ms. N. (NYSCEF Doc No. 123), wherein she disputes Plaintiff's testimony, thereby raising a material issue of fact.

For the same reasons set forth above, the portion of Defendants' Motion seeking to dismiss Plaintiff's first cause of action sounding in negligence as against Defendant M.-C. P. A. is denied. More specifically, Plaintiff alleges "that Defendants owed a duty of care to keep patient Plaintiff safe from sexual assault of the kind that befell Plaintiff by doctors under the supervision and control of M.-C. P. A." (see NYSCEF Doc. No. 8 ¶ 28). Here, an issue of fact exists as to what training or supervision, if any, did Defendant G., as an employee of Defendant M.-C. P. A., receive. Notwithstanding, Defendant M.-C. P. A. "has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety (see, Morris v Lenox Hill Hosp., 232 AD2d 184, 185, affd for reasons stated 90 NY2d 953)"(see, N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252-253, 765 N.E.2d 844, 739 N.Y.S.2d 348 [2002]). Dr. S. testified that Defendant G. is a 50/50 equal owner of Defendant M.-C. P. A. [see NYSCEF Doc. No. 104 p. 10). Therefore, a material issue of fact exists as to whether it was reasonably foreseeable that Defendant M.-C. P. A. was alerted to Dr. G.'s alleged inappropriate conduct (see, N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252-253, 765 N.E.2d 844, 739 N.Y.S.2d 348 [2002]).

The Court turns its attention to the portion of Defendants' Motion seeking dismissal of Plaintiff's causes of action sounding in sexual harassment, gender discrimination, hostile work environment, and retaliation under New York State Human Rights Law ("NYSHRL"). Notably, in their initial moving papers, Defendants do not present any case law in support of their contentions for dismissal of the aforesaid claims. Notwithstanding, said claims are not time barred since they are subject to a three-year statute of limitations (see, CPLR § 214[2]; and Acala v. Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d 706, 707, 201 N.Y.S.3d 202 (2d Dept. 2023).

"A plaintiff claiming a hostile work environment animated by discrimination in violation of the NYSHRL must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998). To determine whether a hostile work environment exists, a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiff's work performance (see La Marca—Pagano v. Dr. Steven Phillips, P.C., 129 AD3d at 919—920, 12 N.Y.S.3d 192). 'Even a single incident of sexual harassment can create a hostile work environment if the alleged conduct is sufficiently severe' (Beharry v. Guzman, 33 AD3d 742, 743, 823 N.Y.S.2d 195).

Under the NYCHRL  ¹ , a plaintiff claiming a hostile work environment need only demonstrate that he or she was treated 'less well than other employees' because of the relevant characteristic (Reichman v. City of New York, 179 AD3d 1115, 1118, 117 N.Y.S.3d 280 [internal quotation marks omitted]; see Nelson v. HSBC Bank USA, 87 AD3d 995, 999, 929 N.Y.S.2d 259). The conduct alleged must, however, exceed 'what a reasonable victim of discrimination would consider petty slights and trivial inconveniences' (Williams v. New York City Hous. Auth., 61 AD3d 62, 80, 872 N.Y.S.2d 27 [internal quotation marks omitted]), and 'mere personality conflicts' will not suffice to establish a hostile work environment (Forrest v. Jewish Guild for the Blind, 3 NY3d at 309, 786 N.Y.S.2d 382, 819 N.E.2d 998)" (see, Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003, 148 N.Y.S.3d 238 [2nd Dept. 2021]).

Here, Defendants fail to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the causes of action alleging violations of New York State Human Rights (Executive Law § 296) as are predicated upon a claim of hostile work environment insofar as asserted against them. More specifically, Defendants fail to demonstrate, prima facie, that Plaintiff's allegations were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of her employment (see, Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003, 148 N.Y.S.3d 238 [2nd Dept. 2021]), citing to Dillon v Ned Mgt., Inc., 85 F Supp 3d 639, 663 [ED NY 2015]; La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d at 920). Plaintiff has alleged that Defendant G. (who Dr. S. describes as a 50/50 equal owner of Defendant M.-C. P. A. [see NYSCEF Doc. No. 104 p. 10) sexually assaulted her on December 20, 2021. As set forth above, "[e]ven a single incident of sexual harassment can create a hostile work environment if the alleged conduct is sufficiently severe" (see, Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003, 148 N.Y.S.3d 238 [2nd Dept. 2021]), citing to Beharry v. Guzman, 33 AD3d 742, 743, 823 N.Y.S.2d 195). Defendants only argument in support of their Motion to dismiss Plaintiff's claim of hostile work environment, at best, is Plaintiff's "unsubstantiated description of the events that she alleges took place during Dr. G.'s December 20th, 2021 physical examination" (see NYSCEF Doc. No. 90 ¶ 12) — the aforesaid argument actually raises an issue of fact.

As to Plaintiff's claim of gender discrimination, under the NYSHRL,

"a plaintiff alleging discrimination in violation of the NYSHRL is required to establish that '(1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination' (Niemotko v. Mount St. Mary Coll., 241 AD3d 701, 702 [internal quotation marks omitted]; see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 709—710). A plaintiff seeking to prove a cause of action alleging discrimination 'may raise such an inference by showing that the employer subjected him [or her] to disparate treatment, that is, treated him [or her] less favorably than a similarly situated employee outside his [or her] protected group' (Castro v. City Univ. of NY, 238 AD3d 1106, 1107 [internal quotation marks omitted]; see Dotson v. J.C. Penney Co., Inc., 159 AD3d 1512, 1514). 'When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances' (Castro v. City Univ. of NY, 238 AD3d at 1107—1108 [internal quotation marks omitted]; see Diaz v. Minhas Constr. Corp., LLC, 188 AD3d 812, 814). 'The key is that they be similar in significant respects' (Castro v. City Univ. of NY, 238 AD3d at 1108 [internal quotation marks omitted] )" (see, Leibowitz v. New York County Lawyers Association, --- N.Y.S.3d ----2026 WL 2177869 [2nd Dept 2026]).

It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination (see e.g. Williams v. New York City Hous. Auth., 61 AD3d 62, 75, 872 N.Y.S.2d 27 [1st Dept.2009], lv. denied 13 NY3d 702, 2009 WL 2622097 [2009] [sexual harassment is "one species of sex- or gender-based discrimination"]; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 [1998]; King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 539 [7th Cir.1990] ). As such, given Plaintiff's allegation that Defendant G. sexually assaulted her, she has sufficiently alleged a gender-based discrimination claim.

"To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of triable issue[s] of fact as to whether the explanations were pretextual" (Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d at 710 [internal quotation marks omitted] )" (see, Leibowitz v. New York County Lawyers Association, --- N.Y.S.3d ----2026 WL 2177869 [2nd Dept 2026]). Here, Defendants have not met their prima facie burden. As above, again, Defendants only argument in response to Plaintiff's allegation that Defendant G. sexually assaulted her, is Plaintiff's "unsubstantiated description of the events that she alleges took place during Dr. G.'s December 20th, 2021 physical examination" (see NYSCEF Doc. No. 90 ¶ 12). Said argument actually raises a material issue of fact.

For the same reason, the portion of Defendants' Motion seeking to dismiss Plaintiff's cause of action sounding in sexual harassment under New York State Human Rights Law is also denied. The only argument Defendants raise in support of said portion of their Motion is that Plaintiff 'was able to describe no incidents of sexual harassment . . . other than her unsubstantiated description of the events that she alleges took place during Dr. G.'s December 20th, 2021 physical examination (see, NYSCEF Doc. No. 90 ¶ 12). However, the aforesaid allegation fits into the kind of conduct contemplated by NYSHRL (see, Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 38 N.Y.S.3d 563 [2nd Dept. 2016] [plaintiff's supervisor rubbed his hand back and forth over his groin and inner thigh while making "grunting noises of a sexual nature"]).

" 'To make a prima facie showing of retaliation under the NYSHRL, a plaintiff must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon that activity, and (4) there is a causal connection between the protected activity and the adverse action' (Makharadze v. Ognibene, 239 AD3d 844, 846—847 [internal quotation marks omitted]; see Reichman v. City of New York, 179 AD3d at 1119). . . 'To establish its entitlement to summary judgment in a retaliation case [under either the NYSHRL . . ], a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual' (Reichman v. City of New York, 179 AD3d at 1119—1120 [internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004)" (see, Leibowitz v. New York County Lawyers Association, --- N.Y.S.3d ----2026 WL 2177869 [2nd Dept 2026]).

Here, Defendants' own submission in support of the within Motion raises a material issue of fact related to Plaintiff's claim of retaliation, given Plaintiff's allegation as against Defendant G.. While Plaintiff's firing did come approximately 11 months after the alleged sexual assault, notwithstanding that Dr. S. testified that he is responsible for firing employees, he also testified that in the last five years, the only time he discussed firing an employee with Defendant G., was when he fired the Plaintiff (see NYSCEF Doc. No. 104 pp. 44-45).

As to Defendants' arguments that Plaintiff's purported separate causes of action for intentional or negligent infliction of emotional distress and punitive damages must be dismissed, Plaintiff did not allege such separate causes of action. Instead, Plaintiff plead same as damages. Damages for emotional distress and punitive damages are compensable under Human Rights Law cases (see, Levine v Pee Wee & Tyson, Ltd., 244 AD3d 825, 248 N.Y.S.3d 231 [2nd Dept. 2025]).

In light of the foregoing, it is hereby

ORDERED, that the portion of Defendants' Motion seeking to dismiss Plaintiff's claims for negligent hiring, retention, and supervision as against Defendant M.-C. P. A. is DENIED; and it is further

ORDERED, that the portion of Defendants' Motion seeking to dismiss Plaintiff's claims for sexual harassment, gender discrimination, hostile work environment, and retaliation under New York State Human Rights Law as against Defendants is DENIED; and it is further

ORDERED, that the portion of Defendants' Motion seeking to dismiss Plaintiff's claims for negligence as against Defendant M.-C. P. A. is DENIED; and it is further

ORDERED, that the portion of Defendants' Motion seeking to dismiss Plaintiff's claims for negligence, and assault and battery as against Defendant G. is GRANTED; and it is further

ORDERED, that the portion of Defendants' Motion seeking to dismiss Plaintiff's claims for Medical Malpractice and Lack of Informed Consent as against the Defendants is GRANTED; and it is further

ORDERED, that all parties are to appear on October 13, 2026 at 9:15AM for purposes of a Settlement Conference.

The foregoing constitutes the Decision & Order of this Court.

Dated:August 14, 2026

New City, New York

E N T E R:

HON. DAVID FRIED, A.J.S.C.

STATE OF NEW YORK

COUNTY OF ROCKLAND

FOOTNOTES

1.   Irrespective of reference to the New York City Human Rights Law, the Court deems the cited authority informative and persuasive in its application to the within Motion.

David Fried, J.