GLENYS CONTRERAS GLENYS VALVO CONTRAS v. Minisceongo Yacht Club, Inc., Defendant. (2026)

The following papers were read and considered as to Defendant's Notice of Motion pursuant to Civil Practice Law and Rules § 3212 for an Order (1) granting summary judgment in favor of Defendant and against Plaintiff , pursuant to Civil Practice Law and Rules § 3212, on the grounds that there are no triable issues of material fact and Defendant is entitled to judgment as a matter of law; (2) dismissing the Verified Complaint of Plaintiffs in its entirety with prejudice; and (3) for such other, further, and different relief as this Court deems just and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3)¹ /Affirmation of Robert Tamagny in Support of Motion for Summary Judgment/Exhibits A-F  ² /Memorandum of

Law in Support 1

Affirmation of Barry D. Haberman, Esq. in Opposition to Defendant's Motion for Summary Judgment/Exhibits 1-4/Declaration of Christopher J. Valvo/

Declaration of Glenys Contreras  ³ /Statement of Material Facts/Memorandum of Law in Opposition 2

Memorandum of Law in Reply 3

Upon the foregoing papers, the motion is granted in part and denied in part, as set forth below.

FACTS

The Minisceongo Yacht Club, Inc., (hereinafter "the Club") is a not-for-profit corporation that operates a marina at 83 Grassy Point Road, Stony Point. See Tamagny Aff. ¶ 3; Verified Answer ¶ 3. Plaintiff Christopher J. Valvo, a licensed plumber, was admitted to the Defendant club in 2009 or January 2010 and kept his boat, the Glenys Lynne, in a Club slip through the 2020 boating season. See Tamagny Aff. ¶ 4; See also Valvo Decl. ¶¶ 4, 8 and Ex. I. Plaintiff Glenys Contreras, sued as "Glenys Contras," is his wife. She states that she was born in the Dominican Republic, identifies as Hispanic, and speaks English with an accent. See Contreras Decl. ¶¶ 2, 4—6.

For purposes of this motion, Plaintiffs do not dispute that Valvo held an Associate membership and instead contend that their Associate status is not material because Article III, § 2(D)(9) requires Board action to terminate an Associate membership and the Defendant's invoked Article XXII § 3 for the termination of Plaintiffs. See NYSCEF Doc. No. 48, Statement of Facts ¶¶ 19—22. Under the Club's Constitution and By-Laws, adopted March 13, 2020 (hereinafter the By-Laws), an Associate membership "is an annual membership which must be extended or terminated annually by action of the Board of Directors." See NYSCEF Doc. No. 36, Exhibit F, By-Laws Art III, § 2 [D] [9]; See id. § 5 [B]. Commodore Tamagny (hereinafter "Tamagny") testified that Associate members receive an annual letter asking for a $500 deposit to secure their slip for the following season. See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 35:8—12.

By letter dated November 11, 2020, the Club advised Valvo that his membership would not be renewed because the deposit had not been paid. See NYSCEF Doc. No.47, Contreras Decl. ¶ 27; See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 35:13—36:7. Contreras testified at her deposition that she called the Club on receiving the letter and sent a check. See NYSCEF Doc. No. 32, Exhibit B, Contreras Tr. 56:2—12. Valvo testified that the check was sent but never cashed (see NYSCEF Doc. No.31, Exhibit A, Valvo Tr. 57:3—19), while also agreeing that the payment may have been late because the office mail carrier had died during the COVID-19 pandemic. See id. 58:15—59:6. A letter dated December 11, 2020, and a later Board letter, adhered to the decision. See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 36:13—38:19. None of these letters are annexed to the motion or to Plaintiff's opposition.

Plaintiffs commenced this action on July 15, 2021, with filing of a Summons and Verified Complaint. See NYSCEF Doc. No.1 The first cause of action alleges that the non-renewal was motivated by the national origin, race (skin color) and "creed" of Contreras and her children, in violation of the New York State Human Rights Law (Executive Law § 290 et seq.). See NYSCEF Doc. No.1, Verified Complaint ¶¶ 17—24. The second alleges that the Club breached its by-laws by terminating the membership without the expulsion procedure of Article III, § 5 (A) or the registered-mail "notice of delinquency" of Article XXII, § 3. See id. ¶¶ 25—41. The Club answered and asserted, among other defenses, that it is a private club excluded from the Human Rights Law. See NYSCEF Doc. No. 3, Verified Answer ¶ 43.

Depositions of both Plaintiffs and of Tamagny, as the Club's designated witness, were held on March 11-12, 2026. See NYSCEF Doc. Nos. 31, 32 and 33. Despite this matter having been pending for over five (5) years no note of issue has been filed. Plaintiffs represent that their August 3, 2022 document demands, including Board, Membership Committee and general-meeting minutes, membership lists and prior discrimination complaints, remain unanswered, and that they moved on April 15, 2025, under Civil Practice Law and Rules §§ 3124 and 3126. See Counterstatement ¶¶ III.18—22; NYSCEF Doc. Nos. 8—19). Plaintiff filed a motion to compel on April 15, 2025 (see NYSCEF Doc. Nos. 8-19) which was subsequently withdrawn by consent of both parties on May 21, 2025. See NYSCEF Doc. No. 21.

The Club moves for summary judgment dismissing the complaint in its entirety. On the Human Rights Law claim, it argues that plaintiffs identify no discriminatory statement by any officer or director, no decisionmaker, and no similarly situated member who was treated better. It characterizes the three (3) incidents Contreras described at her deposition, a slip-reassignment dispute, a remark that her daughter was "too pretty" to dock the boat, and the non-renewal itself, as insufficient to support an inference of discrimination. See NYSCEF Doc. No. 37, Memorandum of Law, Point I. Also, it is noted that neither of the Plaintiffs filed an administrative charge.

On the contract claim, the Club argues that the expulsion procedure of Article III, § 5 (A) was never triggered because the membership lapsed for nonpayment, that Article XXII, § 3 "govern[s] precisely this situation," and that "[t]he Club sent the required notice" in the November 11, 2020 letter. See NYSCEF Doc. No. 37, Memorandum of Law, Point II. It further argues that Contreras was not a party to the membership contract and lacks standing to sue on it. See id., Point III.

Plaintiffs do not oppose dismissal of the contract claim as to Contreras. See NYSCEF Doc. No. 49, Point IV. Instead they argue that the Club has not made a prima facie showing because (i) the termination letter, rosters and delinquency notices on which the Club relies are not in the record; (ii) Tamagny lacks personal knowledge of the 2020 decision; (iii) the By-Laws required Board action to terminate an Associate membership and, under the provision the Club invokes, registered-mail notice with a thirty-day cure period, none of which is shown; and (iv) payment is disputed. On the discrimination claim, they point to the Club's departure from its own procedures, a second, never-communicated reason first articulated in litigation, Contreras's testimony that she saw no other people of color at the Club in eleven seasons, and the designated witness's inability to identify any Hispanic member.

In reply, the Club relies on Reichman v City of New York (179 AD3d 1115 [2d Dept 2020]), and argues for the first time that Plaintiffs cannot recover because they did not themselves perform, and that Plaintiffs have since sold their boat.

APPLICABLE LAW

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issue of fact. See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. The motion must be supported by an affidavit "by a person having knowledge of the facts." Civil Practice Law and Rules § 3212 [b]). Failure to make that showing requires denial regardless of the sufficiency of the opposing papers. See Winegrad, 64 NY2d at 853. Only if the showing is made does the burden shift to the opponent to produce admissible evidence raising a triable issue. See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. The evidence is viewed in the light most favorable to the nonmovant (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), and the court's function is issue-finding, not issue-determination. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957].

The Club's reliance on the "utterly refutes" standard of Goshen v Mutual Life Ins. Co. of NY (98 NY2d 314, 326 [2002]) is misplaced. That standard governs dismissal on documentary evidence under Civil Practice Law and Rules § 3211 (a) (1). This motion is made under Civil Practice Law and Rules § 3212, as the notice of motion states.

I. Preliminary Matters

A. Statement of material facts. None was required. Former 22 NYCRR 202.8-g was repealed effective July 7, 2025. See Admin Order of Chief Admin Judge of Cts AO/103/2025. The court has considered Plaintiffs' counterstatement only as an aid to locating record support.

B. Timeliness of the opposition.The Club complains that the opposition was late. Plaintiffs' counsel affirms that it was filed on August 10, 2026, with defense counsel's consent (see NYSCEF Doc. No. 41, Haberman Aff. ¶ 3), and the Club replied on the merits. The court has considered the opposition. See Civil Practice Law and Rules § 2004, 2214 [c].

C. Arguments first raised in reply. "The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion." Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]; See Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 827 [2d Dept 2008]. The court therefore does not consider the Club's new contentions that Plaintiffs' own nonperformance defeats the contract claim and that Plaintiffs have sold their boat. The latter assertion is also unsupported by any record citation.

D. Matters outside the record.Several documents described in the papers are not before the court: the November 11, 2020, and December 11, 2020 letters, the later Board letter, the membership rosters, any delinquency notice, and the Club minutes referred to in paragraph 29 of the Valvo Declaration. The court has relied only on the deposition testimony describing them, to the extent that testimony is competent.

II. Breach of Contract

A. Contreras. Plaintiffs do not oppose dismissal of the second cause of action as asserted by Contreras, who was not a party to the membership contract. See NYSCEF Doc. No. 49, Opp. Memo, Point IV; See CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d 720 [2d Dept 2009]. That branch of the motion is granted.

B. Valvo.A club's constitution and by-laws form a contract between the club and its members, and a court reviewing a membership decision asks whether the club acted under its rules and administered them fairly. See Matter of Marandino v Westchester Country Club, Inc., 33 AD3d 800, 800—801 [2d Dept 2006]; Tedeschi v Wagner Coll., 49 NY2d 652, 660 [1980]. The Club does not dispute that the By-Laws govern. See NYSCEF Doc. No. 30, Tamagny Aff. ¶ 16.

1. Article III, § 5 (A). The complaint relies in part on the expulsion procedure of Article III, § 5 (A): written charges, a summons to a regular meeting on thirty (30) days' notice, and a two-thirds secret-ballot vote. See NYSCEF Doc. No. 1, Verified Complaint ¶¶ 28—31. By its terms that section applies to "[a] Regular, Life or Social member." Plaintiffs concede Associate status for purposes of this motion (see NYSCEF Doc. No. 48, Counterstatement ¶¶ 19—22) and do not argue that § 5 (A) applies. The Club is entitled to summary judgment to the extent the second cause of action rests on that provision.

2. Board Action Under Article III, §§ 2 (D) (9) and 5 (B). The Club has not shown, however, that it terminated the membership in the manner its By-Laws prescribe for Associate members. Article III, § 5 (B) provides that "[a]n Associate member is subject to termination as described under Article III, Section 2, Item D-9," which in turn states that Associate membership "must be extended or terminated annually by action of the Board of Directors." The By-Laws thus give the Board wide discretion whether to renew. But they commit that decision to the Board.

The Club has submitted no Board minutes, resolution, or testimony from anyone who participated in the decision. Its sole affiant states that his familiarity with the matter rests on "review of the file and the proceedings conducted to date, including the depositions of all parties." See NYSCEF Doc. No. 30, Tamagny Aff. ¶ 1. He became Commodore in January 2026. See id. ¶ 6. At his deposition, he testified that he asked the Treasurer "to refresh my memory as to exactly why he was not invited back," (NYSCEF Doc. No. 33, Tamagny Tr. 20:2—4), and agreed that both reasons for the decision were "based upon information that was relayed to" him. Id. 34:7—14. His reference to a Board letter adhering to an "earlier decision" rests on a letter that is not in the record and whose date he doubted. See id. 37:25—38:15. That is not proof by a person with knowledge of the facts. See Civil Practice Law and Rules § 3212 [b]. Whether the Board acted, and when, remains an open question of fact.

3. Article XXII, § 3. The Club also relies on Article XXII, § 3, asserting that it "govern[s] precisely this situation" and that the November 11, 2020 letter was "the required notice." NYSCEF Doc. No. 37, Memo of Law, Point II [A]. That section requires the Treasurer to send by registered mail a "notice of delinquency" stating that the member's name will be stricken if arrears are not paid within thirty days, with posting on the Club bulletin board for thirty days if the registered letter is not delivered. The Club has not submitted the letter, any proof of registered or certified mailing, or any evidence of posting. Its own witness described the letter as announcing that Valvo would not be invited back and agreed that it "only mentions non-payment." See NYSCEF Doc. No. 33, Tamagny Tr. 35:8—36:7. A letter announcing a completed non-renewal is not, on its face, a notice affording thirty days to cure.

The court need not decide whether § 3, which by its terms addresses "dues and/or assessments" in default for three months, applies to a slip deposit at all. Plaintiffs note that annual dues are $150, due January 1 (see NYSCEF Doc. No. 36, Exhibits F, By-Laws art XXII, § 2), and that nothing in the By-Laws before the court mentions the $500 deposit. If § 3 applies, the Club has not shown compliance with it. If it does not, the Club must rely on Board action under article III, which it has not established.

4. Nonpayment. The Club argues that Plaintiffs conceded nonpayment. The record is less clear. Contreras testified only that she did not handle payments and did not know the October 1 date. See NYSCEF Doc. No. 32, Exhibit B, Contreras Tr. 40:21—42:8. Valvo testified that a check was sent and never cashed (see NSYCEF Doc. No. 31, Exhibit A, Valvo Tr. 57:3—19), although he also agreed that payment may have been late. See id. 58:15—59:6; see id. 70:3—9. Even if the deposit was late, that fact would not establish, as a matter of law, that the Club ended the membership by the procedure its By-Laws require.

5. Pleading. That the complaint does not cite Article III, § 2 (D) (9) does not change the result. The complaint alleges that the termination violated the By-Laws (see NSYCEF Doc. No. 1, Verified Complaint ¶¶ 35, 38), and a party may defeat summary judgment on an unpleaded theory that the proof supports. See Alvord & Swift v Stewart M. Muller Constr. Co., 46 NY2d 276, 281 [1978].

The branch of the motion seeking dismissal of Valvo's contract claim is otherwise DENIED.

III. Human Rights Law

A. Governing Principles. Executive Law § 296 (2) (a) makes it unlawful for the owner or manager of a place of public accommodation, because of the race, creed, color or national origin of any person, to refuse, withhold or deny the accommodations, advantages, facilities or privileges of the place. The Human Rights Law is construed liberally to accomplish its remedial purposes, "regardless of whether federal civil rights laws . . . have been so construed." Executive Law § 300, as amended by L 2019, ch 160). The conduct at issue post-dates that amendment.

A defendant moving for summary judgment on a Human Rights Law discrimination claim "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 a triable issue of fact as to whether the explanations were pretextual." Reichman v City of New York, 179 AD3d 1115, 1117 [2d Dept 2020] [internal quotation marks omitted]; See Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004].

The four-element test the Club attributes to Matter of Cahill v Rosa (89 NY2d 14 [1996]), including a required comparator, does not appear in that decision. Cahill addressed whether dental offices are places of public accommodation and who bears the burden of proving the "distinctly private" exemption. See id. at 20—22. The Club pleaded that it is a private club excluded from the statute (see NYSCEF Doc. No. 3,Verified Answer ¶ 43) but has not moved on that defense, and the court does not reach it. Nor does the absence of an administrative charge matter. Executive Law § 297 (9) permits a person claiming to be aggrieved to sue directly in court.

B. The Club's Prima Facie Showing. The Club's stated reason is nonpayment of the slip deposit. It is undisputed that the November 11, 2020, letter gave that reason. See NYSCEF Doc. No. 32, Exhibit B, Contreras Decl. ¶ 27; Tamagny Tr. 36:2—3. That establishes what the Club told Plaintiffs. It does not establish, through a person with knowledge, who made the decision or why. As shown above, the Club offers no testimony from any director or officer who took part, and no Board record.

The Club's own witness also gave a broader account. He testified that the decision rested on two grounds: the missed deposit and "problems we had with his attitude and his boat." See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 20:17—22; 34:7—10; See NYSCEF Doc. No. 30, Tamagny Aff. ¶ 13. He conceded that the second ground appears in none of the Club's letters and that he does not know whether it was ever communicated to Valvo." See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 35:13—36:7; 37:3—12; 38:16—39:5. An employer's or proprietor's shifting or inconsistent explanations for an adverse action can support an inference of pretext. See Ferrante v American Lung Assn., 90 NY2d 623, 629—630 [1997]. Here the movant's own evidence presents two accounts and leaves the source of both unexplained.

On this record the Club has not eliminated triable issues as to whether its stated reason was the actual reason for the decision.

C. Plaintiffs' Proof. The Club argues alternatively that Plaintiffs cannot show circumstances supporting an inference of discrimination. Contreras herself understood the remark that her daughter was "too pretty" to dock the boat as a comment about gender, made by a member who was not an officer or director. See NYSCEF Doc. No. 32, Exhibit B, Contreras Tr. 49:11—51:13; Contreras Decl. ¶¶ 22—23. Valvo's suggestion that his daughter's friends' sexual orientation played a role is not pleaded and concerns a characteristic not alleged in the complaint. See NYSCEF Doc. No. 31, Exhibit A, Valvo Tr. 70:16—71:14. The slip dispute cannot be dated, and Contreras cannot identify the person involved. See NYSCEF Doc. No. 32, Exhibit B, Contreras Tr. 46:14—47:14. Neither Plaintiff identifies a decisionmaker or a similarly situated member who was treated more favorably.

Other evidence, however, viewed most favorably to Plaintiffs, permits a contrary inference:

• Contreras, who self identifies as Hispanic, was born in the Dominican Republic and speaks English with an accent, testified that in eleven seasons she saw no other people of color at the Club apart from herself and her children. See NYSCEF Doc. 32, Exhibit B, Contreras Tr. 44:18—45:25; See NYSCEF Doc. No.47, Contreras Decl. ¶¶ 4—6, 25—26.

• The Club's designated witness, examined on the membership rosters for 2015 through 2018, could not identify a single member of Hispanic origin in any of those years. See NYSCEF Doc. No. 33, Exhibit C, Tamagny Tr. 41:18—47:6.

• The Club has not shown that it followed its own procedure for terminating an Associate membership, and it now advances a second reason that was never stated to the member.

• Contreras testified that she raised her ethnicity directly with Club representatives during the slip dispute and asked whether the move was because the boat bore her name. See NYSCEF Doc. No. 32, Exhibit B, Contreras Tr. 45:16—21.

A comparator is one way, not the only way, to raise an inference of discrimination. The Club's contrary authorities were decided on the pleadings in the employment context. See Askin v Department of Educ. of the City of NY, 110 AD3d 621 [1st Dept 2013]; see also Whitfield-Ortiz v Department of Educ. of City of NY, 116 AD3d 580 [1st Dept 2014]. Moreover, the facts that would identify the decision-makers and show how other members in arrears were treated lie within the Club's control.

Whether Plaintiffs can ultimately prove that ethnicity or national origin motivated the decision is for the trier of fact. Resolving that question here would require weighing credibility and choosing among competing inferences, which the court may not do on this motion.

D. Civil Practice Law and Rules § 3212 (f). Denial is warranted on an independent ground. No note of issue has been filed. Plaintiffs demanded the Club's Board, Membership Committee and general-meeting minutes, membership lists and prior discrimination complaints on August 3, 2022, followed up in 2022 and 2024, and moved for relief in April 2025. See NYSCEF Doc. No. 48, Counterstatement ¶¶ III.18—21; Exs. 2—4. The Club does not claim to have produced those records. They bear directly on who made the decision, whether the Board acted, and why. Where "facts essential to justify opposition may exist but cannot then be stated," the court may deny the motion. See Civil Practice Law and Rules § 3212 [f].

The branch of the motion seeking dismissal of the first cause of action is DENIED as to both Plaintiffs. The Club did not argue that Contreras lacks standing under the Human Rights Law, and the court does not reach that question.

Accordingly, it is hereby,

ORDERED that the motion of defendant Minisceongo Yacht Club, Inc. for summary judgment (Motion Seq. No. 3) is granted to the extent that (i) the second cause of action is dismissed insofar as asserted by Plaintiff Glenys Contreras, sued herein as Glenys Contras a/k/a Glenys Valvo Contras, and (ii) the second cause of action is dismissed insofar as asserted by plaintiff Christopher J. Valvo to the extent it is predicated upon Article III, § 5 (A) of Defendant's Constitution and By-Laws; and it is further

ORDERED that the motion is otherwise denied; and it is further

ORDERED that counsel shall appear for a status conference on November 24, 2026, at 10:30 a.m. in Part 3; and it is further

ORDERED that defendant shall serve a copy of this Decision and Order with notice of entry upon Plaintiffs within ten (10) days of entry.

The foregoing constitutes the Decision and Order of the court as to Motion Seq. No. 3.

Dated: October 28, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C.

FOOTNOTES

1.   Defendant initially filed the instant motion with a Notice of Motion for a motion dismiss that was assigned Sequence No. 2 (NYSCEF Doc. No. 29). The document was returned by the Rockland County Clerk as it was filed in error, the Defendant's application was meant to be for summary judgment (see basis for document return). Plaintiff filed a second document titled "Notice of Motion" and assigned it Seq. No. 3. See NYSCEF Doc. No. 38.

2.   Defendant has included portions of the depositions conducted of both Plaintiffs and Robert Tamagny, as the representative of Defendant. None of the transcripts are complete and instead they include only those portions that Defendant determined were "relevant."

3.   Plaintiff indicates that AI was used to review the depositions of the Plaintiffs and create the drafts of each of the declarations signed by the parties, in drafting the section titled "Statements" in the Affirmation of Barry Haberman, Esq. and to organize the Memorandum of Law submitted. See NYSCEF Doc. No.41, ¶ 9. Plaintiff's counsel provided the required 22 NYCRR 161.2 certification regarding fabricated and fictitious content. See id at ¶ 10.

John P. Collins, Jr., J.