BALIVA v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

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Supreme Court, Appellate Division, Fourth Department, New York.

Christine BALIVA and Rino Baliva, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Max J. Van Benschoten, Individually, Defendants-Respondents.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P. J., PINE, WISNER, BURNS and LAWTON, JJ. Paul F. Shanahan, for plaintiffs-appellants. Eugene D. Ulterino, for defendant-respondent State Farm Mutual Automobile Insurance Company. Michael R. Wolford, for defendant-respondent Max J. Van Benschoten.

Christine Baliva (plaintiff) began her employment with defendant State Farm Mutual Automobile Insurance Company (State Farm) on February 17, 1997.   On March 5, 1997, she was assigned to work for defendant Max J. Van Benschoten on a temporary basis.   Plaintiff collapsed at work on March 14, 1997, was taken to the hospital and was eventually terminated when her unpaid sick leave expired in September.   At the time she was medically unable to return to work.   Plaintiffs commenced this action alleging, inter alia, in an amended complaint that Van Benschoten sexually harassed plaintiff and that State Farm “permitted, condoned * * * and ratified” Van Benschoten's behavior.   Specifically, plaintiff alleged that Van Benschoten, over a period of approximately 10 days, may have touched plaintiff's shoulder several times, screamed at plaintiff about work, invaded her personal space, made one comment with respect to sexual orientation and glanced at her in a sexual manner “one or two” times.

 During the discovery process, plaintiffs moved for disclosure of records regarding payments made by State Farm to prospective expert witnesses.   Supreme Court properly limited that discovery to information regarding the amount paid to defendants' experts in connection with services rendered in this case.  “It is well settled that the court has broad discretion over the discovery process” (Baliva v. State Farm Mut. Auto. Ins. Co., 275 A.D.2d 1030, 1031, 713 N.Y.S.2d 376;  see generally, Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430), and here the court did not abuse its discretion in denying that part of plaintiffs' motion seeking financial records unrelated to the instant litigation.   Records regarding previous unrelated payments to experts constitute material that is “ irrelevant and immaterial to the underlying facts at issue in the case” (Fazio v. Federal Express Corp., 272 A.D.2d 259, 260, 708 N.Y.S.2d 71) and is sought solely for the purpose of “gaining information to impeach the general credibility of [the experts]” (Pernice v. Devora, 238 A.D.2d 558, 559, 657 N.Y.S.2d 70;  see, Fazio v. Federal Express Corp., supra, at 260, 708 N.Y.S.2d 71).

 We further conclude that the court properly granted defendants' motions seeking summary judgment dismissing the amended complaint.   Viewing the evidence in the light most favorable to plaintiffs (see, Dix v. Pines Hotel, 188 A.D.2d 1007, 592 N.Y.S.2d 993), we conclude that the conduct complained of does not rise to the level contemplated by Executive Law § 296 (see, e.g., Lucas v. South Nassau Communities Hosp., 54 F Supp 2d 141, 147-149 [E.D.N.Y.];  Lamar v. Nynex Serv. Co., 891 F.Supp. 184, 185 [SDNY] ).   Thus, defendants are entitled to summary judgment dismissing the cause of action alleging Van Benschoten's sexual harassment of plaintiff with State Farm's knowledge and condonation.   In order to establish a hostile work environment, plaintiffs must establish that the conduct complained of was “severe or pervasive” (Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295) and was based on plaintiff's gender, not plaintiff's sexual activity, liaisons or attractions (see, Mauro v. Orville, 259 A.D.2d 89, 92, 697 N.Y.S.2d 704, lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483).  “Harmless body contact of an inadvertent non-sexual nature falls outside the broadest parameters of sexual harassment” (Lucas v. South Nassau Communities Hosp., supra, at 147) and, “[g]enerally, isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment” (Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 51, 642 N.Y.S.2d 739, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502).

 We further conclude that the alleged conduct of Van Benschoten and State Farm is insufficient as a matter of law to support the cause of action alleging intentional infliction of emotional distress (see, Foley v. Mobil Chem. Co., 214 A.D.2d 1003, 1005, 626 N.Y.S.2d 906;  see also, Jaffe v. National League for Nursing, 222 A.D.2d 233, 635 N.Y.S.2d 9).   In addition, such a cause of action does not lie where, as here, “ ‘the conduct complained of falls well within the ambit of other traditional tort liability’ [emphasis supplied]” (Sweeney v. Prisoners' Legal Servs. of N. Y., 146 A.D.2d 1, 7, 538 N.Y.S.2d 370, lv. dismissed 74 N.Y.2d 842, 546 N.Y.S.2d 558, 545 N.E.2d 872, quoting Fischer v. Maloney, 43 N.Y.2d 553, 558, 402 N.Y.S.2d 991, 373 N.E.2d 1215;  see, McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 A.D.2d 269, 270, 682 N.Y.S.2d 167, appeal dismissed 93 N.Y.2d 919, 691 N.Y.S.2d 383, 713 N.E.2d 418, lv. denied 94 N.Y.2d 753, 700 N.Y.S.2d 427, 722 N.E.2d 507;  see also, Rozanski v. Fitch, 113 A.D.2d 1010, 494 N.Y.S.2d 576;  cf., Murphy v. ERA United Realty, 251 A.D.2d 469, 473-474, 674 N.Y.S.2d 415).

 With respect to the cause of action for retaliatory termination, defendants established a “legitimate, non-retaliatory” reason for plaintiff's termination and plaintiffs failed to raise a triable issue of fact whether the reason for the termination was pretextual (Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768;  see, Pace v. Ogden Servs. Corp., 257 A.D.2d 101, 104, 692 N.Y.S.2d 220).   Plaintiffs failed to brief any issues with respect to the court's dismissal of the third, fourth and sixth causes of action and therefore have abandoned those issues (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).   Based on our resolution of defendants' motions seeking summary judgment, there is no need to address the contention of plaintiffs that the court erred in denying their cross motion seeking summary judgment striking defendants' affirmative defenses.

Order unanimously affirmed without costs.

MEMORANDUM: