KAPCHEK v. UNITED REFINING COMPANY INC

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

Ammie C. KAPCHEK, Plaintiff-Respondent, v. UNITED REFINING COMPANY, INC., United Refining Company of Pennsylvania, doing business as Kwik-Fill-Pulaski, New York, Defendants-Appellants, et al., Defendants.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Suzanne K. Lehman of Counsel), for Defendants-Appellants. Sugarman Law Firm, LLP, Syracuse (Amy M. Vanderlyke of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action seeking damages for sexual harassment pursuant to Executive Law § 296(1)(a).   Contrary to the contention of defendants-appellants (defendants), Supreme Court properly denied their motion seeking summary judgment dismissing the complaint against them inasmuch as they failed to establish their entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiff was employed by defendants as an assistant manager and on November 17, 2004 the 23-year-old plaintiff was assigned to work with 57-year-old defendant Gerald Azrie.   According to plaintiff's deposition testimony submitted by defendants in support of their motion, Azrie and his friend, defendant Kenneth Tuckey, repeatedly made vulgar comments to plaintiff, requested sexual favors from her, offered to pay her for sexual favors and touched plaintiff against her will.   We therefore conclude that defendants' own submissions raise a triable issue of fact whether the conduct of Azrie and Tuckey resulted in a hostile work environment, i.e., a workplace “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the terms and conditions of employment” (Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215 [internal quotation marks omitted];  see generally Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 326-327, 786 N.Y.S.2d 382, 819 N.E.2d 998).   Although defendants investigated the allegations, their submissions establish that no corrective actions were taken, and thus defendants failed to establish that the actions of Azrie and Tuckey were not condoned (see Vitale, 283 A.D.2d at 143-144, 727 N.Y.S.2d 215).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: