Baliva v. State Farm Mutual Auto. Ins.

• Decision Date: 28 September 2001
• Docket Number: 00-02968,4
• Parties: CHRISTINE BALIVA AND RINO BALIVA,STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND MAX J. VAN BENSCHOTEN, INDIVIDUALLY,(APPEAL NO. 2.) CA 00-02968. (Monroe Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

CHRISTINE BALIVA AND RINO BALIVA, PLAINTIFFS-APPELLANTS,

V

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND MAX J. VAN BENSCHOTEN, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.

(APPEAL NO. 2.)

CA 00-02968. (Monroe Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

September 28, 2001

PRESENT: PIGOTT, JR., P. J., PINE, WISNER, BURNS AND LAWTON, JJ.

Order unanimously affirmed without costs. Memorandum: 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; see generally, Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406), 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) 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; see, Fazio v Federal Express Corp., supra, at 260).

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), 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 [ED NY]; Lamar v Nynex Serv. Co., 891 F Supp 184, 185 [SD NY]). 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 US 17, 21) 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, lv denied 94 N.Y.2d 759). "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...