Suriel v. Dominican Republic Educ.

• Decision Date: 23 June 2011
• Parties: PATRICIA SURIEL et al., Appellants,v.DOMINICAN REPUBLIC EDUCATION AND MENTORING PROJECT, INC., Also Known as Dream, et al., Respondents.(And Another Related Action.).
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1464
926 N.Y.S.2d 198
268 Ed. Law Rep. 937
2011 N.Y. Slip Op. 05384

PATRICIA SURIEL et al., Appellants,
v.
DOMINICAN REPUBLIC EDUCATION AND MENTORING PROJECT, INC., Also Known as Dream, et al., Respondents.(And Another Related Action.).

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

June 23, 2011.

[926 N.Y.S.2d 200]

Schlather, Stumbar, Parks & Salk, Ithaca (Raymond M. Schlather of counsel), for appellants.Kirkland & Ellis, L.L.P., New York City (Nathaniel Jacob Kritzer of counsel), for Dominican Republic Education and Mentoring Project, Inc., respondent.Sassani & Scheneck, P.C., Liverpool (Kathleen C. Sassani of counsel), for Michel Zaleski, respondent.Before: ROSE, J.P., MALONE JR., McCARTHY, GARRY and EGAN JR., JJ.GARRY, J.

[85 A.D.3d 1464] Appeal from an order of the Supreme Court (Mulvey, J.), entered June 30, 2010 in Tompkins County, which granted [85 A.D.3d 1465] defendants' motions for partial summary judgment dismissing plaintiffs' first, second and sixth causes of action.

Plaintiff Patricia Suriel began serving as executive director of defendant Dominican Republic Education and Mentoring Project, Inc. (hereinafter DREAM) in 2002. Suriel's father, plaintiff Edward Thorndike, served as DREAM's volunteer bookkeeper. Suriel's relationship with defendant Michel Zaleski, the president of DREAM and chair of its board of directors, soured in late 2008, shortly after she attempted to terminate DREAM's Dominican Director, Jonathan Wunderlich. Suriel was terminated in 2009, allegedly for insubordination, mismanagement and personal use of the organization's funds.

Plaintiffs commenced the present action alleging, among other things, that defendants violated the Human Rights Law ( see Executive Law § 290 et seq.) by subjecting Suriel to a sex-based hostile work environment and retaliating against her for taking steps to correct it. The complaint further alleged that defendants intentionally inflicted emotional distress upon plaintiffs. Following joinder of issue, defendants separately moved for partial summary judgment on those causes of action. Supreme Court granted the motions, and plaintiffs appeal.¹

We affirm. Initially, plaintiffs argue that the summary judgment motions should have been denied pending further discovery, but they fail to demonstrate how the discovery they seek would yield material evidence ( see CPLR 3212[f]; Beesmer v. Besicorp Dev., Inc., 72 A.D.3d 1460, 1461, 900 N.Y.S.2d 472 [2010] ). To the extent that plaintiffs made that showing as to further discovery regarding DREAM's finances, they have not shown how the discovery may reveal material facts within defendants' exclusive knowledge ( see Beesmer v. Besicorp Dev., Inc., 72 A.D.3d at 1461, 900 N.Y.S.2d 472). Indeed, the sought-after discovery includes a deposition of Thorndike, who is plainly not under defendants' control. Accordingly, we find no abuse of discretion in Supreme

[926 N.Y.S.2d 201]

Court's denial of plaintiffs' request to deny or delay defendants' motions ( see Gersten–Hillman Agency, Inc. v. Heyman, 68 A.D.3d 1284, 1288, 892 N.Y.S.2d 209 [2009] ).

Turning to the merits, as the party alleging gender discrimination, Suriel bore the initial burden of showing “that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or [85 A.D.3d 1466] other adverse action occurred under circumstances giving rise to an inference of discrimination” ( Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004]; see Singh v. State of N.Y. Off. of Real Prop. Servs., 40 A.D.3d 1354, 1355–1356, 837 N.Y.S.2d 378 [2007] ). The first three elements were not at issue here. As to the fourth, Suriel asserted that she was subjected to a hostile work environment as a result of sexual harassment. This claim required her to demonstrate that discriminatory “conduct occurred because of her sex” ( Alfano v. Costello, 294 F.3d 365, 374 [2d Cir.2002]; see Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–81, 118 S.Ct. 998, 140 L.Ed.2d 201 [1998]; Mauro v. Orville, 259 A.D.2d 89, 92, 697 N.Y.S.2d 704 [1999], lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d...