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Kapchek v. United Refining Co.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

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.

Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered January 30, 2008 in an action for sexual harassment pursuant to Executive Law § 296 (1) (a). The order denied the motion of defendants United Refining Company, Inc. and United Refining Company of Pennsylvania, doing business as Kwik-Fill-Pulaski, New York, for summary judgment dismissing the complaint against them.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ.

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

Memorandum

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 NY2d 557, 562). 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 AD2d 141, 143 [internal quotation marks omitted]; see generally Forrest v Jewish Guild for the Blind, 3 NY3d 295, 326-327). 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 AD2d at 143-144).

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