In Di Mauro v. Equinox Holdings, Inc., No. 162189/2019, 2021 WL 698917, 2021 N.Y. Slip Op. 30498(U), 2–3 (N.Y. Sup Ct, New York County Feb. 22, 2021), the court, inter alia, dismissed plaintiff’s claims of public accommodation discrimination against Equinox Holdings.
The court summarized the facts as follows:
This action arises out of an altercation that occurred at the gym on the afternoon of November 14, 2019. The plaintiff arrived at the club for a workout and proceeded to enter the men’s locker room in order to use the bathroom. He claims that while he was in the bathroom, defendant Montalvo took out his cellphone and began taking pictures of the plaintiff by holding his phone underneath the bathroom stall. The plaintiff confronted Montalvo and demanded that he accompany the plaintiff to the front desk in order to file a complaint.
As they walked over to the front desk, the plaintiff claims that he observed Montalvo attempting to delete the images of the plaintiff from his cell phone and flee the area. Another confrontation ensued and the plaintiff claims Montalvo assaulted him, causing him to sustain **2 lacerations and other physical injuries. Montalvo was subsequently arrested and charged with assault.
When the plaintiff returned to the club approximately four days later, he was informed by defendant Colligan, as well as by other Blink employees, that his membership had been terminated. According to the complaint, the stated reason for the termination was that the plaintiff’s actions had the effect of “putting members in a dangerous position.” The plaintiff was advised by Colligan that he should not have reacted to or done anything about the assault or harassment that was perpetuated against him by Montalvo. The plaintiff subsequently learned that several of the club’s employees were rejoicing over the plaintiff’s membership termination, referring to him as “the little bitch with the red shoes.”
Plaintiff sued the gym, asserting, inter alia, that the gym discriminated against him in violation of the New York State and City Human Rights Laws “because of his gender and for being the victim of sexual harassment and assault” when it terminated his membership.
From the decision:
In his complaint, the plaintiff asserts causes of action under the Executive Law, the New York City Human Rights Law, and the New York State Human Rights Law, alleging that Blink discriminated against him “because of his gender and for being the victim of sexual harassment and assault” when it terminated his membership. He also asserts negligence claims against Blink alleging that Blink had a duty to conduct a full and fair investigation concerning the alleged assault and harassment and the plaintiff’s confrontation with Montalvo prior to terminating his membership. The plaintiff also asserts that Blink should have done more to protect him from Montalvo’s assault. Finally, the plaintiff asserts a claim for defamation against Blink and Colligan. Blink and Colligan have moved to dismiss the complaint on the ground that it fails to state a cause of action against them.
Defendants maintain that the plaintiff cannot state a claim for discrimination based on his purported status as a victim of sexual harassment or assault because, in the context of public accommodations such as gyms, sexual harassment or assault victims are not designated as a **3 protected class under either the City Human Rights Law or the State Human Rights Law. Although the City Human Rights Law does provide certain protections for “victim[s] of sex offenses or stalking” in the employment and housing contexts, it does not extend those protections to claims for discrimination in a fitness club or in any other place of public accommodation (see N.Y.C. Admin. Code § 8-107 [limiting protected classes in public accommodation claims to “race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service or alienage or citizenship status.”]; N.Y.C. Admin. Code § 8-107.1 [limiting the protections afforded to “victim[s] of sex offenses or stalking” to the employment and housing contexts]). Similarly, the State Human Rights Law does not provide protection to assault or sexual harassment victims in the context of public accommodations (see N.Y. Exec. Law § 296[a] [limiting protected classes in public accommodation claims to “race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status”]).
Since the plaintiff’s claims of discrimination based on his purported status as a victim of sexual harassment or sexual assault are not recognized under New York Law, they must be dismissed. The plaintiff’s citation to Vasquez v Manhattan Physician Group is unavailing (see Vasquez v Manhattan Physician Group, 2018 WL 587135 [Sup. Ct., N.Y. County, January 29, 2018]). In Vasquez, the court found that the defendant medical office could be held liable under the City Human Rights Law because one of its employees (a doctor) allegedly sexually harassed one of its patients during a medical exam (id. at * 4-5). Here, by contrast, the plaintiff claims that he was assaulted and/or harassed by another customer of the gym. There is no legal basis to conclude that either the State Human Rights Law or the City Human Rights Law provides protection to a customer of a public accommodation who is sexually harassed or assaulted by **4 another customer (see Alexander v Equinox Holdings LLC, 2019 WL 4643772, *3 [Sup. Ct., N.Y. County, September 18, 2019]. Accordingly, that claim is dismissed.