In Kouri v Eataly N.Y. LLC, No. 14538, 158476/14, 2021-00047, 2021 N.Y. Slip Op. 06044, 2021 WL 5113230 (N.Y.A.D. 1 Dept. Nov. 04, 2021), the court affirmed the denial of defendants’ motion for summary judgment on plaintiff’s claims arising from his ejection from Eataly.
As to plaintiff’s public accommodation discrimination claims asserted under the New York State Human Rights Law (N.Y. Exec. Law §§ 292, 296[a]) and the New York City Human Rights Law (N.Y.C. Admin. Code § 8–107[a][a]), the court explained:
Plaintiff asserts claims for discrimination in public accommodation based on sexual orientation. Defendants proffered a legitimate nondiscriminatory reason for removing plaintiff from Eataly (the dining facility owned and operated by Eataly N.Y. LLC and its affiliates) (collectively Eataly), namely, that he was belligerent and they perceived him to be threatening to staff and other customers. However, plaintiff testified that, both before and after the Eataly supervisor directed the security guards (the individual defendants employed by defendant AlliedBarton Security Services LLC) (collectively Allied) to escort him out, the guards repeatedly levelled vulgar, homophobic slurs at him. This testimony raises the issue of fact whether defendants’ proffered reason for ejecting plaintiff was pretextual and the real reason was his sexual orientation. Allied’s contentions notwithstanding, the stray remarks doctrine has no application here. Moreover, plaintiff testified that at least five homophobic epithets were directed at him in a span of little more than 10 minutes.
Since they are alleged to have acted jointly, the individual defendants’ alleged actions may give rise to aiding and abetting liability for discrimination. Moreover, issues of fact exist as to whether defendant Mena, who held the title of supervising security officer, had sufficient supervisory control that his actions could be imputed to the corporate employer.
The court also held that issues of fact concerning plaintiff’s claims for assault and battery, as well as negligent supervision, warranted denial of defendant’s motion for summary judgment on those claims.