The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 15, 16 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this motion to/for DISMISSAL.

In this employment discrimination action, plaintiff Anthere Motayne asserts claims under the New York State Human Rights Law (hereinafter, "the NYSHRL," codified as the New York State Executive Law §296), the New York City Human Rights Law ("NYCHRL," codified as New York City Administrative Code §8-101), and New York Labor Law ("NYLL") §215, for alleged discrimination based on her race, gender, age, and disability. In sum and substance, she alleges defendants Specialty Food Association, Inc's ("SFA") and Leo Squatrito, a company Vice President, terminated her employment based on the above prohibited grounds, subjected [*2]her to a hostile work environment, and retaliated against her for making complaints to their human resources department. To comply with notice requirements, plaintiff served a copy of the complaint upon the New York City Commission of Human Rights and the Corporation Counsel of the City of New York in accordance with New York City Administrative Code §8- 502(c).

In motion sequences 001 and 002, SFA and Squatrito, respectively, move pre-answer to dismiss this action pursuant to CPLR §3211 (a)(1), (a)(5), and (a)(7).^[FN1] Plaintiff has interposed an opposition to both applications. With respect to MS 002, plaintiff concedes that she did not serve the summons and complaint on Squatrito within CPLR 306-b's 120-day timeframe, but cross-moves for an extension of time and for the complaint to be deemed timely served nunc pro tunc. For the following reasons, defendants' motion is granted in part, and plaintiff's cross-motion is denied.

Plaintiff—a 53-year-old African American woman with vision impairment—alleges that she began her 27-year career with SFA in or around 1996 but that, in early 2020, defendant Leo Squatrito (her male supervisor), Russell Kolody, and Hellen Bayer (the last two being non-parties) began discriminating against and/or harassing her based on her race, gender, age, and/or disability, which, ultimately led to her wrongful termination in August 2020. It appears that plaintiff first reported directly to Squatrito, the company's Vice President of New Membership Development in or around January 2020 (NYSCEF doc. no. 1 at ¶37, complaint), at which time he began "harassing and verbally abusing" her (id. at ¶ 39). For example, in March 2020, he allegedly stated to her, "I know other Black women and they speak much clearer than you." (Id. at ¶41.) On other occasions, he allegedly mocked plaintiff's vision impairment by stating, "Anthere, I don't know why they hired you because you can't see" (before purportedly denying her accommodation request for a special computer screen), "Here comes blind-y!," and "You need thicker glasses, the person who hired you was stupid." (Id. at ¶¶61-64.) Thereafter, plaintiff avers that Squatrito relieved her of certain job responsibilities and gave them to Kolody (id. at ¶¶53-56) and made clear his intent to terminate her (id. at ¶¶90, 96-97).

On August 2, 2020, SFA notified plaintiff of her termination, citing "budgetary challenges" (id. at 98), and informed her that her role as New Member Product Specialist was being "completely eliminated" because the company could not sustain paying her any longer (id. at ¶100.) However, according to her, SFA hired Kolody, a white, non-disabled male with less experience, to take her former position and perform the same work, despite the pretext of giving him the title Member Qualification Associate. (Id. at ¶¶101-102.) Further, plaintiff alleges that, around this time, SFA reduced the number of individuals in its employ, but that the proffered reason—challenges resulting from the COVID-19 pandemic—was pretextual and disproportionally impacted older and/or African American employees. (Id. at 4.) Out of 58 SFA employees, 17 were terminated, of which 10 were over the age of 40, or 60%. (Id.)

Lastly, plaintiff alleges that she made numerous complaints to, among others, SFA's Human Resource department, SFA Presidents Phil Kafarakis and Bill Lynch, and VP of HR Lisa [*3]Gauchey, none of whom reprimanded Squartrito, Kolody, or Bayer. Plaintiff alleges, then, that her termination was not only the product of overt discrimination but also in retaliation for her numerous complaints.

In August 2023, plaintiff commenced this action and interposed twelve causes of action. Causes of Action (1) and (2) assert race-based disparate-treatment violations of the NYSHRL and NYCHRL for denying her equitable compensation compared to similarly situated coworkers, terminating her employment based on her race, and the disparate impact that SFA's reduction in its workforce had on African Americans; Cause of Action (3) asserts sex-based discrimination on grounds similar to those described above; Causes of Action (4) and (5) are identical to (1) and (2), except that the discriminatory basis is plaintiff's age as opposed to race; Causes of Action (6) and (7) are disability-based claims, including for SFA's failure to reasonably accommodate her vision impairment; Cause of Action (8) is for creating a hostile work environment, (9) and (10) for retaliation, and (11) for wrongful termination. In Cause of Action (12), plaintiff asserts a cause of action against Squatrito for aiding and abetting conduct in violation of the NYSHRL and NYCHRL. As described above, defendants seek to dismiss each cause of action pursuant to CPLR 3211.

Plaintiff does not dispute that she commenced this action on August 1, 2023, meaning that, under CPLR 306-b, she would have until November 30, 2023, to personally serve Squatrito. Nor does she dispute that (1) service was completed on February 1, 2024, and (2) counsel waited until April 19, 2024—nearly five months after the time to serve had expired and more than two months after Squatrito moved to dismiss—to cross-move for an extension of time. Nonetheless, plaintiff contends that dismissal is not warranted under CPLR 306-b's "good cause" and/or "in the interest of justice" clauses. The Court of Appeals has found that these two prongs constitute separate grounds for extensions of time and require separate analyses. (See Henneberry v Borstein, 91 AD 493, 495 [1st Dept 2012].) To demonstrate an extension is warranted for good cause, the plaintiff must demonstrate reasonable diligence in attempting to serve the defendant. (LaSalle Bank NA v Ferrari, 210 AD3d 976, 977 [2d Dept 2022].) Here, plaintiff has failed to make this showing. In her memorandum of law, counsel asserts that she made every diligent effort to serve process within the CPLR-imposed timeframe. Yet, in sum and substance, counsel merely alleges that she researched his address and, on November 22, 2023 (one week before the 120-day period was to elapse), contacted the Middlesex County Sheriff's Office to serve the summons and complaint. According to her, the Sheriff's Office advised that service would take approximately two weeks (at which time she did not seek an extension), but they were unable to do so until February 1st. Absent from the motion papers is any description of the actions she took to serve the complaint from August 1st onward until the November 22nd date: she provides no details as to her research efforts to locate Squatrito or why she enlisted the Sheriff's Office [*4]only one week before the deadline expired.^[FN2] Nor does counsel submit a single affidavit of attempted service. It was only after service of process was completed and Squatrito moved to dismiss that plaintiff's counsel sought an extension of time from opposing counsel, who explained that she did not represent Squatrito at the time.

The First Department in Johnson v Concourse Vil., Inc. (69 AD3d 410, 410 [1st Dept 2010]) addressed circumstances remarkably similar to this case, where the plaintiff's counsel served the complaint late—just a single day, not 60 days—and showed that he attempted to arrange service with 8 days remaining out of the 120-the period. Under these circumstances, the First Department found that the plaintiff failed to show any diligence by (1) not following up with the process server (here, the Sheriff's Office), (2) failing to show that the defendant could not be located or readily served within the timeframe, and (3) by "wait[ing] until after the defendants moved to dismiss before cross-mov[ing] some several months later." (Id. at 410-411; see also Feng Li v Peng, 190 AD3d 950, 952 [2d Dept 2021] [finding the plaintiff failed to show good cause as he did not substantiate his claim through affidavits of due diligence/attempted service or provide evidence of various record searches, and counsel waited until the last month to hire a professional process server].) As such, it affirmed the lower court's determination that he was not entitled to the extension of time for good cause.

Even where a plaintiff has not shown good cause, however, courts may still grant an extension of time in the interest of justice. In assessing this prong, courts consider not only diligence but factors such as the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of the request for the extension of time, and prejudice to the defendant. (See Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001].)

In the absence of due diligence, plaintiff relies upon the merit of her causes of action and the lack of prejudice to Squatrito. As described in more depth below, plaintiff is correct that she has adequately pled certain claims and that the Court otherwise would not dismiss the complaint in its entirety. Nonetheless, from the Court's perspective, it cannot overlook the extreme lack of diligence in serving the commencement papers, the absence of any sort of explanation for serving him two months late, and counsel's five-month delay in seeking an extension, doing so only after Squatrito interposed a motion to dismiss. (See Umana v Sofola, 149 AD3d 1138, 1139-1140 [2d Dept 2017] [holding that interest of justice would not be served where counsel exhibited "extreme lack of diligence" by failing to demonstrate a reasonable excuse and failing to seek an extension until after the defendant's motion to dismiss was made].) Nor has plaintiff established that Squatrito would not be prejudiced by the extension given that counsel has not addressed whether he had knowledge of the action before service. (See Marjam Supply Co., Inc. v Warwick Props., Inc., 217 AD3d 853, 855 [2d Dept 2023] [finding extension in interest of justice unwarranted where plaintiff waited seven month, and only after the defendant challenged service, to seek an extension and "there was no indication in the record that he had actual notice of the action within the 120-day timeframe."])

As such, plaintiff's complaint is dismissed in its entirety as against Sqautrito for lack of personal jurisdiction under CPLR 3211 (a) (8).

On a motion to dismiss under CPLR §3211(a)(1), courts may grant such relief only where the "documentary evidence" is of such nature and quality — "unambiguous, authentic, and undeniable"— that it utterly refutes plaintiff's factual allegation, thereby conclusively establishing a defense as a matter of law. (Phillips v. Taco Bell Corp., 152 AD3d 806, 806- 807 [2d Dept 2017]; VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019] ["A paper will qualify as 'documentary evidence' if ... (1) it is 'unambiguous,' (2) it is of 'undisputed authenticity,' and (3) its contents are 'essentially undeniable'"].) The First Department has explained that the documentary evidence must "definitely dispose of the plaintiff's claim." (Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014].)

On a motion to dismiss brought under CPLR §3211(a)(7), the court must "accept the facts as alleged in the complaint as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994].) The Court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its only function is to determine whether their facts fit within a cognizable legal theory. (JF Capital Advisors, 25 NY3d at 764; Skill Games, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003].) Thus, the motion must be denied if, from the pleadings' four corners, the factual allegations manifest a cause of action cognizable at law. (See 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002].) On the other hand, the Court is not required to accept assertions consisting of bare legal conclusions nor allegations that are plainly contradicted by documentary evidence. (See Godfrey v Spano, 13 NY3d 358, 373 [2009] ["Conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss"]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]; Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003].)

Both the NYSHRL and NYCHRL make it unlawful for an employer to refuse to hire or to discriminate against an individual in compensation or in the terms, conditions, or privileges of employment, because of that person's race (along with sex, gender, and age). (See Executive Law §296[1][a]; Administrative Code of City of NY §8—107[1][a]; Bennett v Health Mgt. Sys., Inc. 92 AD3d 29, 34 [1st Dept 2011].) To plead a cause of action for employment discrimination under the NYSHRL, a plaintiff's factual allegations must show: (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 adverse employment action, and (4) the termination or adverse employment action occurred under circumstances giving rise to an inference of discrimination." (Harrington, 157 AD3d 582 584 [1st Dept. 2018].)

Under the NYCHRL, the elements of a discrimination claim largely mirror the NYSHRL, except that a plaintiff need not show that they suffered an adverse employment action—only that they were treated differently and less well than other employees under circumstances giving rise to an inference of discrimination. (Askin v Dept of Educ. of City of New York, 110 AD3d 621, 622 [1st Dept 2013]; Unobagha v Hilton Garden Inn Times Sq. N., 216 AD3d 524 [1st Dept 2023] [holding that a plaintiff cannot simply allege that he was treated poorly, but rather must [*6]show that such treatment was motivated by his race].) Under the NYCHRL, no action can be "motivated in whole or in part, by [unlawful] discrimination." (Cadet-Legros, 135 AD3d 196, 202 [1st Dept 2015].)

Here, defendants do not dispute that plaintiff is a member of a protected class—whether based on her race, age, sex, or age—and suffered an adverse employment action. However, at this initial stage, they contend that she has failed to show she was qualified for her position or that she suffered the adverse action under circumstances giving rise to an inference of discrimination. The Court disagrees. First, plaintiff has adequately alleged that she was qualified for her role in SFA by citing her 27-year employment record and through the numerous references to either having to correct the work of others or training others to use certain platforms within the company. (See NYSCEF doc. no. 1 at ¶¶87-89.) Second, defendants argue that a comparison between plaintiff's job description and that of Kolody's when he received the promotion reveals that he did not, in fact, replace her. Yet defendants have made no attempt to demonstrate that the attached exhibits showing the purported differences in the two positions—Exhibits B and C (NYSCEF doc. nos. 9 and 10)—constitute "documentary" evidence, which, as described above, must be of undisputed authenticity, unambiguous, and essentially undeniable. (See VXI Lux Holdco S.A.R.L v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]; Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010].) Among other issues, the attachments themselves do not specify (1) who within SFA created the job descriptions, (2) when they did so (the attachments contain no date), and (3) whether the job descriptions were published to a wider audience. Further, neither exhibit, individually, utterly refutes plaintiff's factual allegations; in fact, both require the others' presence for the Court to make a comparison as to their similarities, thereby making this evidence qualitatively different from the types of records the First Department has generally concluded withstand the "unambiguous, authentic, and undeniable"-test. (See Prott v Lewin & Baglio, LLP, 150 AD3d 908 [2017] [finding that judicial records and records reflecting out-of-court transactions such as mortgages, deeds, and contracts are properly considered documentary evidence because their contents are essentially undeniable].)

Defendants next argue that, even if Squatrito stated, "I know other Black women and they speak much clearer than you," the allegation is not sufficient to give rise to an inference of race-based discrimination. In support, they cite Thomas v Mintz (182 AD3d 490, 491) and Hudson v Merrill Lynch (138 AD3d 511) for the proposition that a "handful of insensitive comments" or other "stray remarks," even if made by the ultimate decision maker, do not rise to the level that is actionable under the NYSHRL and the NYCHRL. However, a review of the lower court opinion in Mintz (2018 NY Misc. LEXIS 3282 [Sup Ct. NY County 2018]) reveals that at no point did a supervisor and/or manager make a statement equivalent to the one attributed to Squatrito. As such, defendants have not established that the complained-of statement here is analogous to the "handful of insensitive comments" in Mintz. As to Hudson v Merrill Lynch, the same problem applies: defendants have not shown the "stray remarks" at issue there are analogous to Squatrito's comment. Moreover, the First Department affirmed the lower court's determination as to summary judgment, finding that it had properly applied the McDonnell-Douglas burden-shifting analysis after finding the plaintiff's underperformance to be a non-pretextual reason for termination. (Merrill Lynch, 138 AD3d at 516.) In light of the non-pretextual reason for dismissal, it concluded that no reasonable jury could find that gender discrimination played a role in the adverse employment decisions. (Id.) By contrast, defendants [*7]SFA and Squatrito only seek dismissal based on the pleading standards of CPLR 3211.

Lastly, unlike the stray remarks in Melman v Montefiore Med. Ctr. (98 AD3d 107 [1st Dept 2012]), which did not "imply any sinister aspersions," or those in Dozier v Federal Express, Inc. (2018 NY Misc 3058 [Sup Ct, NY County 2019]), here, plaintiff alleges that Squatrito directed his comment directly to her under circumstances in which he was openly considering terminating her. (See NYSCEF doc. no. 1 at ¶¶90,96 [Squatrito yelling "I can't wait to get rid of you" and Kolody heard discussing his recommendation to Squatrito to fire her].) Under these circumstances, in which plaintiff alleges she satisfactorily performed her job duties, her supervisor made race-based comments to her, and she was replaced by a white individual, the Court finds that she has adequately alleged that she was terminated, or treated less well, based on race under the NYSHRL and NYCHRL.^[FN3]

Plaintiff, however, has not adequately pled a cause of action for disparate treatment with respect to SFA's alleged denial of "equitable compensation." To plead a disparate treatment claim, a plaintiff must show that the individuals against whom she compares herself are "similarly situated in all material respects." (Shah v Wilco Sys., Inc., 27 AD3d 169, 177 [1st Dept 2005]; Etienne v MTA NY City Tr. Auth, 223 AD3d 612, 612 [1st Dept 2024].) Here, plaintiff has not identified a single non-African American individual working for SFA who was similarly situated—in terms of role, job responsibilities, and working conditions—but received better compensation than she. The sole references to her salary are contained in paragraphs 46 and 47 of her complaint, but these merely allege that she requested a pay increase to reflect the extensive work she performed for SFA and that they denied the request for an equitable raise. (NYSCEF doc. no. 1 at ¶ 46-47.) As such, to the extent that the first cause of action is premised on disparate treatment in terms of pay, the Court grants defendants' motion to dismiss.

Defendants are entitled to dismissal of plaintiff's second cause of action. This claim is based on the allegation that SFA terminated seventeen of its fifty-eight employees and that this policy disparately impacted African Americans. (See NYSCEF doc. no. 1 at ¶¶ 4, 116-117.) However, this claim is insufficiently pled considering she does not allege how many African Americans were employed by SFA to begin with and how many were terminated as a result. The opposition papers do not address this deficiency.

The same analysis applies here. Among other comments, Squatrito allegedly told plaintiff to her face, "I don't know why they hired you because you can't see," and "You need thicker glasses, the person who hired you was stupid." In support of their motion, defendants advance the same argument as above—namely, that these comments are stray remarks that, without more, do not constitute evidence of discrimination. Yet the Court would be hard-pressed to find statements that more directly supply a disability-based inference of discrimination than these. Again, these comments were allegedly made while Squatrito was considering whether to terminate her employment. As such, plaintiff has sufficiently pled her sixth cause of action for age-based discrimination grounded on SFA's termination of her employment. (See Pustilnik, 71 Misc 3d at 1073 [finding a complaint sufficiently pled where the plaintiff alleged the nature of her disability, that her supervisors were aware of the disability, and that she was fired within a matter of months].) However, to the extent that she grounds this cause of action on defendants' denying her equitable compensation, she again has not identified a similarly situated individual. (See supra, at 5-6.)^[FN4]

Her seventh cause of action for failure to accommodate her disability under the NYSHRL and NYCHRL is adequately pled.^[FN5] Under the NYSHRL to state this claim, a plaintiff must suggest that (1) she was disabled within the meaning of the statute, (2) the employer had notice of it, (3) she could perform the essential functions of her role with an accommodation, and (4) the employer refused said reasonable accommodation. (See Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014].) By contrast, the NYCHRL forbids employment discrimination against physically and mentally impaired individuals without reference to a "reasonable accommodation." (Id.) Rather, the Court of Appeals has interpreted the NYCHRL as permitting the employer to raise the inability of the disabled employee to satisfy the essential job requisites even with a reasonable accommodation, but only as an affirmative defense. (Id.)

Here, plaintiff avers that, prior to Squatrito becoming her supervisor, SFA had provided her with a large-screen computer to accommodate her vision impairment (NYSCEF doc. no. 1 at ¶60); when it broke, she submitted a request to Squatrito for a new, similar computer given that the standard-sized ones were difficult for her to use, and certain programs did not have the zoom functions she needed (id. at ¶61); and thereafter, he denied the request, in the process stating, "I don't know why they hired you because you can't see" (id.). Later, she re-upped her [*8]accommodation request multiple times, all of which Squatrito denied. (Id. at ¶69.)

On this motion, defendants contend that plaintiff has not shown (1) that she could perform the essential functions of her job even with a reasonable accommodation or (2) that SFA had notice of her alleged disability. At the outset, the Court notes that, under Jacobsen, defendants' first argument is not grounds for dismissal under the NYCHRL—only the NYSHRL. Regardless, their position does not account for the fact that, in having worked for SFA for 27 years and, during that time, having assisted in training other members of SFA's staff, plaintiff has demonstrated that she was qualified for her position and that she could perform the essential functions of her position as she had when Squatrito's predecessor first granted her requested accommodation. That she received approval from at least two SFA Board Members as to her work performance approximately one to two months before plaintiff's first request (see id. at ¶¶40,58) only strengthens her position, especially given the modest ask for a larger screen. As to (2), in light of the predecessor's actions, plaintiff's complaint states, in essence, that SFA failed to renew an accommodation already provided, refuting any notion that SFA did not have knowledge of her disability.

Unlike with her race- and disability-based discrimination causes of action, plaintiff does not allege that Squatrito made disparaging comments concerning her gender or age. Rather, these causes of action are entirely based on her termination and SFA allegedly putting someone younger and male and with less experience in her position. The fact that SFA replaced her with Komody, however, is clearly insufficient to support an inference of sex- and age-based discrimination. Outside Komody's physical appearance, there is nothing in the complaint that suggests SFA terminated her employment based on sex or age. To the extent that plaintiff's claims are based on other employees similarly situated outside her demographic, she has not identified them nor established that they are, in fact, comparative and received better treatment. Nor can SFA's reduction in workforce serve as the requisite inference of discrimination. (Hudson, 138 AD3d at 517 [1st Dept 2016] ["in the absence of other evidence of gender discrimination, the statistics alone are insufficient to defeat summary judgment. We also note that [like here] roughly half of those terminated were men"].) As such, plaintiff's causes of action for sex and age discrimination amount to little more than conclusory assertions and, as such, must be dismissed. (See Polite v Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021].)

Under the NYSHRL, a "hostile work environment exists '[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (See Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004], quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993].) Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work [*9]performance. (Forrest, 3 NY3d at 310-311.) Since the complained-of actions must be more than petty slights or trivial inconveniences (Franco v Hyatt Corp., 189 AD3d 569, 570 [1st Dept 2020]), the conduct must have altered the complainant's employment by being subjectively perceived as hostile and/or abusive and been so severe or pervasive that, objectively speaking, a reasonable personwould find the environment abusive. (See Parker v Waichman, LLP v Mauro, 215 AD3d 869, 874 [2d Dept 2023], citing Forrest, 3 NY3d at 310.)

As above, defendants insist that plaintiff has merely pled facts that amount to nothing more than petty slights and trivial inconveniences such that no reasonable person could find that they created an objectively hostile work environment. However, the Court finds this line of argumentation unpersuasive. At the risk of being redundant, over an approximately six-to-seven-month period, plaintiff's supervisor allegedly made one comment to her that displayed racial animus, made several others that degraded her based upon a known disability, and denied her an at-most modest accommodation without explanation, or at least one that did not belittle her. Not only this, but plaintiff's complaint details how the alleged hostile work environment affected the conditions of her employment, including by forcing her to work from home, at which point Squatrito began leaving her out of meetings, stripping her of her job responsibilities, and reassigning them to Kolody. (See NYSCEF doc. no. 1 at ¶¶91-92.) As such, it is clear that plaintiff perceived the environment Squatrito created to be hostile and, when viewed objectively by a reasonable person, may in fact be considered hostile. (See Sims v Trustees of Columbia Univ. in the City of NY, 168 AD3d 622, 623 [1st Dept 2019] [finding supervisor's repeated racially derogatory comments, that he looked "too old for the job," and that he worked like "he just came back from surgery" were sufficient to make out a claim for hostile work environment based on race, age, and disability]; Lum v Consolidated Edison Co. of NY, Inc., 209 AD3d 434, 435 [1st Dept 2022] [finding a plaintiff stated a hostile work environment claim based on coworker's mocking his accent in a racially charged manner].)

In or around March 2020, plaintiff complained to SFA President Phil Kafarakis and VP of HR Lisa Gauchey concerning the hostile work environment and "unequal treatment" she was experiencing from Squatrito, neither of whom addressed his misconduct (NYSCEF doc. no. 1 at ¶¶42, 48); after complaining, Squatrito "increased his hostility" by stripping her of duties (id. at ¶54); later, on April 3, plaintiff met with HR Manager Tony Vonoflorio to discuss her complaints (id. at ¶67); and, finally, on April 13, she again complained to Guachey about Squatrito's conduct (id. at ¶¶77-78). These allegations sufficiently show that (1) she was engaged in protected activity by opposing conduct prohibited by both the NYSHRL and NYCHRL, (2) defendants were aware of said protected activity, (3) she suffered an adverse employment action or her employer engaged in conduct reasonably likely to deter a person from engaging in protected activity, (4) there was a causal connection between the protected activity and the adverse action. (See Reichman v City of New York, 179 AD3d 1115, 1119 [2d Dept 2020], citing Keceli v Yonkers Racing Corp., 155 AD3d 1014, 1016 [2d Dept 2017] and Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235-1236 [2d Dept 2019].) Defendants suggest that plaintiff merely alleges that she complained of poor treatment—not treatment based upon her race, age, gender, or disability—and thus, the cause of action must be dismissed. Construing the allegations in the manner urged by defendants, however, would constitute a failure on the Court's [*10]part to afford plaintiff the benefit of every favorable inference, as required. Even if not made entirely explicit as demanded by defendants' position, it is clear from these allegations that plaintiff alleges she complained to HR and SFA's President concerning her perception that Squatrito was targeting her based upon her individual characteristics as prohibited by State and City statute.

Pezhman v City of New York (47 AD3d 493, 494 [1st Dept 2008]), put forth by defendants, is distinguishable as the protected activity consisted of the plaintiff's complaints about the quality of the training she received (which was not in dispute)—not any discriminatory treatment. The federal cases to which defendants cite—Williams v Westchester Med. Ctr. Health Newtork, 2022 US Dist. LEXIS 175332 [SDNY 2022], Harris v Office of New York State Comptroller, 2022 US Dist. LEXIS 48043 [SDNY 2022], and others—all subjected the hostile work environment claims to the "plausibility" pleading standard of Iqbal and Twombly and required the plaintiff to assert facts that the HR complaints were in "sufficiently specific terms" that the employer was on notice of the plaintiff's belief of discrimination. (Williams, at *41; Harris, at *17.) Defendants do not cite any cases in which New York courts have required a plaintiff to plead their hostile work environment in such terms. Nor is the Court aware of any such cases.

Plaintiff's tenth cause of action, for violating Labor Law §215 and/or §740, is dismissed as time-barred by each statute's respective statute of limitations. Both §215 (2) (a) and §740 (4) permit an employee to bring a civil action within two years of any violation. Here, the violations occurred, at the latest, on or around August 2, 2020, when SFA terminated her, but she commenced this action on August 1, 2023, more than one year after the time to file had expired. Plaintiff does not address this problem in her opposition.

Dismissal of plaintiff's eleventh cause of action is warranted as well. Above, under her first cause of action, the Court found that plaintiff had adequately pled race-based discrimination solely on grounds that they terminated her employment under an inference of racial discrimination. The same held for her sixth cause of action, finding that she alleged sufficient facts to suggest she was terminated under a disability-based inference of discrimination. Thus, plaintiff's claim for wrongful termination is identical to and entirely encompassed in her first and sixth causes of action. Plaintiff has not opposed this branch of the motion either. Accordingly, the eleventh cause of action is duplicative and must be dismissed.

Each of plaintiff's causes of action are brought against SFA as an employer and based on the doctrine of respondeat superior. SFA seeks dismissal on grounds that it cannot be held liable for Squatrito's conduct because it did not encourage or ratify the alleged discrimination. There is no merit to this argument: SFA does not dispute that Squatrito was plaintiff's superior nor that plaintiff alleges she complained to HR and SFA's President, neither of whom addressed her concerns. Lastly, since the Court has not dismissed all of plaintiff's causes of action, the Court finds defendants' arguments related to punitive damages premature.

Accordingly, for the foregoing reasons, it is hereby,

ORDERED that defendant Leo Squatrito's motion to dismiss plaintiff Anthere Motayne's [*11]complaint as asserted against him pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction is granted in its entirety; and it is further

ORDERED that plaintiff's cross-motion for an extension of time to serve the complaint pursuant to CPLR 306-b is denied; and it is further

ORDERED that the branches of defendant Specialty Food Association, Inc's motion to dismiss plaintiff's second, third, fourth, fifth, tenth, and eleventh causes of action pursuant to CPLR 3211 (a) (1) and (a) (7) is granted; and it is further

ORDERED that the branches of defendant Specialty Food Association, Inc's motion to dismiss plaintiff's first and sixth cause of action pursuant to CPLR 3211 (a) (1) and (a) (7) is granted to the extent that plaintiff asserts claims for discriminatory treatment based on equitable compensation ground and discriminatory impact based on defendants reduction in workforce policy, but otherwise denied as to her claim for discrimination based on her termination; and it is further

ORDERED that the branches of defendant Specialty Food Association, Inc's motion to dismiss plaintiff's seventh, eighth, and ninth cause of action pursuant to CPLR 3211 (a) (1) and (a) (7) is denied in their entirety; and it is further

ORDERED that the parties shall appear at 60 Centre Street, Part 34 on March 4, 2025, at 9:30 a.m. for a preliminary conference with the Court; and it is

ORDERED that counsel for defendants shall serve a copy of this order, along with notice of entry, on all parties within twenty (20) days of entry; and it is further.

This constitutes the Decision and Order of the Court.