J.S.M. v City of Albany Dept. of Gen. Servs.

Supreme Court, Albany County

Decided on May 1, 2026

Index No. 907624-23

David A. Weinstein, J.

By Verified Complaint filed August 10, 2023, plaintiff J.S.M. pled causes of action for hostile work environment/sexual harassment under New York Human Rights Law ("HRL") § 290 et seq., and for negligent supervision, retention & training against defendant Albany Department of General Services (the "Department" or "DGS"). Defendant subsequently brought a third-party complaint against third-party defendant Thomas Kelley for indemnification.

J.S.M.'s^FN2 claims allege that she was sexually harassed during her employment with DGS between 1998 and 2012. Plaintiff argued that her complaint was timely under the Adult Survivors Act ("ASA"), codified in CPLR 214-j, which created a window for bringing previously time-barred causes of action that arose out of certain sexual offenses set forth in the Penal Law.

The matter came before me on a motion by defendant to dismiss the complaint under CPLR 3211(a)(2), (7) and (8), as untimely and failing to state a claim, and in the alternative to strike various portions of plaintiff's pleading. By Decision & Order dated January 25, 2024 — familiarity with which is presumed — I dismissed plaintiff's hostile work environment causes of action except as to two allegations of "forced sexual contact," which I found were covered by the ASA (see J.S.M. v City of Albany Dept. of Gen. Servs., 83 Misc 3d 1082, 1090-1091 [Sup Ct, Albany County 2024]). The allegations found timely were that: (1) "Foreman" Dave Sherry forcibly kissed plaintiff twice in 2009 through 2010 (Complaint ¶¶ 42-47), and (2) in the winter of 2011, "Chief of the City" Thomas Kelley sexually assaulted her, kissing her against her will and forcing her to engage in oral sex (Claim ¶¶ 56-60).

DGS also moved to dismiss the claims regarding such conduct on the ground that the alleged perpetrators were not high-level supervisors whose actions could be attributed to defendant (see id. at 1092-1095). I found this argument to be premature at the pleadings stage, as plaintiff's claims as pled were not insufficient "as a matter of law" (id. at 1095). Also, while I struck those portions of the complaint that referred to other allegations of sexual discrimination, I did not strike any of those relating to other conduct by Sherry and Kelley, finding that they were "sufficiently related to the revived assault allegations to pass the relevance threshold" (id. at 1099). Finally, I granted defendant's motion to dismiss the negligent hiring and retention causes of action, as insufficiently pled (id. at 1095-1097).

Defendant now moves for summary judgment on the remainder of the complaint. The motion is supported by the affirmation of counsel, deposition transcripts, and various other [*2]exhibits, and is premised on the following arguments:

• The record evidence establishes as a matter of law that neither Sherry nor Kelley were "superior officers whose conduct is attributable to defendant" (Memorandum of Law In Support of Defendant's Motion for Summary Judgment ["Def Mem"] 4).

• Defendant had a sexual harassment policy in place, and did not condone any of the alleged misconduct by Sherry and Kelly (id. at 4-12).

• Plaintiff has no legal basis to assert a claim against defendant under a theory of respondent superior (id. at 14-15).

• Plaintiff's claim of that she was retaliated against for complaining about harassment must be dismissed, since there is no evidence to support it (id. at 16).

In addition, defendant argues that, if necessary, the complaint should be "conformed" to substitute the City of Albany for DGS as the proper defendant (id. at 13-14).

In support of these arguments, defendant presents the transcripts of five depositions: that of plaintiff (Affirmation of Robert Magee, Esq ["Magee Aff"], Ex F ["JSM Tr"]); third-party defendant Kelley (id., Ex I ["Kelley Tr"]); former DGS Deputy Commissioner Susan Kimble (id., Ex J ["Kimble Tr"]); plaintiff's ex-husband, former DGS employee Robert M. (id., Ex O ["RM Tr"]); and DGS Labor Relations Supervisor Cathy Igoe (id., Ex K ["Igoe Tr"]). In addition, defendant provides some documentary exhibits, including DGS's sexual harassment training, and various organizational charts (see Magee Aff, Exs G-H, L-N).

Plaintiff has filed an affirmation of counsel and memorandum of law in opposition,^FN3 in which she argues that defendant was liable for the two alleged incidents of sexual assault against plaintiff on two grounds: because they were condoned by DGS, and because Kelley's actions as a supervisor could be imputed to the defendant (Plaintiff's Memorandum of Law ["Pl Mem"] 7-16). Further, she argues that defendant's failure to locate and produce Kelley's full personnel file constitutes spoliation of evidence, requiring a denial of DGS's motion (id. at 16-18). Finally, she argues that her treatment following her alleged assault by Kelley constitutes a distinct actionable claim for constructive discharge, and the evidence adduced during discovery has revealed a claim against defendant for quid pro quo retaliation deriving from Kelley's alleged conduct (id. at 13, 18-21).

In support of these claims, she relies primarily on plaintiff's and Kimble's depositions. Along with the memorandum setting forth Mr. Sherry's suspension. She also submits the memorandum from then Deputy Commissioner Nicholas D'Antonio setting forth the five-day suspension of Sherry as a result of his improper conduct towards M. (Affirmation of Ann S. Seifullah, Esq. in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Ex 2). In addition, plaintiff submitted an affirmation of counsel summarizing evidence for plaintiff's allegations of sexual discrimination and harassment — including extensive reference to the allegations which were dismissed or struck from the complaint on defendant's previous motion.

The evidence submitted by the parties relating to the remaining claims is summarized [*3]below.

The Evidentiary Record

The deposition testimony the parties have submitted in their motion papers, as relevant here, was as follows:

J.S.M.

Plaintiff testified that she began work with DGS as a seasonal employee some time in 1998 or 1999 and then worked full time for the agency (JSM Tr 12-13).

In regard to her allegations against Sherry,^FN4 Ms. M. said that he kissed her neck twice in incidents a week apart in 2010, once after having followed her into the women's bathroom (id. at 63-63, 113-114). During the agency's investigation, M. asked that Sherry not be fired (id. at 43, 118). He was given a five-day suspension, and the conduct did not continue (id.). Plaintiff said that Sherry was a "great guy," but had been "out of line" (id. at 43).

In M.'s estimate, Sherry supervised six people (id. at 106). He was not, however, her supervisor (id. at 107). Moreover, she acknowledged that Sherry lacked authority to hire and fire employees; could not approve time off; and while he could recommend discipline, he had to get higher level approval before it could be imposed (id. at 110).

As to Kelley's alleged assault, M. was unable to pinpoint the date, although she said it happened before Sherry's unwanted kissing ^FN5 (see id. at 120-122). She stated that it occurred in the Hudson Riverfront Building, when she was directed to check the locks there (id. at 65). Kelley was present when she arrived (id. at 143-144). Plaintiff testified that Kelley shoved her against the wall, pushed her head down and made her perform oral sex on him (id. at 146-147). She initially denied that there had been any previous sexual contact between the two (id. at 149-152; see also id. at 208 ["Q: And the only time you ever had any sort of sexual contact with Mr. Kelley was at the Riverfront building? A. Yes."]). Later in her deposition, however, she recounted the following:

"Q. Did [Mr. Kelley] ever kiss you?

A. No. Oh, well, excuse me, let me rephrase. I want to say that as I would leave the office and my husband would walk out, he would push me up against the wall and kiss on my face. Yes.

Q. How often did that happen?

A. More than once and it was so — I didn't like it at all. . . ." (id. at 235).

According to Ms. M., Kelley was not her direct supervisor at the time; that position was held by Robert M. (her future husband whom she married in 2010), and at various points by other individuals (id. at 31-34). She said that Kelley made numerous attempts to contact her after the alleged assault, although she would not pick up the phone (id. at 50-51). She acknowledged, however, meeting with Kelley once in a hotel room in 2009 after the assault took place, but [*4]stated that nothing happened sexually at that time^FN6 (id. at 57, 150-151).

Plaintiff made a complaint about Kelley in June 2011 to Deputy Commissioner Susan Kimble and City of Albany attorney Tara Wells^FN7 (id. at 47, 153-158). She said she had first gone to three other DGS supervisors to complain about Kelley: George Lipscomb, Judy Stacey and Bruce Shultis (see JSM Tr 47-48). It is not clear from her testimony what she said to these individuals and what they said or did in response.^FN8 She indicated that she decided to raise the issue with Kimble after efforts by Kelley to get her suspended or fired for a false accusation that she had not been present at the work site when she should have been^FN9 (id. at 165-167).

After plaintiff spoke to Kimble, things changed "tremendously" (id. at 50), and Kimble was "very supportive throughout" the process (id. at 168). The information given by M. was relayed to Commissioner D'Antonio, who asked her why she had not told him previously (id. at 172). After making her complaint, Ms. M. was granted a leave of absence with pay (id. at 51). Mr. Kelley was "demoted quick[ly]," and was put to work on "the streets" (id. at 60). His shift was also changed — with Kelley working 11 pm to 7 am, while plaintiff worked from 7 am to 3 pm (id. at 61). M. said that the two would sometimes pass each other after the demotion, but they did not speak and there was no further sexual harassment or assault by Kelley against her (id. at 62).

In regard to Kelley's supervisory authority, M. said that he could "start the paperwork trail" for hiring and firing (id. at 129). In regard to promoting (or "moving around") employees, [*5]he needed approval from a higher level^FN10 (id. at 130). He could set work assignments, but not employee salaries (id. at 131). He could, however, approve her time card and overtime (id. at 132).

M. averred that as a result of her accusations against Kelley, she was subjected to insulting statements on-line by DGS employees with ties to him, specifically pointing to Facebook posts by Kelley's sister-in-law^FN11 Jackie Beattie telling her to "drop dead" and calling her a "slut" and "whore" (Tr 72, 176). In addition, Ms. Beattie said "it smells like shit in here" when Ms. M. entered the room (id. at 176). Plaintiff complained about this to Deputy Commissioner Kimble, who "confronted" Beattie and told her she "didn't want to hear it" (id. at 177). Within days, Beattie "shouted" the same remark, and Kimble again spoke to her (id. at 178). Although Kimble did not impose any discipline on Beattie, plaintiff acknowledged that she did not repeat this conduct thereafter (id. at 179). Ms. M. recounted no other specific incidents of harassment that followed her complaint about Kelley.

Thomas Kelley

At the time of the alleged assault, Kelley served as DGS Labor Commissioner, a position he held from 2008 to 2012 (Kelley Tr 27). In this capacity, his responsibilities were to "oversee . . . work performance," specifically that of ten supervisory employees and 160 employees; handle complaints; and "[run] the whole show" in regard to snow removal (id. at 27-28, 97). He reported to the DGS Commissioner, and lacked the authority to hire, fire or promote employees — which rested with the Commissioner — except that he could fire seasonal workers (id. at 28, 34-35). In regard to discipline, he could "write someone up," but the final decision on whether to punish an employee was up to Deputy Commissioner Kimble (id. at 29). He also lacked the authority to set salaries or bonuses, although he could approve time off requests, overtime and changes in assignments (id. at 29-30, 33, 97-99). He did not have a role in setting Department policy (id. at 30).

Kelley's salary during this period was about $70,000 (id. at 33). He testified that he was the number 3 person in the Department hierarchy^FN12, below only the Commissioner and Deputy Commissioner (id. at 34). Kelley said that Sherry reported to him, and served as the "Fleet Maintenance Supervisor" (id. at 41). Sherry oversaw the work of three to four employees, and Kelley estimated that there were 12 or 13 other DGS staffers with similar authority (id. at 42). Sherry could not discipline or promote employees, or set budgets, but he could give out assignments (id. at 43). According to Kelley, Sherry did not supervise Ms. M. (id. at 45).

As to the allegations of sexual assault, Kelley admitted that he had a sexual relationship with plaintiff, which he said consisted of two instances of consensual intercourse in hotel rooms, after he was propositioned by Ms. M. (id. at 48-53). He testified that he ended the relationship, and plaintiff was upset as a result (id. at 54-55). He denied any other sexual encounters, including any such conduct in the Hudson Riverfront Building (id. at 61, 65). In regard to that incident, he testified that he went to the building to work out an issue that M. had related to keys, and then left^FN13 (id. at 62). He blamed M.'s accusation on the fact that he had cautioned her about showing up late and other matters (id. at 109).

In May 2011, Kelley was told of Ms. M.'s allegations of sexual assault (id. at 66-67). These ultimately led to him being placed on administrative leave for six months, and a demotion to street foreman (id. at 69-72). According to Kelley, he had no interaction with plaintiff after the accusations, except to see her on occasion as they punched out from work (id. at 82).

Susan Kimble

Ms. Kimble was the Deputy DGS Commissioner at the time of the events at issue, having been appointed to the position in 2008 (Kimble Tr 9).

According to Kimble, Ms. M. came to her and told her that Kelley was making her have sex with him, although she had said no multiple times (id. at 15). M. said she had gone to various supervisors (Shultis, Stacey, and "Lipscone" [sic]) and none would help her (id.). Kimble brought in Ms. Wells from the City Law Dept to address the issue, along with outside counsel Steve Rehfuss (id. at 16). Counsel recommended firing Kelley, but because it was a first offense and Kelley was close to retirement, the Commissioner decided instead to demote him and re-assign him to Night Supervisor, while M. would continue to work during the day (id. at 20-21). He was also placed on administrative leave with pay (see id. at 119-120).

Kimble also spoke of the DGS culture at the time, under which she said that women were not viewed or treated as equals (id. at 38). She said that the men in the garage would make sexual comments as women walked by, and had copies of Playboy Magazine hung up in the work place (id. at 39-40).

In regard to the Sherry incident, Kimble gave the following account: David Sherry went into the bathroom when M. was present, locked the door and engaged in "sexual" conduct not specified in Kimble's testimony (id. at 41-42). After the offense was reported, the Commissioner asked M. what should happen to Sherry with him present (id. at 43). M. said she did not want him hurt, but wished to make sure it did not happen again, and Sherry was suspended for five days (id.). Kimble was strongly opposed to the Commissioner's handling of the matter, questioning the appropriateness of asking a victim to decide the fate of her victimizer with the latter individual present (id. at 42-43).

In regard to Kelley's conduct, Kimble said that in M.'s initial complaint, she stated that Kelley had forced her to have sex by holding her job over her head (id. at 68). Plaintiff later told her that physical force was used (id. at 70). According to Kimble, M. reported that there were a number of incidents of such misconduct by Kelley against her (id. at 78).

Kimble testified that she was above Kelley in the Department's hierarchy, and she decided [*6]all disciplinary matters^FN14 (id. at 91).

Catherine Igoe

Ms. Igoe, the DGS Labor Relations Manager, testified in this litigation as the agency's representative (Igoe Tr 7, 9).

Igoe stated that she had performed a search for Kelley's personnel file in hallways filled with locked cabinets where old files were stored (id. at 36, 43). Along with a temporary employee, she went through all these files, but was unable to locate one for Kelley (id. at 43).

Robert M.

Robert M. was married to plaintiff between 2010 and 2020, and dated her for about ten years before their marriage (RM Tr 17-19). He took Kelley's place as Chief Labor Supervisor after his demotion (id. at 14, 76). He described the responsibilities of that position as follows: "Overseeing the operations, receive work, pass out what he gets, you know. Takes care of people like you if you walk up and say, 'Hey, I got a problem in front of my house" (id. at 76).

Mr. M. confirmed that David Sherry's title was Fleet Maintenance Supervisor (id. at 97). Sherry reported to the Chief Labor Supervisor (id. at 78).

M. said that JSM did not tell him about a sexual assault by Kelley (id. at 64). He also said that the tapes she had made of her interaction with Kelley had since become inaudible or were destroyed (id. at 71).

Documentary Exhibits

In addition to the materials set forth above, defendant submitted two documents related to DGS's sexual harassment policy. The first is a sexual harassment training quiz, signed by Ms. M., which asks seven multiple choice questions about sexual harassment — none particularly relevant to the events at issue (Magee Aff, Ex G). The second is a 2010 sign-off sheet in which Mr. Kelly indicated that he had taken the agency's sexual harassment training (id., Ex H).

Defendant also submitted three organizational charts, which it reads as "plac[ing] the Chief Labor Supervisor position as equivalent or subordinate to roughly ten other positions within the Department of General Services" (id. ¶ 66 & Exs L-N). One chart is dated 2015, the other two are undated but identified by counsel to be "from the early to mid-2010s" (id. ¶ 66).

In its reply submission, defendant has provided a copy of "interview notes and other materials produced by attorneys Stephen Rehfuss and Tara Wells during their investigation," as well as other portions of Mr. Kelley's personnel file it says were discovered subsequently and produced after plaintiff filed the Note of Issue, with an offer to plaintiff's counsel to re-open discovery (Affirmation in Reply of Robert Magee, Esq. ["Magee Reply Aff"] ¶¶ 37-39). Defendant references these documents solely in response to plaintiff's argument that DGW engaged in spoliation of evidence in relation to Kelley's personnel file, and purports to maintain its claims of attorney client and work product privilege over them despite their production in this litigation ^FN15 (id. ¶ 37).

Discussion

I. Preliminary Matters

Before addressing the parties' substantive arguments, there are two initial matters that must be considered: the timeliness of plaintiff's opposition papers, and the identity of her employer.

A. The Timeliness of the Opposition Papers

The deadlines for the parties' motion submissions are set forth in CPLR 2214(b), which provides (with emphasis added):

"A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time"

Here, defendant's Notice of Motion falls within the italicized language, as it was served over a month before its stated return date of July 31, and demanded answering pages seven days in advance of that date (see NYSCEF No. 47). Instead, plaintiff served its opposition papers three days in advance of the return date, and thus they were late.

Defendant noted the late submission by letter dated July 30, 2026, and accordingly requested an extension of the time to file its reply brief until August 1, 2026, which was granted (see NYSCEF No. 70). In its reply papers, defendant argued — which it had not in its earlier letter — that defendant's delay should result in the striking of the opposition papers (see Defendant's Reply Memorandum of Law ["Def Reply Mem"] 10). Plaintiff did not seek to submit a sur-reply, and thus has never addressed this issue.

I decline this aspect of the defendant's application. It is true that the absence of an explanation for the delay in filing papers or request for an extension generally bars the Court from waiving a statutory deadline (see Bank of American, N.A. v Afflick, 172 AD3d 1146, 1147 [2d Dept 2019] ["the defendant did not make an adequate showing of good cause because he did not offer a valid reason for the extension"]; see also CPLR 2004 [deadlines may be extended "upon such terms as may be just and upon good cause shown"]). But here, defendant specifically sought an alternative remedy — the extension of time to submit a reply — which plaintiff did not oppose. Having received the requested extension, and in the absence of any showing of prejudice and given the preference for resolving cases on their merits, its later request for a more [*7]stringent remedy is unwarranted^FN16 (see Serradilla v Lords Corp., 117 AD3d 648, 648 [1st Dept 2014] ["the motion court properly exercised its discretion when it considered plaintiffs' late-served opposition papers, as there was no showing of prejudice, and defendant was able to submit reply papers on the motion"]; Prato v Artz, 79 AD3d 622, 622-623 [1st Dept 2010] [trial court erred in striking late brief, when "issue was addressed and resolved by the motion court, which granted defendant's request for an opportunity to file a reply," and there was no prejudice to other party]; cf. Associates First Capital v Crabill, 51 AD3d 1186, 1188 [3d Dept 2008] [noting preference for resolving cases on the merits in allowing late submission], lv denied 11 NY3d 702 [2008]).

In any event, even if I were to grant defendant's application, it would not resolve the questions presented by this motion. Even if defendant's application were unopposed as a technical matter, defendant must still demonstrate prima facie that it is entitled to judgment as a matter of law (see e.g. Rivers v Butterhill Realty, 145 AD2d 709, 710 [3d Dept 1988] [although late opposition papers were properly rejected, "plaintiff was still required on her own to demonstrate her right to summary judgment"]; see also Caliber Home Loans, Inc. v Squaw, 190 AD3d 926 [2d Dept 2021] [denying unopposed motion for summary judgment where movant failed to present a prima facie case]). Since the plaintiff does not rely on any evidence not included in defendant's moving papers — except in regard to its spoliation argument and a single, largely immaterial memo about the Sherry matter — striking its papers would not alter the analysis below. I will therefore consider defendant's motion on its merits.

B. The Identity of Plaintiff's Employer

It has been defendant's position throughout this litigation that the proper defendant here is the City of Albany, not DGS, and thus any question of whether an individual had sufficient supervisory authority such that its actions would be deemed that of the employer must be judged in relation to the City as a whole, not as to DGS (see Def Mem 13-14). I find no legal basis for that position.

Defendant cites a number of cases for its argument, most of which are not relevant to this issue (see Ximines v George Wingate High School, 516 F3d 156, 159-160 [2d Cir 2008] [Department of Education could not be sued under the New York City Charter]; City of New York v State of New York, 86 NY2d 286 [1995] [discussing right of municipal corporation to sue]). It does not cite a single case addressing this issue under the Human Rights Law or that in anyway supports its general view. Further, the caselaw discussed below regarding the difficulties of addressing misconduct by high level executives at an employer looks to the role of such individuals in the disciplinary process and their power over plaintiff. The relevance of those rulings can only be assessed in the context of the individual's actual workplace, and who within it [*8]has jurisdiction over such matters as hiring, firing, discipline and hearing complaints. There is no reason why that assessment should be based on which entities are as a technical matter the properly named defendants. By way of example, defendant's view would require a court considering a discrimination suit against New York State to determine whether the harasser was a senior executive in the entire State, else his or her actions could not be deemed to reflect defendant's condonation of the conduct at issue. But there is no shortage of appellate decision which carry out such analyses in the government context, and all look to the entity that as a practical manner constitutes the individual's place of work (see White-Barnes v New York State Dept. of Corr. and Community Supervision, 214 AD3d 1230, 1232 [3d Dept 2023]; Tidball v Schenectady City School Dist., 122 AD3d 1131 [3d Dept 2014]; Doe v New York City Department of Education, 669 F Supp 3d 160 [ED NY 2023]).

In light of the foregoing, I find the question of whether plaintiff has grounds to challenge defendant's actions in relation to the alleged harassment at issue must be assessed on the basis of the conduct by DGS and its leadership, not that of the City of Albany. With this reading in mind, I proceed to consider substance of defendant's motion.

II. The Merits

To prove a claim for sexual harassment on the basis of a hostile work environment, plaintiff must show her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004] [internal quotation marks, citations and brackets omitted]). In some circumstances "a few extraordinarily severe instances of sexual harassment can establish a hostile and abusive work environment" (Pawson v Ross, 137 AD3d 1536, 1539 [3d Dept 2106]) — and even a single incident of sexual assault may meet this standard, if it is "extraordinarily severe" (see San Juan v Leach, 278 AD2d 299, 300 [1st Dept 2000] [citation omitted]).

A claim of hostile work environment does not require a demonstration of a link between the conduct and any adverse employment decision (see Father Belle Community Center v New York State Div. Of Human Rights, 221 AD2d 44, 50-51 [4th Dept 1996], lv denied 89 NY2d 809 [1997] [hereinafter "Father Belle"]). However, under New York law an employer is not liable for a hostile work environment pursuant to the doctrine of respondeat superior, merely because the actions at issue were carried out by its employees ^FN17 (see Father Belle, 221 AD2d at 50-51 ["the doctrine of respondeat superior, or vicarious liability based on the agency relationship, is not available in cases involving discrimination, including sex-based discrimination and its sexual harassment component"], lv denied 89 NY2d 809 [1997]; see also Spoon v Am. Agriculturalist, Inc., 120 AD2d 857, 860 [3d Dept 1986] ["the doctrine of respondeat superior is generally not available in sex discrimination cases," but an employer is liable "where the employer has pervasive knowledge of the wrongful conduct and fails to respond"]).

Thus, the plaintiff must prove that her employer "knew or should have known that she [*9]was subjected to unwelcome sexual harassment" and "failed to take remedial action" (Matter of Bracci v New York State Div. of Human Rights, 62 AD3d 1146, 1148 [3d Dept 2009], appeal dismissed 15 NY3d 865 [2010], citing Pace v Ogden Servs. Corp., 257 AD2d 101, 103 [3d Dep't 1999]). In other words, an employer "cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it"^FN18 (Matter of Totem Taxi v New York State Human Rights Appeal Bd, 65 NY2d 300, 305 [1985]; accord Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 NY2d 684, 687 [1985]; see also Goering v NYNEX Information Resources Co., 209 AD2d 834, 834 [3d Dept 1994], quoting Spoon, 120 AD2d at 858 [plaintiff must show that the employer "had knowledge of and acquiesced in the discriminatory conduct of its employee"]). An employer may be deemed to have condoned an employee's harassment when there has been "knowing, after-the-fact forgiveness or acceptance of [the] offense," which may be reflected by "an employer's calculated inaction in response to discriminatory conduct" (Father Belle, 221 AD2d at 53-54).

Before applying these standards, I note this case presents a somewhat unusual context. Since this case is brought under the ASA, those allegations that do not involve sexual offenses rendered timely by this statute are not properly before me. I therefore found in my earlier opinion that while allegations generally about conduct by Sherry and Kelley remained relevant to the specific claims of harassment, unrelated claims of sexually based discrimination or harassment during M.'s time at DGS were not (see J.S.M., 83 Misc 3d at 1098-1101). As a result, I must limit my consideration of M.'s claims to the allegations concerning those two individuals.

The upshot of defendant's argument is that defendant did not acquiesce in the conduct at issue because (1) it had and followed a sexual harassment policy; (2) the alleged actions by Sherry and Kelley violated that policy; (3) as soon as defendant learned of their misconduct towards plaintiff, it took remedial action; (4) the disciplinary measures terminated the harassment; (5) neither Sherry nor Kelley was a high enough level supervisor that their conduct could be attributed to their employer; and (6) to the extent there is evidence that plaintiff notified other individuals of the harassment at issue, they were also not of sufficiently high level to support a suit against DGS (see Def Mem 5-12).

Having considered these arguments, I find that the evidence presented by defendant [*10]makes out a prima facie case for summary judgment on plaintiff's claim for hostile work environment sexual harassment. Specifically, in regard to the allegations against both Sherry and Kelley, there is no evidence in the record that DGS encouraged, condoned or approved such actions. As a result, defendant has met its initial burden on this motion.

An employer may disprove condonation or approval by "showing that it reasonably investigated complaints of discriminatory conduct and took corrective action" (Reynolds v State, 180 AD3d 1116, 1118 [3d Dept 2020], citing Vitale v Rosina Food Prods., 283 AD2d 141, 143 [4th Dept 2001] [internal quotation marks and citation omitted]). Defendant has presented proof that this occurred here.

In the case of Sherry, after plaintiff asked specifically that he not be fired, he was suspended and the conduct did not recur (see JSM Tr 43, 118). While Kimble understandably criticized the process used on the ground hat it was not appropriate for Sherry to be in the room while M. was asked about the appropriate punishment for him (see Kimble Tr 42-43), at her deposition M. confirmed independently that it was her wish at the time that Sherry not be terminated (see JSM Tr 43). And in any event the suspension put a stop to his harassment — there is no disagreement that his unwanted kissing occurred on two occasions in the course of a week, and never recurred after he was disciplined. Thus, there is simply no indication in the record of any DGS encouragement of his actions in advance, condonation of them at the time, or inaction in the face of M.'s complaint after the fact. As a result, DGS has established prima facie that it is not liable under the Human Rights Law for his misconduct.

As to Kelley, his actions could not have been condoned until M. reported them in 2011 (see Medical Exp. Ambulance Corp. v Kirkland, 79 AD3d 886, 887-888 [3d Dept 2010]["only after an employer knows or should have known of the improper conduct can it undertake or fail to undertake action which may be construed as condoning the improper conduct"], lv denied 17 NY3d 716 [2011]). After she gave those individuals who had authority over discipline her account of what Kelley had done, he was demoted and assigned night work so he no longer had regular contact with her.

These steps cannot be viewed as reflecting the sort of "calculated inaction" as would condone his conduct. The caselaw on this issue is straightforward: when there is inaction in the face of evidence of harassment, condonation may be present, but when the employer imposes meaningful discipline, condonation is not found (compare Sormani v Orange County Community Coll., 240 AD2d 724, 724-725 [2d Dept 1997] [no sexual harassment claim when employer suspended harasser as soon as it was notified], with Matter of Wal-Mart Stores E., L.P. v New York State Div. of Human Rights, 71 AD3d 1452, 1453 [4th Dept 2010] [substantial evidence supported finding defendant "condoned its employee's actions by failing to discipline the employee"]; Bianco v Flushing Hosp. Medical Center, 54 AD3d 304, 305 [2d Dept 2008] [question of fact as to employer's liability for sexual harassment when there was evidence that supervisor knew of alleged misconduct prior to complaint, and failed to take action]).

In response to defendant's prima facie case, plaintiff presents a number of arguments, but none demonstrates that there is a disputed issue of material fact for trial.

She argues that before speaking with Deputy Commissioner Kimble, she went to three other supervisory employees: George Lipscomb, Judy Stacey and Bruce Shultis, and her complaints were ignored (see Pl Mem 5, 11-12; JSM Tr 47-48). Ms. M. does not indicate in her [*11]testimony what she told these individuals — the only specific thing referenced in was her concern that Kelley was trying to get her suspended.^FN19 And when specifically asked about whether she had told these individuals that she was sexually assaulted by Kelley in the Hudson Riverfront Building, M. said she had not (see JSM Tr 152-153).

While Kimble testified that the complaints to these individuals was that "Tom [Kelley] was making her have sex with him," her only basis for such is the hearsay she was told by plaintiff, and she acknowledges she never spoke to these three employees about the matter (see Tr 15-16). In addition, none of these individuals had the authority to discipline employees generally — much less a higher level supervisor like Mr. Kelley (see supra p 5 n 9). As a result, her complaints to these individuals, assuming they in some way concerned the alleged assault, do [*12]not show that the employer condoned the conduct^FN20 (cf. Vitale, 283 AD2d at 144 [condonation may be shown when "upper-level supervisors" had knowledge of the conduct]).

Plaintiff also challenges the nature of the discipline imposed, asserting that M. "saw her rapist at her workplace on a regular basis, as he was clocking out of his shift while she was clocking into hers"^FN21 (Pl Mem 19). But that does not indicate that defendant condoned the conduct. It is true that corrective action may not preclude a finding of condonation when it is ineffective and "mere window dressing" (see Vitale, 283 AD2d at 147 [whether mere warnings of discipline made to employee after repeated complaints by plaintiff rebutted condonation was question of fact]). But there is no evidence that this was the case here. The record before me shows that Kelley was demoted from the third highest position in the Department to a night job with a salary $300 a week lower — a reduction that, according to Kelley, led him to lose his house (Kelley Tr 73). Part of this sanction involved the separation of plaintiff and Mr. Kelley, so that they worked separate shifts (see Kimble Tr 20-21). And, as noted, it is plaintiff's own testimony that the conduct never repeated itself after this occurred. Upon this record, plaintiff has not shown evidence of condonation.^FN22

Plaintiff's other arguments also do not create an issue of fact for trial. She cites testimony by plaintiff that defendant's sexual harassment policy was "a joke" and other disparaging remarks about it by M. and Kimble (see Pl Mem 11-12; JSM Tr 98). But even if such boilerplate criticism is enough to contradict defendant's claim that its policy condemned the conduct at issue, that is not enough to rebut the evidence that it did not condone the conduct alleged (see Medical Exp. Ambulance Corp., 79 AD3d at 888 ["No authority suggests that merely failing to have a sexual harassment policy is substantial evidence to support a finding that the employer condoned the sexual harassment"]).

Plaintiff also seeks to rely on caselaw providing that when the harasser is of a significantly high level that his actions can be attributed to the defendant employer, that in and of itself can constitute condonation (see J.S.M., 83 Misc 3d at 1092; Pl Mem 10). In my motion to dismiss, I found the allegations in the complaint sufficient to allege such a theory (see J.S.M., 83 Misc 3d at 1095). The more fully developed record before me, however, shows this contention [*13]cannot be sustained as a matter of law.

The most significant authority for this doctrine is Father Belle, supra. In that case, the Fourth Department held that liability could be imposed, without further showing of condonation, where the harasser was the employer's "highest managerial employee" (id. at 45). The case involved three women employed by the Father Belle Community Center ("the Center"), who made sexual harassment complaints against one Vito Caruso, the "direct supervis[or]" of these women (id. at 46). Caruso "exercised considerable authority in hiring and firing and plenary authority in determining pay, assignments, and other working conditions, subject only to oversight by the Board of Directors" (id.). He also engaged in unwanted touching and made sexual overtures to these women, all the while threatening them with termination or other negative repercussions in their work if they did not respond positively (id.). When the women complained to the Board — consisting in large measure of "Caruso cronies" — it led to their termination (id. at 47-48).

The Fourth Department rejected the Center's argument that it could not be held liable for Caruso's acts "without the concurrent knowledge of the Board of Directors," finding that New York law "permissibly imposes direct liability upon the Center for acts of harassment committed by its chief executive officer" (id. at 49). It found that the purpose of the condonation requirement was to require that notice be given to the employer, but "there is no opportunity to make a complaint to upper-level management where the harasser is the highest ranking supervisor"^FN23 (id. at 54; see also Franco v Hyatt Corp., 189 AD3d 569, 570 [1st Dept 2020] ["Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy"]).

There have been some differences among trial courts as to how far Father Belle should extend. Thus, in Castillo v Isakov (2023 WL 6664552 [SD NY Oct. 12, 2023]), the Court found that the defendant employer could be liable where the harassment was carried out by a "high- level supervisor" (id. at *6). In a more recent decision, the trial judge found the characterization of the rule in Castillo too broad, as Father Belle specifically applied only to the defendant's "chief executive" (see Spindel v Kroll, LLC, 2026 WL 555653, at *11 [SD NY Feb. 27, 2026] ["the Court does not adopt the broad carve out from the limitation on vicarious liability under the NYSHRL announced by the Court in Castillo"]).

Whatever the precise standard, the important point for purposes of this case is that the rationale in Father Belle cannot be made to fit the circumstances of either Sherry or Kelley, and thus plaintiff's action cannot proceed on this basis. The record does not present any dispute as to these facts: Neither Sherry nor Kelley had the authority to discipline or hire and fire employees, or to decide matters of policy (see JSM Tr 107, 110). There is no evidence, in short, that they acted as high level DGS executives (see Ellis v Child Dev. Support Corp., 5 AD3d 430, 431-432 [2d Dept 2004] [actions of plaintiff's supervisor could not be attributed to defendant corporation, [*14]because he was "not a high-level managerial employee whose conduct could be imputed to the appellant"]). Moreover, by plaintiff's own admission, they did not act as her direct supervisor at the time of the incidents at issue (see id. at 31-34, 107).

Given these facts, the rationale of Father Belle — that there was no chance for plaintiffs to make a complaint when the senior management of the defendant was involved in the harassment — was just not present here. The evidence shows that the disciplinary process was controlled by Commissioner D'Antonio and Deputy Commissioner Kimble, acting alongside legal counsel. Indeed, the proof in the pudding on this argument is provided by what actually occurred: There were high level personnel to whom plaintiff could complain, and when she did, they imposed discipline on Kelley, demoted him, separated him from plaintiff for all practical purposes, and put an end to any misconduct. Sherry was similarly disciplined, and his wrongdoing ceased as well. The individuals that ran DGS, in short, did not act in any way that condoned the conduct of these two individuals, and the dilemma faced by the complainants in Father Belle — that their harasser controlled the employer — is not at issue in this case.

Accordingly, accepting all of plaintiff's evidence as true and drawing all inferences in her favor, she cannot prevail as a matter of law on a hostile work environment claim against DGS based on the incidents involving Sherry and Kelley that were rendered timely by the ASA.

III. Additional Claims

Plaintiff also argues that certain other causes of action are supported by evidence in the record. First, she alleges that the manner in which Kelley was disciplined merely continued the hostile work environment, and M. was ultimately "constructively discharged" as a result of "the hostility that she faced everyday, having to face her rapist in person, as well as the insults of his supporters — after her sexual assault complaint had been substantiated." (see Pl Mem 18). In addition, she says that discovery has revealed that she has a "quid pro quo" sexual harassment claim against defendant, based on Kimble's testimony that "Kelley's misconduct included threats to fire Plaintiff if she rejected his advances" (id.).

There are a number of problems with these contentions. The first is that both these claims are time-barred (see Def Reply Mem 9-10). As noted above, the aspects of this case that I found to be revived by the ASA are those which involve allegations of sexual crimes as defined by Article 130 of the Penal Law (see CPLR 214-j). Specifically, the statute permitted bringing of otherwise time-barred claims which allege "intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense" (id.). Where no such act is present, the ASA does not apply, and a claim brought outside the applicable limitations period must be dismissed (Murray v Planned Parenthood Federation of America, — AD3d —, 2026 WL 1139873 [1st Dept April 28, 2026] [ASA did not apply when plaintiff "failed to allege 'conduct that would constitute a violation of at least one of the criminal statutes enumerated' therein"]; Levin v Sarah Lawrence College, 747 F Supp 3d 645, 665-666 [SD NY 2024] [claim that defendant allowed sexual "grooming" of plaintiff not covered by ASA, when plaintiff did "not allege that the acts of grooming, manipulation, and food and sleep deprivation to which Ray subjected Plaintiffs were accompanied by physical touch such as might give rise to, for example, a claim for sexual misconduct, see NY Penal Law § 130.20, forcible touching, see Penal Law § 130.52, or sexual abuse, see NY Penal Law §§ 130.55—130.70"]).

Plaintiff does not indicate what Penal Law provision would cover these claims. While there is certainly a relationship between Ms. M.'s allegations of sexual misconduct and the derogatory comments she says were made about her which form the basis (along with her occasional contact with Mr. Kelley) for her constructive discharge claim, neither the statements by Ms. Beattie nor the overlap between her shift and Kelley's arise out of any covered violation of the Penal Law. And even if her quid pro quo claim could be read to fit within Article 130 of the Penal Law, plaintiff acknowledges that it was not present in her original complaint (Pl Mem 13), and she cannot bring it now that the ASA window is closed.

Finally, the evidence before me does not present a disputed question of fact as to the alleged constructive discharge cause of action in any event. To show a constructive discharge, plaintiff must prove that the employer "deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign" (White-Barnes, 214 AD3d at 1232 [citation omitted]). Taking plaintiff's assertions as true and drawing every inference in her favor, the allegations of what took place after the assault do not support such a claim. Essentially, they consist of several insulting statements and social media posts by one individual, who is not a supervisory employee (see JSM Tr 191-192 [after Kelley's demotion, M. did not make complaints besides those about the comments by Beattie and Kelley's wife, who was not a DGS employee]). After each such statement, the employee was admonished by the agency's Deputy Commissioner, and plaintiff concedes that the insults did not continue after the second in-person incident (id. at 179). Without diminishing the demeaning nature of such statements, they were not sufficient to show that her working conditions were so intolerable that she reasonably felt compelled to resign (see Murphy v Department of Educ. of City of New York, 155 AD3d 637, 640-641 [3d Dept 2017] ["isolated and episodic" instances of discrimination not enough to support constructive discharge claim]). Finally, M.'s own testimony is that after several absences relating to injuries and other health-related issues, she stopped working for DGS in August 2012 when she broke her leg, and then was terminated under Civil Service Law § 71, for being absent for more than a year (JSM Tr 45, 191-192). And while she said at various points that she did not return because of the way she was treated by other employees, her statements in this regard are at best contradictory of other explanations of why she left (see id. at 15 ["I broke my leg in 2012, and that's when I finally decided it's over"]; id. at 15-16 [broken leg and "a lot of injuries, a lot of surgeries" were the reason she left DGS]; id. at 189 ["I knew I couldn't stay. There was — those other men — Thomas. He's very well liked. He's a very nice man. I didn't like him — tried to hurt me and screw me at the same time is — is sick"]; id.. at 191 [" I knew I had to leave because of the talk of the men. I couldn't deal with the pressure, their opinion. It's a man's garage"]; id. at 192 ["After the situation, the uncomfortableness I felt walking in that garage, the whispers, the looks, the secretaries"]). Finally, given that Kelley retired before Ms. M., his presence on the worksite could not explain her "constructive discharge" (see JSM Tr 62).

IV. Spoliation/Loss of Kelley's File

Finally, plaintiff argues as an alternative basis for denial of summary judgment that defendant failed to preserve and produce a key piece of evidence relevant to this case: Mr. Kelley's personnel file. Plaintiff argues that "Defendant cannot benefit from the absence of key evidence" which was "solely within their control," and such "precludes this court from finding that there is no genuine dispute of material facts relating to Chief Kelley's role within and the [*15]City of Albany, as it likely details the existence (or non-existence) of past misconduct complaints and the very investigation records around which this legal matter revolves" (Pl Mem 17-18).

According to plaintiff, during discovery defendant produced her personnel file and that of Mr. Sherry, the latter containing disciplinary records and investigative material (see Seifullah Aff ¶¶ 106-107). In regard to Mr. Kelley, however, defendant was unable to locate his file, and then two weeks after the Note of Issue was filed, it produced 120 pages of payroll and retirement records for him, but nothing in regard to his job description or any discipline imposed on him (id. ¶ 108). As noted above, defendant points out in its reply submission that it had also produced the records of its investigation of plaintiff's complaint against Mr. Kelley, but agrees it could not find "a portion of Mr. Kelley's personnel file" (see Magee Reply Aff ¶ 37).

Although plaintiff does not present a specific statutory basis for such relief, counsel cites to DiDomenico v C & S Aeromatik Supplies (252 AD2d 41, 52 [2d Dept 1998]) (see id. at 18). That case concerns a claim of spoliation of evidence under CPLR 3126, and thus it is under the framework of that provision that I analyze plaintiff's argument.

Under CPLR 3216, the party seeking such a sanction has the burden to show that "the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica, S.A., 26 NY3d 543, 547 [2015] [cleaned up]). A culpable state of mind may include negligence, but in such case plaintiff must show that spoliated materials are relevant to a claim or defense, while in the case of intentional spoliation relevance is presumed (id.). Moreover, to demonstrate that a party had an obligation to preserve evidence, the movant must at least show that "the spoliator was on notice that the evidence might be needed for future litigation" at the time it was destroyed (see Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846 [2d Dept 2016]).

The central problem for plaintiff in applying this standard, is that the events at issue in this case took place over a decade before the suit was filed, and for many years prior to enactment of the ASA, any action would have been time-barred. During that period, defendant had no obligation to maintain Kelley's file.

There is nothing in the record which would indicate that these records were destroyed during the pendency of this litigation. To the contrary, the record evidence made clear that such files could easily have been lost or disposed of in the pre-suit period. According to Kimble's testimony, personnel files were left for a long time sitting in a hallway (Kimble Tr 26-27). Kimble moved them to an office, but the door was often left open, and anyone could have gotten in and taken them (id.). In addition, DGS Labor Relations Manager Catherine Igoe testified that she had searched for Kelley's file in all the cabinets where such were maintained, and could not locate it (Igoe Tr 43).

Since there is no evidence to show that Kelley's file was disposed at a time when defendant had an obligation to preserve it, or that it was disposed of with a culpable state of mind, the alleged spoliation does not provide any basis for denying defendant's summary [*16]judgment motion.^FN24

Accordingly, it is hereby ORDERED that defendant's motion is granted, and this action is dismissed.

The original Order is being electronically filed with the County Clerk, with a copy e-mailed to plaintiff's counsel. The electronic filing of the Decision and Order does not relieve counsel from the applicable provisions of the CPLR concerning filing and service of Notice of Entry.

ENTER

Dated: May 1, 2026

Albany, New York

David A. Weinstein

Acting Supreme Court Justice

Papers Considered

1. Notice of Motion for summary judgment dated June 26, 2025, with appended Affirmation in Support of Robert Magee, Esq., dated June 26, 2025, Exhibits A-O.

2. Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated June 26, 2025.

3. Affirmation in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment of Ann S. Seifullah, Esq., dated July 28, 2025, with appended Exhibits 1-2.

4. Memorandum of Law in Opposition to Defendant Albany's Motion for Summary Judgment, dated July 28, 2025.

5. Letter of Robert Magee, Esq. To Court of July 30. 2025, with endorsement order.

6. Defendant's Memo of Law in Reply, dated August 1, 2025.