[295] Order, Supreme Court, New York County (Marilyn Shafer, J.), entered October 10, 2003, which, to the extent appealed from, denied defendants’ motion, pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs first and second causes of action alleging sex and gender discrimination, reversed, on the law, without costs, and the motion granted, with leave to replead should plaintiff be so advised.
While it is true that in considering a motion to dismiss brought pursuant to CPLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Rabouin v Metropolitan Life Ins. Co., 307 AD2d 843, 844 [2003]), it is also axiomatic that factual allegations that consist of bare legal conclusions are not entitled to such consideration (Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]; Caniglia v Chicago Tribune-New York News Syndicate, Inc., 204 AD2d 233 [1994]).
Plaintiff Hispanic AIDS Forum is, according to the complaint, an organization that offers prevention and education programs that foster an increased awareness and knowledge of HIV/AIDS in Latino communities and addresses attitudes, beliefs and behaviors that place Latinos at risk. Defendant Estate of Joseph Bruno, and defendant Trustees of the Estate, own and operate the building designated as 74-09 37th Avenue, Jackson Heights, Queens. Plaintiff, beginning in 1991, maintained its offices in the building pursuant to various lease agreements. By 1995, plaintiff needed additional space, which resulted in the execution of two separate lease agreements, effective through April 2000, for two suites on the third floor of the building. Plaintiff was required to share the common areas, such as the restrooms, with the other commercial tenants on the third floor.
Plaintiff alleged that in April 2000, the parties successfully negotiated a five-year renewal lease, which was to take effect on May 1, 2000. In the interim, during the first few months of 2000, plaintiff noted that its transgender population increased because it had formed a support group for the transgender population. Plaintiff claimed that it executed the renewal lease, but was subsequently informed by defendants’ office manager that the lease would not be renewed due to various complaints regarding the use of the bathrooms by its transgender clientele.
Plaintiffs remaining two causes of action1 seek redress under the New York State and New York City Human Rights Law. The
[296] New York State Human Rights Law, in effect at the relevant time, provided, in pertinent part, that: “It shall be an unlawful discriminatory practice . . . [t]o refuse to sell, rent, lease or otherwise deny to or withhold from any person . . . land or commercial space because of the race, creed, color, national origin, sex, age, disability, marital status, or familial status of such person or persons ...” (Executive Law § 296 [5] [b] [former (1)3).
The New York City Human Rights Law, in force at the time of the allegations set forth herein, provided, inter alia, that: “It shall be an unlawful discriminatory practice . . . [t]o refuse to sell, rent, lease ... or otherwise deny or to withhold from any person or group of persons land or commercial space . . . because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or alienage or citizenship status . . .” (Administrative Code of City of NY § 8-107 [53 [b3 [!)).
The New York City was subsequently amended in 2002 to provide specifically that the term “gender” includes “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth” (Administrative Code § 8-102 [23]). The State Legislature declined to adopt a similar amendment which would have specifically included transgender individuals under the State £s protective umbrella.
The parties herein, as well as the amici, extensively address the issues of whether the City and State Human Rights Laws in effect at the time were applicable to transgender individuals, as well as the significance of the City’s amendment of its Code, and the State’s refusal to adopt such an amendment.2 We, however, at this juncture, decline to address those issues, for
[297] the complaint, as it stands, fails to state a cause of action regardless of the applicability of the statutes to transgender individuals.
The allegations set forth in the complaint assert, despite plaintiffs attempt to paint them with a broader brush, that defendants refused to execute the lease renewal because plaintiffs transgender clients were using the common area restrooms that did not coincide with their biological sex and that the other tenants in the building were complaining. Specifically, the complaint attributes the following statements to specific individuals: Lucy Delgado, an employee of a travel agent that shared space on the third floor of the building with plaintiff, explained that two of the travel agent’s employees did not like “ ‘those men that look like women using the [women’s] bathroom’ Dorothy Novotny, the landlord’s office manager, purportedly told plaintiffs representative that “other tenants were complaining because ‘men who think they’re women are using the women’s bathroom’ Novotny later explained to a different representative of plaintiff that the landlord had received complaints from other tenants, and had issues with “ ‘men who think they are women using the women’s bathrooms’ and Jeff Henry, the landlord’s property manager, who “complained” to Leon Quintero, plaintiffs attorney, that “ ‘men dressed as women [were] coming into the building and using the bathrooms,’ ” after which Henry stated “ ‘[t]hey can’t use the wrong restrooms.’ ”
The complaint, in one sentence of its three-paragraph “Introduction,” makes the claim that plaintiff was “told . . . the lease would not be renewed unless [plaintiff] prevented its transgender clients from using common areas in the building, including the main entrance and bathrooms.” The ultimatum is attributed to “they,” or further back in the sentence to defendants, but nowhere in the complaint is a specific individual, i.e., any of the Trustees, or their agents, credited with making that particular threat. Indeed, at one point, Quintero is alleged to have informed Henry that plaintiff “could not legally restrict its transgender clients’ use of the building entrance, hallways or bathrooms,” yet the complaint is devoid of any allegation that Henry, or anyone else other than “they,” made such a threat.
Contrary to the dissent’s unfortunate characterization of our ruling as “puzzling,” in that we are charged with “artfully eliminating]” the complaint’s central allegation by “misstating]” what the complaint alleges, it is the dissent which endeavors to expand the scope of the complaint well beyond the
[298] allegations set forth therein. The dissent emphasizes that the defendants would only renew the lease “if plaintiff agreed, in writing, to preclude all of its transgender clients from using any of the building’s public restrooms . . . and [even] the building’s main entrance.” Yet, a careful review of the complaint reveals no such allegation; in fact, the only instance in which a written agreement is mentioned, and which is apparently the springboard for the dissent’s conclusions, purportedly occurred in the following conversation between Quintero and Henry as conveyed in paragraph 23 of the complaint: “Quintero and Henry had several conversations in which Henry insisted that [plaintiff] agree in writing that its clients would no longer use the public bathrooms in the building. Henry told Quintero that the Landlord needed such an agreement because other tenants were complaining about ‘the type of clientele’ coming in and out of the building and using the bathrooms. Specifically, Henry complained about ‘men dressed as women coming into the building and using the bathrooms.’ When Quintero asked whether Henry was referring to transgendered clients, Henry responded T don’t care what they are. They can’t use the wrong restrooms‘ ” (emphasis added). No reference in the complaint regarding the use of the building’s entrances is attributed to any identified individual, and it certainly was never associated with a request for a written agreement.
In sum, the complaint, as it stands, alleges not that the transgender individuals were selectively excluded from the bathrooms, which might trigger one or both of the Human Rights Laws, but that they were excluded on the same basis as all biological males and/or females are excluded from certain bathrooms—their biological sexual assignment. In this vein, we find the Minnesota Supreme Court’s decision in Goins v West Group (635 NW2d 717 [Minn 2001]) to be instructive. In Goins, plaintiff claimed that defendant discriminated against her3 based upon her sexual orientation by designating restrooms and restroom use on the basis of biological gender, in violation of the Minnesota Human Rights Act ([MHRA] Minn Stat § 363.03 [1] [2] [2000] [now Minn Stat § 363A.08 (2) (c)]). The MHRA was clearly written to encompass transgender individuals, and provides that the definition of “sexual orientation” includes “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness” (635 NW2d at 722). Nevertheless, the court concluded that the defendants’ designation of restroom use, applied uniformly, on the basis of “biological gender,” rather than
[299] biological self-image, was not discrimination. We agree with this rationale and, rather than issue an “advisory opinion,” as the dissent opines, we reverse and dismiss the complaint, on the merits, as, at this juncture, the only discernible claim set forth in the complaint is that plaintiff’s transgender clients were prohibited from using the restrooms not in conformance with their biological sex, as were all tenants. Inasmuch as plaintiff makes vague allusions to a connection between defendants’ refusal to renew the lease and plaintiffs refusal to prohibit its transgender clients from using the building’s common areas, including the main entrance, we grant leave to replead if plaintiff chooses to pursue those assertions with an adequate degree of specificity. Concur—Marlow, Sullivan, Nardelli and Catterson, JJ.
Footnotes
[1] Plaintiffs third and fourth causes of action, asserting discrimination based on disability under the New York State Human Rights Law and the
[296] New York City Administrative Code, respectively, were dismissed without prejudice.
[2] We note that the dissent, in discussing preamendment discrimination decisions applying antidiscrimination protection to transsexuals (see Richards v United States Tennis Assn., 93 Misc 2d 713 [1977]; Maffei v Kolaeton Indus., 164 Misc 2d 547 [1995]; Rentos v Oce-Office Sys., 1996 WL 737215, 1996 US Dist LEXIS 19060 [SD NY, Dec. 24, 1996]), states that these decisions were not called into question, “but in fact were accepted as prevailing law by the Court of Appeals in McGrath v Toys ‘R’ Us” (3 NY3d 421 [2004]), adding that we cannot now ignore them. While we are aware that it would be unwise to ignore any precedent, those cases are certainly not controlling. Moreover, the Court in McGrath, in addressing the significance of those cases, opined that “the fact a handful of lower courts had interpreted the statute broadly did not put to rest the scope of coverage issue” (at 436).
[3] Biologically, Goins was a male.
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