Carey v. de Souza

Order, Supreme Court, New York County (Carol Arber, J.), entered February 27, 1997, which granted defendant employer’s motion to dismiss plaintiff employees’ complaint for failure to state a cause of action, unanimously affirmed, without costs. Assuming in plaintiffs’ favor, as the IAS Court did, that dat 120 ing is a protected recreational activity under Labor Law § 201-d (see, Pasch v Katz Media Corp., 1995 US Dist LEXIS 11153 [SD NY, Aug. 7, 1995, Patterson, J. (94 Civ 8554 [RPP])]; contra, State of New York v Wal-Mart Stores, 207 AD2d 150), the alleged harassment was not so severe or pervasive as to support plaintiffs’ claims of constructive discharge (see, Spence v Maryland Cas. Co., 995 F2d 1147, 1156). We would also note that it appears from the complaint that plaintiffs made resignation their option of first resort, rather than attempting to address the alleged discrimination “from within existing employment relations” (Halbrook v Reichhold Chems., 735 F Supp 121, 125 [SD NY]; see also, Hanenburg v Principal Mut. Life Ins. Co., 118 F3d 570, 575 [8th Cir]; Clowes v Allegheny Val. Hosp., 991 F2d 1159, 1161-1162 [3d Cir]). We have considered plaintiffs’ other arguments and find them to be unavailing. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.