Harris v. Chen

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover damages arising from alleged gender-based discrimination by defendant, her former employer. Supreme Court properly denied defendant’s motion insofar as it sought summary judgment dismissing plaintiffs claims alleging hostile work environment and quid pro quo sexual harassment. Defendant failed to meet his burden of establishing his entitlement to judgment as a matter of law with respect to those claims (see, CPLR 3212 [b]). In addition, even assuming, arguendo, that defendant met that burden, we conclude that proof that he repeatedly made unwelcome physical and verbal sexual advances to plaintiff and fired her after, she rejected those advances is sufficient to raise triable issues of fact with respect to plaintiffs sexual harassment claims (see generally, Walsh v Covenant House, 244 AD2d 214, 215; Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 49-51, Iv denied 89 NY2d 809). The proof submitted by plaintiff is also sufficient to raise an issue of fact whether defendant subjected her to unlawful discrimination based upon her pregnancy (cf., Smith v Paris Inti. Corp., 267 AD2d 223). We agree with defendant, however, that punitive damages are not recoverable in this action, brought pursuant to Executive Law § 297 (9), alleging employment discrimination (see, Thoreson v Penthouse Inti., 80 NY2d 490, 494, rearg denied 81 NY2d 835; McIntyre v Manhattan Ford, Lincoln-Mercury, 256 AD2d 269, 271, appeal dismissed 93 NY2d 919). We therefore modify the order by granting defendant’s motion insofar as it seeks dismissal of plaintiffs claim for punitive damages. (Appeal from Order of Supreme Court, Ontario County, Barry, J. — Summary Judgment.) Present — Green, J. P., Hayes, Scudder, Burns and Lawton, JJ.