Carey v. de Souza

Appellate Division of the Supreme Court of New York

Carey v. de Souza

254 A.D.2d 119, 678 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 10868

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 1998

StatusPublished

Cited by2 cases

This text of 254 A.D.2d 119 (Carey v. de Souza) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carey v. de Souza, 254 A.D.2d 119, 678 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 10868 (N.Y. Ct. App. 1998).

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Opinion

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]*120ing 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.

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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]*120ing 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.

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Bluebook (online)

254 A.D.2d 119, 678 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 10868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carey-v-de-souza-nyappdiv-1998.

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