Morse v. Fortune Socy., Inc.

Opinion

Morse v Fortune Socy., Inc.

2026 NY Slip Op 05021

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Christina Morse, respondent,

v

Fortune Society, Inc., et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2025-00777, (Index No. 500144/23)

Angela G. Iannacci, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Fox Rothschild LLP, New York, NY (Neil A. Capobianco and Sara H. Bernstein of counsel), for appellants.

The Clancy Law Firm, P.C. (Niall Macgiollabhuí, New York, NY, of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of race and sex in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107, the defendants appeal from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated November 14, 2024. The order, insofar as appealed from, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, fourth, fifth, eighth, and ninth causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

By amended complaint, the plaintiff alleged, inter alia, that the defendant Fortune Society, Inc., her former employer, and the defendant Stanley Richards, her former supervisor, discriminated against her on the basis of her race and sex, created a hostile work environment, and retaliated against her in violation of the New York State Human Rights Law (NYSHRL) (Executive Law § 296) and New York City Human Rights Law (NYCHRL) (Administrative Code of City of NY § 8-107). The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint.

In an order dated November 14, 2024, the Supreme Court, among other things, denied those branches of the defendants' motion which were to dismiss the first cause of action, alleging sex discrimination pursuant to NYSHRL, the second cause of action, alleging sex discrimination pursuant to NYCHRL, the third cause of action, alleging race discrimination pursuant to NYSHRL, the fourth cause of action, alleging race discrimination pursuant to NYCHRL, the fifth cause of action, alleging hostile work environment pursuant to NYSHRL and NYCHRL, the eighth cause of action, alleging retaliation pursuant to NYSHRL, and the ninth cause of action, alleging retaliation pursuant to NYCHRL. The defendants appeal.

"When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true and provide the plaintiff with the benefit of every favorable inference" (Moscatelli v Woodbury Med. Practice, P.C., 241 AD3d 1453, 1454-1455 [alterations and internal quotation marks omitted]; see Perez v Y & M Transp. Corp., 219 AD3d 1449, 1450; Silvers v Jamaica Hosp., 218 AD3d 817, 818). [*2]"A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Moscatelli v Woodbury Med. Practice, P.C., 241 AD3d at 1455 [internal quotation marks omitted]; see Silvers v Jamaica Hosp., 218 AD3d at 818-819).

"The NYSHRL . . . and the NYCHRL . . . prohibit discrimination in employment" on the basis of, inter alia, race and sex" (Silvers v Jamaica Hosp., 218 AD3d 817, 819; see Executive Law § 296; Administrative Code of the City of New York § 8-107; Okeke v Interfaith Med. Ctr., 224 AD3d 763, 765). "A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ayers v Bloomberg, L.P., 203 AD3d 872, 874). "Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic" (id.; see Okeke v Interfaith Med. Ctr., 224 AD3d at 765; Golston-Green v City of New York, 184 AD3d 24, 38).

A hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [alteration and internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1002-1003; Beharry v Guzman, 33 AD3d 742, 743). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311 [internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1003).

"A plaintiff alleging retaliation in violation of the NYSHRL must show that (1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action" (Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1004; see Keceli v Yonkers Racing Corp., 155 AD3d 1014, 1016). "To make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct" (Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1004 [alteration and internal quotation marks omitted]; see Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235-1236).

Here, the Supreme Court properly denied those branches of the defendants' motion which were to dismiss the first, second, third, fourth, fifth, eighth, and ninth causes of action. Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges disparate treatment under circumstances giving rise to an inference of discrimination based on the plaintiff's race and sex (see Silvers v Jamaica Hosp., 218 AD3d at 818), a hostile work environment (see Perez v Y & M Transp. Corp., 219 AD3d at 1450), and retaliation in violation of NYSHRL and NYCHRL (see Moscatelli v Woodbury Med. Practice, P.C., 241 AD3d at 1454-1455;).

The defendants' remaining contention is without merit.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court