Opinion
INDEX NO. 162189/2019
02-22-2021
RICCARDO DI MAURO, Plaintiff, v. EQUINOX HOLDINGS, INC., EQUINOX HOLDINGS, LLC, BLINK HOLDINGS, INC., DAVID COLLIGNON, XAVIER MONTALVO Defendant.
NYSCEF DOC. NO. 16 PRESENT: HON. DAVID BENJAMIN COHEN Justice MOTION DATE 10/14/2020 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15 were read on this motion to/for DISMISSAL.
This action involves a claim of unlawful discrimination based on gender. The plaintiff is a former member of the defendant Blink's fitness club located at East 54th Street in Manhattan. Defendant David Colligan is Blink's Senior Vice President of Operations. Defendant Xavier Montalvo is a former member of the fitness club.
This action arises out of an altercation that occurred at the gym on the afternoon of November 14, 2019. The plaintiff arrived at the club for a workout and proceeded to enter the men's locker room in order to use the bathroom. He claims that while he was in the bathroom, defendant Montalvo took out his cellphone and began taking pictures of the plaintiff by holding his phone underneath the bathroom stall. The plaintiff confronted Montalvo and demanded that he accompany the plaintiff to the front desk in order to file a complaint.
As they walked over to the front desk, the plaintiff claims that he observed Montalvo attempting to delete the images of the plaintiff from his cell phone and flee the area. Another confrontation ensued and the plaintiff claims Montalvo assaulted him, causing him to sustain lacerations and other physical injuries. Montalvo was subsequently arrested and charged with assault.
When the plaintiff returned to the club approximately four days later, he was informed by defendant Colligan, as well as by other Blink employees, that his membership had been terminated. According to the complaint, the stated reason for the termination was that the plaintiff's actions had the effect of "putting members in a dangerous position." The plaintiff was advised by Colligan that he should not have reacted to or done anything about the assault or harassment that was perpetuated against him by Montalvo. The plaintiff subsequently learned that several of the club's employees were rejoicing over the plaintiff's membership termination, referring to him as "the little bitch with the red shoes."
In his complaint, the plaintiff asserts causes of action under the Executive Law, the New York City Human Rights Law, and the New York State Human Rights Law, alleging that Blink discriminated against him" because of his gender and for being the victim of sexual harassment and assault" when it terminated his membership. He also asserts negligence claims against Blink alleging that Blink had a duty to conduct a full and fair investigation concerning the alleged assault and harassment and the plaintiff's confrontation with Montalvo prior to terminating his membership. The plaintiff also asserts that Blink should have done more to protect him from Montalvo's assault. Finally, the plaintiff asserts a claim for defamation against Blink and Colligan. Blink and Colligan have moved to dismiss the complaint on the ground that it fails to state a cause of action against them.
Defendants maintain that the plaintiff cannot state a claim for discrimination based on his purported status as a victim of sexual harassment or assault because, in the context of public accommodations such as gyms, sexual harassment or assault victims are not designated as a protected class under either the City Human Rights Law or the State Human Rights Law. Although the City Human Rights Law does provide certain protections for "victim[s] of sex offenses or stalking" in the employment and housing contexts, it does not extend those protections to claims for discrimination in a fitness club or in any other place of public accommodation (see N.Y.C. Admin. Code § 8-107[4] [limiting protected classes in public accommodation claims to "race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service or alienage or citizenship status."]; N.Y.C. Admin. Code § 8-107.1 [limiting the protections afforded to "victim[s] of sex offenses or stalking" to the employment and housing contexts]). Similarly, the State Human Rights Law does not provide protection to assault or sexual harassment victims in the context of public accommodations (see N.Y. Exec. Law § 296[2][a] [limiting protected classes in public accommodation claims to "race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status"]).
Since the plaintiff's claims of discrimination based on his purported status as a victim of sexual harassment or sexual assault are not recognized under New York Law, they must be dismissed. The plaintiff's citation to Vasquez v Manhattan Physician Group is unavailing (see Vasquez v Manhattan Physician Group, 2018 WL 587135 [Sup. Ct., N.Y. County, January 29, 2018]). In Vasquez, the court found that the defendant medical office could be held liable under the City Human Rights Law because one of its employees (a doctor) allegedly sexually harassed one of its patients during a medical exam (id. at * 4-5). Here, by contrast, the plaintiff claims that he was assaulted and/or harassed by another customer of the gym. There is no legal basis to conclude that either the State Human Rights Law or the City Human Rights Law provides protection to a customer of a public accommodation who is sexually harassed or assaulted by another customer (see Alexander v Equinox Holdings LLC, 2019 WL 4643772, *3 [Sup. Ct., N.Y. County, September 18, 2019]. Accordingly, that claim is dismissed.
The plaintiff also claims that the defendants discriminated against him on the basis of his gender. Unlike the plaintiff's other claims of discrimination, this claim can be asserted against the moving defendants because gender is a protected class under the public accommodations provisions of the State Human Rights Law and City Human Rights Law. The problem is that the complaint does not allege any facts which, if proven true, would establish that the defendants treated the plaintiff differently from other members because he was a man. Although this case is still at the pleading stage, it is the obligation of the plaintiff to plead facts sufficient to demonstrate that he was subjected to differential or disparate treatment because of his membership in a protected class (see Schwartz v Consolidated Edison, Inc., 137 AD3d 447, 448 [1st Dept 2017]; Herrington v Metro-North Commuter R. Co., 118 AD3d 544 [1st Dept 2014]). Here, the complaint fails to allege any facts which would reasonably suggest that the plaintiff's membership was terminated because he was a man. It is not disputed that the plaintiff got into a physical altercation with another customer of the gym after the plaintiff accused him of sexual assault and harassment. The gym told the plaintiff that it was terminating his membership, as well as the membership of the defendant Montalvo, because their actions had put other gym employees and customers in danger. There are no allegations in the complaint that even suggest that the decision to terminate the plaintiff's membership had anything to do with his gender. The plaintiff does not allege that the gym ever treated male members differently than female members nor are there any factual allegations that would suggest that the club had any animus towards him based on his gender. Indeed, the plaintiff was a member of the gym for over two years before his membership was terminated.
In opposition to the motion, the plaintiff relies on the allegation that certain unidentified employees of the gym referred to him as the "little bitch with the red shoes" and rejoiced at the termination of his membership. Even if the comments were made, they do not establish that the decision to terminate the plaintiff's membership was motivated by gender bias. The plaintiff claims that the decision to terminate his membership was made by defendant Colligan. The complaint does not allege that Colligan made the derogatory remarks about the plaintiff or that he was even aware of them. Furthermore, even if defendant Colligan made the remarks or was aware of them, they would be insufficient to establish that the reason for the termination of plaintiff's membership was gender bias against men. There is no basis for concluding that the decision to terminate the plaintiff's membership was motivated by anything other than the fact that he was involved a fight with another member. Even if the plaintiff actions could arguably have been justified, this would not change the fact that the pleadings do not support a claim that the termination of his membership was motivated by gender bias. Thus, plaintiff has failed to state a cause of action for gender bias under the State Human Rights Law or City Human Rights Law.
As to the plaintiff's remaining claims, the court agrees with the moving defendants that they fail to state a cause of action. Plaintiff's negligence claim fails because the moving defendants did not owe the plaintiff any duty to investigate the subject incident prior to terminating membership. The parties' relationship was governed by the terms of the membership agreement which provided that the plaintiff's membership could be terminated at any time for any reason (see Exh 1, Membership Agreement ¶ 21). Again, while the plaintiff may reasonably believe that his actions were entirely appropriate, this belief does not negate the fact that the gym was free to disagree and terminate his membership on any basis. Accordingly, the plaintiff cannot allege that Blink owed, much less breached, any legal duty that is separate and independent from the membership agreement (see Clark-Fitzpatrick, Inc. v Long Island R.R. Co., 70 NY2d 382 [1987]; Sergeants Benev. Ass'n Annuity Fund v Renck, 19 AD3d 107, 111 [1st Dept 2005]).
The plaintiff also claims that he has a viable negligence claim against the moving defendants on the basis that they failed to protect him from defendant Montalvo's assault. "A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm" (Jaume v Ry Mgt. Co., 2 AD3d 590, 591 [2d Dept 2003]). However, this duty only arises when there is evidence establishing that the property owner had the ability and opportunity to control such conduct, and an awareness of the need to do so" (id. at 591; see D'Amico v Christie, 71 NY2d 76, 85 [1987]; Kaplan v Roberts, 91 AD3d 827, 829 [2d Dept 2012]; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389 [2d Dept 2002]). Here, the complaint has failed to allege facts which would establish that Montalvo's actions were foreseeable, or that the moving defendants had the ability and opportunity to control Montalvo's conduct towards the plaintiff (see Kaplan v Roberts, 91 AD3d at 829; Jaume v Ry Mgt. Co., 2 AD3d at 591). The alleged assault on the plaintiff took place in a bathroom stall in the men's locker room and there is no indication that Blink or any of its employees had notice of any prior incident of sexual assault or harassment involving Montalvo or any other gym member. Nor is there any basis to believe that the club could have prevented the altercation between the plaintiff and Montalvo that occurred at the front desk, an altercation that the plaintiff himself has admitted he initiated by attempting to prevent Montalvo from leaving the club. Accordingly, the plaintiff's negligence claims against Blink and Colligan are dismissed.
Finally, the plaintiff's defamation claims are deficient as a matter of law. As a threshold matter, plaintiff fails to meet the specificity requirements for a defamation claim under CPLR 3016(a). Indeed, the only alleged statement quoted by plaintiff in his Complaint—i.e., certain unidentified Blink employees purportedly referring to plaintiff as "the little bitch with the red shoes" (McPartland Affirm., Exh. A, ¶ 49) - fails to identify the alleged speaker(s) of the statement, much less identify when, where, to whom, or the manner in which the alleged statement was made (see Bell v Alden Owners, Inc., 299 AD2d 207, 208 [1st Dept 2002]; Sirianni v Rafaloff, 284 AD2d 447, 448 [2d Dept 2001]). Furthermore, absent special circumstances or contexts not present here, referring to an individual as a "bitch" or "little bitch" is constitutionally protected opinion speech that is not subject to defamation claims (see Pall v. Roosevelt Union Free School Dist., 144 AD3d 1004, 1004-05 [2d Dept 2016]; Stepanov v Dow Jones & Co., Inc., 120 A.D3d 28, 37 [1st Dept 2014]). It is at worst a vulgar but non-actionable statement of opinion about a person that is incapable of objective truth or falsity. Accordingly, the plaintiff's defamation claims fail to state a cause of action and must be dismissed.
Accordingly, the motion to dismiss is granted and the complaint is hereby dismissed in its entirety as against the defendants Blink and Colligan. 2/22/2021
DATE
/s/ _________
DAVID BENJAMIN COHEN, J.S.C.