Buffong v Castle on the Hudson

[*1] Buffong v Castle on the Hudson 2005 NY Slip Op 52314(U) Decided on August 9, 2005 Supreme Court, Westchester County Lefkowitz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2005
Supreme Court, Westchester County

Eric Buffong, Plaintiff,

against

Castle on the Hudson, Defendant.



11634/05



Melissa Holtzer, Esq.

Louis Ginsberg, P.C.

Attorneys for Plaintiff

1613 Northern Boulevard

Roslyn, New York 11576

Robert L. Pitkofsky, Esq.

Starr Gern Davison & Rubin, P.C.

Attorneys for Defendant

103 Eisenhower Parkway

Roseland, New Jersey 07068-1050

Joan B. Lefkowitz, J.

Plaintiff, a transsexual individual, sues for damages claiming he was discriminated against in the workplace and asserts one cause of action under the New York State Human Rights Law (Executive Law §290 et seq.). Defendant moves to dismiss the complaint for failure to state a cause of action. CPLR 3211 (a) (7).

Section 296 (1) (a) of the Executive Law provided during the period the alleged incidents occurred:[FN1]

"§296. Unlawful discriminatory practices 1. It shall be an unlawful discriminatory practice:(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."

On a motion to dismiss for failure to state a claim, the Court must accept the facts [*2]pleaded as true and accord them every favorable inference but allegations of legal conclusions are not entitled to such consideration. Cron v. Hargo Fabrics, 91 NY2d 362, 366 (1998); Hispanic AIDS Forum v. Estate of Bruno, 16 AD3rd 294, 295 (1st Dep't 2005).

Unlike the New York City Human Rights Law which specifically includes transgendered persons (Administrative Code of the City of New York, §8-102 [23], 8-107 [14] [a]) the New York State Legislature has not adopted proposed legislation that would accomplish that fact. Hispanic AIDS Forum v. Estate of Bruno, supra, 16 AD3rd at 296. Nonetheless, prior to amendments to the New York City Code to specify transgendered persons as included persons, the courts had held that the prior definition, similar to the State definition in section 296 (1) (a) of the Human Rights Law, did cover transgendered persons. Richards v. United States Tennis Assn., 93 Misc 2d 713 (Supreme Ct. New York 1977); see, Maffei v. Kolaeton Indus., Inc., 164 Misc 2d 547 (Supreme Ct. New York 1995).

Transgendered persons are either male or female. Tronetti v. TLC Healthnet Lakeshore Hosp. 2003 W2 22757935 (WD NY 2003) (holding that plaintiff's, a transgendered person, claims under Title VII [42 USC §2000e et seq] and the New York State Human Rights Law stated viable causes of action). Case law supports the view that a transgendered person states a claim pursuant to New York State's Human Rights Law on the ground that the word "sex" in the statute covers transsexuals. Rentos v. Oce-Office Systems, 1996 WL 737215 (SDNY 1996); Richards v. United States Tennis Assn., supra, 93 Misc 2d 713; see, Maffei v. Kolaeton Indus., Inc., supra, 164 Misc 2d 547; cf., McGrath v. Toys "R" Us, 3 NY3rd 421, 434-35 (2004); Hispanic AIDS Forum v. Bruno, supra, 16 AD3rd 294.

This Court agrees that plaintiff's claim falls within the liberal interpretation to be accorded in New York State Human Rights Law. Gas Co. v. Appeal Board, 41 NY2d 84, 86, 89 (1976).

Submit order on notice.

- 2 -[*3]

DATED: August 9, 2005 ENTERED: s/ JOAN B. LEFKOWITZ, J.S.C.

- 3 - Footnotes

Footnote 1:The section was amended in 2005 (L.2005, ch. 75) but the amendment is of no moment to this case.