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Hispanic Aids Forum v Bruno 2003 NY Slip Op 30009(U) October 8, 2003 Supreme Court, New York County Docket Number: Judge: Marilyn Shafer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: HON. MARILYN SHAFER
Justice

PART

36

HISPANIC AIDS FORUM, Plaintiff, -againstESTATE OF JOSEPH BRUNO, et. al., Defendants. INDEX NO.

1 I2428101
004

MOTION SEQ. NO.

The following papers, numbered 1 to 4,were read on this motion:
PAPERS NUMBERED

Notice of Motion - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits - Memorandum of Law

1

2,3
4

Cross-Motion:

i? Yes

J No

Upon the foregoing papers it is hereby ordered that defendant's motion to dismiss is decided as set forth below. Background Plaintiff Hispanic Aids Forum ("HAF") is a non-profit organization whose treatment and education services seek to reduce HIV transmission and secure necessary support services for Latinos in New York City who are affected by HIV/AIDS. HAF operates three communitybased offices in the City's largest Latino neighborhoods, including Lower Manhattan, Western Queens and the South Bronx. In March 1991, HAF entered into a two-year lease ("the lease") with the defendants for office space in the Bruson Building ("the building"), located at 74-09

37th Avenue in Jackson Heights. The defendants own, operate and manage the building. The
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lease was subsequently renewed without dispute. By 1995, HAF needed more space and the parties entered into a lease on March 15, 1995 for suite 306 on the third floor of the building, and another lease on December 15, 1995 for suite 305. Both leases signed in 1995 expired April 30,
2000. In addition to HAF, there are two other social services agencies and several attorneys'

offices located on the third floor that all share the common areas which include the bathrooms located in the main hallway. Although the bathrooms were often unlocked, each commercial tenant had keys to the women's and men's bathrooms. In 1996 or 1997, Carboni Travel leased office space down the hall from HAF. In late 1999, HAF alleges that one of its transgendered' clients informed HAF staff member Blanca Carranza that an employee for Carboni Travel had approached her in the bathroom and asked why she was using the women's bathroom (Complaint 7 5). Shortly after that incident, HAF alleges that one of Carboni Travel's employees told Carranza that they did not like "those men that look like women using the bathroom" ( Complaint f 6) to which Carranza explained why transgendered Latinas use the women's bathroom (Id.). Responding to the increasing need for HIV/AIDS services among transgendered Latinas, HAF initiated greater outreach and the number of transgendered clients being serviced at the Jackson Heights office increased. In 2000, a new support group for transgendered clients was formed at HAF and the bi-monthly meetings were regularly attended by approximately five or six transgendered clients. In Spring 2000, HAF and the defendants negotiated a new five-year lease
Transgendered people are those who have a strong and persistent cross-gender identification and experience persistent discomfort about their assigned sex "(Diagnostic and Statistical Manual of Mental Disorders 532-33 [4& ed.]). "Transgendered individuals include people who present as the other sex but take no hormones and have no surgery, people who take hormones to change their secondary sex characteristics but have no surgery, and people who have a range of surgical procedures to alter their anatomical sex. Only a small percentage of transgendered people have surgery, and still a smaller percentage have all the surgery required to change all aspects of the anatomical sex" (Id.).
1"

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R

for suite 306 and it was agreed that HAF would renovate suite 306. On March 3 1,2000, the defendants sent HAF a renewal lease for suite 306 to commence on May 1,2000. The lease was signed by HAF and mailed to the defendants on April 24,2000. On or about May 5,2000, HAF hand-delivered to the defendants' office manager a rent check for the first month, supplemental security deposit and the required insurance documents, which the manager accepted. HAF alleges that the manager mentioned that other tenants were complaining because "men who think they're women are using the women's bathroom" (Complaint 7 20). Toward the end of May 2000, HAF alleges it was told by the defendant manager that they were not going to sign the renewal lease because the defendants received complaints from other tenants and had issues with "men who think they're women using the women's bathrooms and women who think they're men using the men's bathrooms" (Complaint 7 21). HAF alleges that they were told by the defendants that the lease would not be renewed unless HAF prevented its transgendered clients from using common area in the building, including the main entrance and the bathrooms (Complaint 7 2). HAF alleges that several conversations took place between its attorney and the defendant property manager during which time defendant allegedly made several offensive comments and ridiculed HAF clients, including that he "just needed to get rid of `all these Queens' " (Complaint 7 24). HAF alleges instead of making efforts to accommodate its clients, on June 30,2000, HAF received an eviction notice demanding that suite 306 be vacated by July
3 1,2000 (Complaint 7 3). Defendants then commenced an eviction proceeding in housing court.

The parties entered into a stipulation where HAF agreed to vacate the premises by January 3 1, 2001, which it did. HAF then commenced this action against the defendants on the grounds of unlawful discrimination in refusing to rent to HAF because of its transgendered clients.
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Discussion Defendant brings this motion to dismiss the complaint pursuant to CPLR 0 321 1 for failure to state a cause of action. In a CPLR 9 321 1 motion to dismiss, the factual allegations of the complaint are deemed true and the affidavits submitted on the motion are considered only for the limited purpose of determining whether the plaintiff has stated a claim, not whether plaintiff has one (Wall Street Associates v Brodsky, 257 AD2d 526 [lstDept 19991). It is well settled that a pleading shall be liberally construed and will not be dismissed for insufficiency merely because it is inartistically drawn (Foley v D'Agostino, 21 AD2d 60 [ 1'` Dept 19641). The relevant inquiry is whether the requisite allegations of any valid cause of action cognizable by the state courts can be fairly gathered from the four comers of the complaint (Id.). "Defects shall be ignored if a substantial right of a party is not prejudiced" (Id. at 65). The complaint asserts four causes of action against the defendants. The first cause of action alleges discrimination on the basis of sex in violation of the New York State Human Rights Law (Complaint 7 3) discrimination on the basis of gender in violation of the New York City Administrative Code

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