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An assault is the intentional placing of another in imminent apprehension of harmful or offensive contact or conduct. Mere words or threats alone are insufficient to constitute an assault. On the other, to maintain a cause of action for battery, plaintiffs must prove an intentional wrongful or offensive physical contact with the plaintiff without consent. As for intentional infliction of emotional distress, its elements are: extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. Lastly, the NYSHRL (Executive Law § 296(2)(a)) forbids discrimination by any employee of an place of public accommodation because of the sexual orientation of any person to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof. Section 292(9) provides that gymnasiums are included in the definition of public accommodation. The NYSHRL must be liberally construed to accomplish the purposes of the statute.
Defendant Town Sports International Holdings Inc. (TSI) owned and operated the New York Sports Club (NYSC) facility located in Manhattan. In December 2013, plaintiff Bryan Waters, a gay man and a member of the specific NYSC gym for four years, entered the gym for his workout. Thereafter, plaintiff returned to the locker room to use the shower, steam room and sauna. Two other men were using the sauna when plaintiff entered. Minutes later, defendant John Smith, entered the sauna and screamed homophobic slurs at the three men, particularly focusing on plaintiff. Plaintiff interpreted these remarks as accusations that he and the other men were engaging in homosexual activity in the sauna. Defendant yelled at plaintiff and the others, with his fist cocked back as if ready to attack the men at any moment, which made plaintiff felt threatened. As this occurred, defendant John Q, defendant’s janitor, stood outside the sauna door looking in through the glass. From outside, he yelled at these men, calling them disgusting homosexuals and shouted homophobic remarks. Defendants also berated plaintiff while he was naked and changing, which caused a commotion in the locker room, and great embarrassment to plaintiff. During this time, defendant John Roe, also an employee, stood by idly and did not make any attempt to defuse the situation. As plaintiff left the locker room, defendants chased after him while yelling along the way. Other gym members, who were familiar with plaintiff, watched how plaintiff was chased. Plaintiff has not since returned to the NYSC. In this action based on allegations of discrimination based on sexual orientation, defendants moved to dismiss pursuant to CPLR 3211 plaintiff’s complaint as to the causes of action based on violations of the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), assault, battery, and intentional infliction of emotional distress.
Should plaintiff’s complaint on violations of the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), assault, battery, and intentional infliction of emotional distress be granted?
As to assault, the court held that accepting plaintiff's allegations as true, and given that defendants failed to address plaintiff's contentions as to this claim in reply, plaintiff has stated a claim for assault against defendant janitor. To maintain a cause of action for battery, plaintiffs must prove an intentional wrongful or offensive physical contact with the plaintiff without consent. In this case, plaintiff alleged that defendant janitor tried to rip off his bag and cellphone from him. It was further alleged that this contact was intentional, without consent, and offensive, as it was accompanied by homophobic comments and threats of punishment, arrest and/or revocation of membership. And, defendants did not dispute these contentions in their reply. Accordingly, plaintiff stated a claim for battery against defendant janitor. Moreover, plaintiff properly pled a claim for intentional infliction of emotional distress against defendants’ pattern of conduct was extreme and outrageous, beyond all possible bounds of decency, and atrocious and utterly intolerable within a civilized society. Plaintiff was subjected to homophobic slurs and physical threats from these defendants that caused him severe embarrassment and fear, as a direct consequence, plaintiff sustained conscious physical and emotional pain and suffering, as well as great mental distress, shock, fright and humiliation. With regard to the discrimination claims under the NYSHRL and NYCHRL, the court held that the facts alleged that defendants enforced this purported written policy against homosexuals, thus, based on plaintiff's sexual orientation. Hence, the submission of the written policy, without more, failed to establish defendant’s entitlement to dismissal. As it also failed to establish that its employees would confront sexual activity among heterosexuals in the sauna in the same manner as its employees’ confronted plaintiff. The court also ruled that defendant failed to demonstrate that it cannot be held vicariously liable for its employees' alleged discriminatory actions, as it did not establish that the employees' actions were beyond the scope of their duties and/or its written policy. Accordingly, the court denied defendants motion in its entirety.