Lewis v. Bryan , 704 N.Y.S.2d 837 ( 2000 )

—In an action, inter alia, to recover damages for defamation, the counterclaim defendant Avenue Magazine appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated December 9, 1998, as denied its motion for summary judgment dismissing the defendant Jeanette Bryan’s claim alleging sexual discrimination, and the defendants Jeanette Bryan and Barry Koven cross-appeal from stated portions of the same order.

Ordered that the cross appeal by the defendants Jeanette Bryan and Barry Koven is dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is affirmed insofar as appealed from by the counterclaim defendant Avenue Magazine, with costs payable to Jeanette Bryan.

Under the circumstances of this case, there are material issues of fact as to whether Avenue Magazine (hereinafter Avenue) acquiesced in the discriminatory conduct by one of its employees against Bryan or subsequently condoned it (see, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684; Zuckerman v City of New York, 49 NY2d 557; Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44; Spoon v American Agriculturalist, 120 AD2d 857). Accordingly, the Supreme Court properly denied Avenue’s motion for summary judgment dismissing Bryan’s sexual discrimination claim. Santucci, J. P., Altman, Friedmann and Goldstein, JJ., concur.