In Leshchenko v. Go New York Tours, Inc., No. 162179/2025, 2026 WL 1269950 (N.Y. Sup. Ct. May 04, 2026), the court denied defendant’s motion to dismiss plaintiff’s sexual orientation-based discrimination claims asserted under the New York State and City Human Rights Laws.
The court summarized the facts as follows:
Plaintiff, who is gay, began working as an entertainer for Defendant on February 7, 2023 at 2 East 42nd Street, New York, New York. Plaintiff took on additional hours working as a server, busser, and runner in Defendant’s kitchen. Allegedly, on November 26, 2023, an individual named “Ricky” who was employed by Defendant and worked in Defendant’s kitchen repeatedly used homophobic language, including the derogatory slur “faggot.” When Ricky was confronted by a supervisor, Nico Torrez, and told to stop using that language, Ricky allegedly became defense and aggressive, continued using the derogatory language, and defended its use. Ricky allegedly continued using the language after Torrez left.
On November 27, 2023, several employees, including Plaintiff, sent a collective e-mail to Michael Crowley (“Crowley”), Defendant’s manager of entertainment, and Anissa Barbato (“Barbato”), Defendant’s director of entertainment, expressing their discomfort with Ricky’s actions. On December 1, 2023, Barbato responded to the e-mail by apologizing for Ricky’s behavior and informed Plaintiff and his coworkers that the situation would be addressed. Ricky was apparently told that he could not behave in a similar manner again.
On or about January 4, 2024, Plaintiff’s workspace changed, and he was relocated to a kitchen where he worked in close proximity to Ricky. Plaintiff claims that he feared working with Ricky because he previously made homophobic comments, and he often cursed and used profanity. On January 15, 2024, Plaintiff e-mailed Barbato and another supervisor complaining that he was uncomfortable working in close proximity to Ricky given Ricky’s prior homophobic statements. In response, Barbato allegedly wrote “[i]f you feel that you are working in a hostile work environment, then I accept your resignation.” Plaintiff responded, stating he did not resign and asked if he was fired. Barbato stated she was “replying to [Plaintiff’s] request to fire an employee, and that [she] accepts his resignation.” Plaintiff alleges he was merely asking for correction action or another solution and not to fire an employee and stated “I have not resigned, are you firing me for asking for safety at the workplace?” Barbato then responded “Yes, I accept your resignation, please return all uniform and equipment items. Your shifts have been removed from the schedule.” Plaintiff wrote again stating he did not resign and was simply asking for corrective action, but Barbato did not reply, and Plaintiff was not scheduled for any more shifts.
Turning to the law, the court explained:
On a pre-answer motion to dismiss under CPLR 3211(a)(7), the Court must give Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and accept all factual allegations as true (see Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). Employment discrimination cases are reviewed under notice pleading standards and need not plead a prima facie case of discrimination so long as there is fair notice of the nature of the claim and its grounds (see Vig v New York hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009]).
New York Local Law 35 § 1 expressly instructs courts to interpret NYCHRL liberally and independently of state and federal anti-discrimination laws to create an independent body of jurisprudence for the NYCHRL that is maximally protective of civil rights in all circumstances (see Chauca v Abraham, 30 NY3d 325 [2017]).
The standard for determining liability for discrimination-based claims under the NYCHRL is to ensure that discrimination plays no role in the disparate treatment of similarly situated individuals in the workplace (Williams v New York City Housing Authority, 61 AD3d 62, 76 [1st Dept 2009]). The NYSHRL, which was amended in 2019, mirrors the “play no-role” standard under the NYCHRL (Hosking v Mem’l Sloan-Kettering Cancer Ctr., 186 AD3d 68, 64 n.1 [1st Dept 2020] [“this amendment is remarkably similar to the City HRL’s Restoration Act”]; Golston-Green v City of New York, 184 AD3d 24, 35 [2d Dept 2020]).
The motion to dismiss the claims for retaliation under the NYSHRL and NYCHRL is denied. Accepting the facts alleged as true, giving Plaintiff the benefit of all favorable inferences, and considering New York applies a liberal notice pleading standard to discrimination claims, the Court finds that Plaintiff sufficiently alleged that as a gay man, he believed he was subject to an unsafe work environment based on being relocated to work in close proximity with an individual who was known to have recently engaged in a violent homophobic outburst (see, e.g. Sandiford v City of New York Dept. of Educ., 22 NY3d 914 [2013]). Immediately after complaining about having to work closely with an individual with a documented history of homophobic outbursts, Plaintiff was terminated, which shows a causal nexus between the protected activity (a complaint about alleged discrimination) and an adverse employment action (the termination) (see Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 25 [1st Dept 2014]). Rather than try to accommodate Plaintiff or seek ways to address his fears, which were not unfounded given the recent and allegedly aggressive homophobic outburst of a coworker he now had to share a cramped space with, Defendant fired Plaintiff immediately after Plaintiff complained.
The court concluded by declining to credit defendant’s arguments which are based on outdated case law that predates the amendments to the NYSHRL and NYCHRL, or non-binding federal court opinions.