Upon the foregoing papers, the motion by the Defendants seeking an order pursuant to CPLR § 3212 granting summary judgment in favor of the Defendants, dismissing the Plaintiff's amended complaint in its entirety, and awarding them attorneys' fees, court costs and disbursements, is determined as provided herein.

The Plaintiff, Toni DeMay, a female, is the former General Manager of the Wheatley Hills Golf Club, Inc. ("the Club"). She held the position of General Manager from 1999 through 2010. As the General Manager, the Plaintiff oversaw the general operations of the Club on a daily basis, was responsible for the dining operations, planned events and functions and worked closely with the Club's Presidents and House Chairmen. Prior to being General Manager, the Plaintiff had been employed at the Club as an Assistant Manager for seventeen years.

The Plaintiff worked pursuant to a series of employment agreements, the last of which ended on December 31, 2010. She alleges that she was denied continued employment at the Club because of gender discrimination and retaliation. In the amended complaint (Exhibit 8 to the moving papers), the Plaintiff alleges claims for gender discrimination, retaliation, aiding and abetting gender discrimination and retaliation, violation of New York Labor Law, breach of employment agreement, and quantum meruit.

The Club consists of 250 "bondholders," who purchase a bond for $12,500. Only men are bondholders and only men are allowed to be full Club members. Lesser memberships are available for wives, widows and daughters. Women are not permitted in the men's grill, the card room, a section of the bar and certain staircases and doorways. The Club is governed by a Board of Governors, composed of fifteen bondholders. The Board of Governors elects a President each year for a one-year term and runs the Club through a number of committees. The House Committee, whose Chairman is a member of the Board, has oversight of the food and beverage services of the Club as well as the facilities and works closely with the General Manager.

According to the Defendants, the Plaintiff's employment with the Club ended because "the club decided to go in a different direction" and "her position was no longer needed" the Club "went to a club manager" (McGinity transcript, p. 33, located within the Carillo transcript at Exhibit 3; see also McGinity transcript, p. 56). However, in an email dated December 2,1010, the Board of Governors had reported to the membership that it decided not to offer the Plaintiff a new contract and would be hiring a new General Manager in 2011 (Exhibit CC).

The Plaintiff had a four-year employment agreement with the Club from 2002 through 2005 and from 2006 through 2009. As General Manager, she reported to the President and the House Chair, from whom she received an annual evaluation.

The Defendant, Jack Lynch, became the House Chair in 2007, and his term ran through 2009. He continued as a Board member in 2010 and remained on the House Committee as ex-Chair. The Plaintiff outlined her difficulties with Mr. Lynch in two memos (Exhibit Q). According to the Plaintiff, in 2007, Mr. Lynch requested that she place pornographic magazines (Forum, Playboy, Penthouse) in the men's locker room/bathroom (DeMay transcript, p. 553-556). In 2007 or 2008, Mr. Lynch also suggested that the female servers dress up in sexy costumes on Wednesday nights (DeMay transcript, pp561-566). Mr. Lynch dealt with male department heads, but not with the Plaintiff (DeMay transcript, p.446). [*2]

In their 2008 evaluation, (Exhibit 10) then-president, James D'Addario and House Chair, Jack Lynch, jointly found that the Plaintiff met or exceeded expectations ^[FN1] in twenty-six categories. Two questions were not applicable. In the category entitled "Ensures the highest standards for food, beverage, sports and recreation, entertainment and other club services," the Plaintiff received the only mark of 1.5, requiring improvement, with the following explanation:

JD - I realize that food and service quality are subjective things. Comparing our club entertainment and other club services, I would say our food is better than average most of the time. Unfortunately I would like to see us always aspire to provide something extra-ordinary. We do it occasionally and I think it is well appreciated by the members. A few of the social events were excellent this year (Octoberfest, Italian night, wine tasting night). Recently I have noticed an extra effort to make the Wednesday night menus more varied and interesting. I am not the only one who has noticed; I have heard lots of positive comments from members. We should strive to improve the Summer Sunday casual dinners in the same way. I myself have been disappointed in the Sunday menus on occasion and would frequent the club more if there was more variety. I do not think price is the issue for everyone. You can have bargain dishes on the menu *** steak, hamburger, but a large portion of our membership is not concerned with the cost and are looking for a simple **** quality meal. I also think our membership's taste is for simple dishes and we should try to incorporate some home' style dishes, like a meatloaf or pot roast sandwich, pull pork, chicken parm on a roll, etc., on the lunch menus. I have seen this type of cuisine met with broad acceptance in Palm Springs (Arnold Palmer's Restaurant - http://www.arnoldpalmers.net/menu.asp#), at Cassique in Kiawah, and at Secession. I don't make these comments because I think the food is bad.' I just think we can always do and we should always try to do better.

In the 2009 evaluation, performed in 2010, outgoing-President, Archie Cheng, and House Chair, Jack Lynch, evaluated the Plaintiff separately (Exhibit 11). According to President Cheng, the Plaintiff met or exceeded expectations in all areas. His comment was the following:

Overall you have had an excellent year. When one considers the adversities of this past year (locker room, employee issues, membership decline, budgetary concerns, the Pro, dissension of the membership), it would have been easier for you to quit. However your professionalism and dedication persevered and the Club continued to provide the great majority of the Members the Wheatley experience they have learned to enjoy. All issues concerning the Club were brought to my attention in a timely manner and , when warranted, in complete confidence. Without your assistance, I would not have been able to perform my duties as President of the Club. In the [*3]coming year, continue to find ways to improve the Club. While it is your job to work within the budget, continue to find areas of improvement and the costs involved. It will then be the Board's decision to find the means or change the Club's philosophy of keeping costs down at the expense of the Food and Beverage operation.

In contrast, House Chair, Lynch, found that the Plaintiff needed improvement in three areas: (1) oversees the care and maintenance of all the club's physical assets and facilities; (2) properly manages all aspects of the club's activities to ensure and maintain the quality of products and services provided by the club; and (3) has ultimate authority over inter-departmental matters and implements policies concerning employer-employee relations. Mr. Lynch's comment on the evaluation was:

The new year brings a new Chairperson and 6 new members to the Board. This year is the year for change. You have the tools to adapt and overcome all obstacles.

At the annual membership meeting in 2009, although President Cheng praised the Plaintiff (Exhibit JJ, pp. 78-79), Mr. Gordon, a House committee member, asked the membership, "have you ever tried to train your wife to do anything? It didn't work, did it? Mr. Gordon then proceeded to complain about the food and beverage service (Exhibit JJ, p. 72).

President Cheng also praised the Plaintiff in his 2009 President's Letter (part of Exhibit L). Again, the Plaintiff's bonus in 2009 exceeded the amount set forth in her contract (Exhibits T and L).

Nevertheless, the Plaintiff was given a one-year employment contract for 2010. The new President was Cornelius McGinity. According to the Plaintiff, Mr. McGinity ignored her most of the time. Day-to-day communication between the President and the General Manager was necessary to enable the Plaintiff to do her job, but did not take place (DeMay transcript, p. 500). The new House Chair was Anthony Carillo, who testified that Ms. DeMay was uncooperative, and he received poor service when at the Club in 2009 and 2010 (Carillo transcript, pp. 41-42).

In April, 2010, an incident took place at the club, where the Plaintiff felt it necessary to speak to Mr. McGinity about alcohol consumption by Mr. Gordon's son and his golf group. Mr. McGinity spoke to Mr. Gordon, who was in the golf group behind his son's. When he returned to the clubhouse, Mr. Gordon admitted that he was upset (Gordon transcript, p. 25). According to Ms. DeMay, Mr. Gordon announced that he was "not going to take direction from that woman" (DeMay transcript, p.80). Mr. Gordon admitted to discussing his unhappiness with what happened with others that afternoon at the club. (Gordon transcript, p. 92) He insisted that service of 16 beers in 45 minutes was "not, in the least" sufficient to raise a concern. (Gordon transcript, p. 30)

Ms. DeMay testified that at a House Committee meeting later in April, 2010, during a discussion about bar service, Mr. Gordon shouted,

Wait a minute, who's running this Club? This is a men's club, isn't it? It's about time the men took this club back.

According to the Plaintiff, Mr. Russo criticized and defamed her to others in the spring of 2010, stating that she "should be listening to his male friends" (DeMay transcript, p. 643) and questioning "why the club would listen to a woman when they had these two restauranteurs" (DeMay transcript, p. 449). The Defendant, John Fives, a member of the House Committee from 2005 through 2010, allegedly sat in the Club each day and maligned her performance all day, (DeMay transcript, p.398) but always conceded that the Plaintiff "throws a good little party" (DeMay transcript, p. 450).

In the summer of 2010, a Review Committee was set up to review the Plaintiff's performance and report to the House Committee.

In August, 2010, the Plaintiff reached out to the Club's Human Resources Chair and Legal Chair regarding the hostility she was facing. She met with both and described her difficulties throughout the year with the individual Defendants.

At the semi-annual meeting of the membership on August 11, 2010 (Exhibit KK), Mr. Gordon asked whether the Board was "afraid to address any situation with the General Manager," and Mr. McGinity denied the statement.

Eleven (11) past presidents met, and then requested permission for a representative to talk to the Review Committee. The past presidents were told to summarize their points in a letter to the Board of Governors (Exhibit L). The past presidents included in their submission copies of correspondence to the Plaintiff in 2010 complimenting her performance.

The Review Committee made a presentation to the House Committee in September, 2010. Although the Defendants claim that the Review Committee unanimously recommended not to extend the Plaintiff's contract (Exhibit 9), the Plaintiff states that Dr. Caniano and Mr. D'Addario were not present for the vote.

The House Committee reported to the Board of Governors. According to the Plaintiff, the documentation submitted by the past presidents was handed out to the Board members, immediately prior to the vote, thereby depriving the Board of the opportunity to consider that evidence. The Board accepted the Review Committee's recommendation, which was also the recommendation of a majority of the members of the House Committee (Exhibit 9, p.2) and approved a motion to establish a Separation Committee to present a severance package to the Plaintiff.

The record contains a Severance and Consulting Proposal dated October 22, 2010 (Exhibit 19), which the Plaintiff declined. The Club replaced the Plaintiff with a male manager, Jay Carrieri, and gave him a one-year contract. That contract was renewed the following year.

The record also contains some emails in early December, 2010 (Exhibit MM), wherein the suggestion is made to change the job description for the Plaintiff's replacement in order to avoid the appearance of gender discrimination.

At the annual meeting on December 10, 2010 (Exhibit LL), questions were raised about the conflict between prior announcements of the Plaintiff's accomplishments, the decision not [*5]to renew her contract, and the lack of a process by managing members to reach out to a cross-section of the membership for input.

On December 31, 2010, the last day of her employment, the Club refused to pay the Plaintiff her unpaid accrued vacation of eight weeks (allegedly in the amount of $26,923.07) and deferred compensation for 2009 and 2010 (approximately $30,000). According to the Plaintiff, after the Club was sent a draft copy of the complaint, the deferred compensation was paid. Payment for the accrued but unused vacation time continues to be denied.

Summary judgment is the procedural equivalent of a trial (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). The function of the court in deciding a motion for summary judgment is to determine if triable issues of fact exist (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178, 182 [1994]). The proponent must make a prima facie showing of entitlement to judgment as a matter of law (Giuffrida v. Citibank Corp., 100 NY2d 72, 82 [2003]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

The evidence must be viewed in the light most favorable to the non-moving party (Branham v. Loews Orpheum Cinemas, Inc.,8 NY3d 931 [2007]). It is not the court's function on a motion for summary judgment to assess credibility (Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]; Cerniglia v. Loza Rest. Corp., 98 AD3d 933 [2nd Dept. 2012]).

Pursuant to New York State's Human Rights Law, it is unlawful "[f]or an employer ... because of the ... sex ... of any individual ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment" (Executive Law § 296 [1] [a]). "Discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]).

Sexual harassment based upon a hostile work environment exists " [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' " (see Morse v. Cowtan & Tout, Inc.,41 AD3d 563, 564 [2nd Dept. 2007], quoting Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]); Eastport Assoc., Inc. v. New York State Div. of Human Rights, 71 AD3d 890 [2nd Dept. 2010], (internal quotation marks deleted): Hilal v. New York State Div. of Human Rights, 57 AD3d 898, 899 [2nd Dept. 2008], lv. app. den. 12 NY3d 710 [2009]). "The totality of the circumstances" must be considered in making a determination as to whether a workplace may be viewed as hostile (Matter of Macksel v. Riverhead Cent. School Dist., 2 AD3d 731, 732 [2nd Dept. 2003]). Isolated remarks do not suffice (Id.).

A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, a plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Mittl v. New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]). The burden then shifts to the defendants to "to rebut the presumption of discrimination by clearly setting forth, through the introduction of [*6]admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" (Ferrante v. American Lung Assn., supra at 629, quoting Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d 937, 938 [1987]). If such evidence is produced, the presumption is rebutted and the factfinder must determine whether the proffered reasons are merely a pretext for discrimination (Ferrante v. American Lung Assn., supra at 630).

To defeat summary judgment in a gender discrimination case, a plaintiff must "show that there is a material issue of fact as to whether (1) the employer's asserted reason for the challenged action is false or unworthy of belief and (2) "more likely than not" the employee's gender was the real reason for the adverse action (Id.).

There is no question that the Plaintiff meets the first three requirements of her prima facie case of gender discrimination. The fourth requirement is established by the fact that the Plaintiff was replaced by a male.

The Defendants' two-fold rationale, to "go in another direction" with a club manager and unsatisfactory performance by the Plaintiff, is unsupported by documentation in the record. There is no written report from the Review Committee, nor from the House Committee. Indeed, even the minutes of the Board of Governors meeting simply states the recommendation of the Review Committee "to not extend the General Managers contract passed (sic) December 31, 2010" (Exhibit 9).

Furthermore, three of the individual Defendants either denied involvement or memory of the incident. Mr. Lynch testified "I'm not sure how I voted" (Lynch transcript, p. 128). Mr. Gordon could not "remember" the Review Committee and stated that he was "not exactly sure who was responsible" for the decision not to renew the Plaintiff's contract (Gordon transcript, p.102). Mr. Fives stated that he "was not aware of the board's decision" and that he did not have input into that decision (Fives transcript, p.33).

Mr. Russo admitted that he voted against renewal of the Plaintiff's contract because he "didn't see significant changes from 2009 and 2010 in the service or quality of the food" (Russo transcript, p. 29). Mr. Carillo stated that the problem was the service and quality of the food (Carillo transcript, at p.43) and admitted that the complaints about the food and service continued in 2011 (Id. at p. 46).

In contrast, by email dated August 9, 2010, President McGinity advised the membership that "our house and restaurant operations have been very solid this year thanks to Toni DeMay and the House Committee" (Exhibit R). Earlier in 2010, Mr. Carillo sent the Plaintiff an email responding to her inquiry as to his evaluation of new items being incorporated into the lunch/diner menus for April, with the statement, "like the additions very much" (Exhibit R). The past presidents' submission to the Board contained numerous letters, emails and Committee Reports, complimenting the Plaintiff's performance.

Overall, the evidence as to the Defendants' legitimate business reasons for the Plaintiff's adverse employment action, is conflicting. Even if the Defendants' reasons were found to rebut the presumption of discrimination, the Plaintiff has raised triable issues of fact as to whether those reasons are worthy of belief or a pretext for discrimination against her because of her gender. That she received generous bonuses in 2008 and 2009 and many accolades in 2010, raises a question of fact as to whether it was more likely than not that the Plaintiff's gender was the real reason for the Club's adverse action. Sufficient evidence has been presented to raise a triable issue of fact as to the [*7]existence of a hostile work environment at the Club in 2010 (Nelson v. HSBC Bank USA, 41 AD3d 445, 447 [2nd Dept. 2007]). This is not a case of a few isolated remarks.

The Plaintiff has presented evidence of (1) an undercurrent of resentment by some members toward her, as a female General Manager of the men's Club and (2) in 2010, with the new appointments to the Board, a tipping of the scales against her. Whether that happened because of the Plaintiff's gender or for legitimate reasons, is a question for the trier of fact. In addition, whether the decision to go "in a new direction" was part of a litigation avoidance strategy is a question for the trier of fact.

Viewing the evidence in the light most favorable to the non-moving party, credibility issues raised by the Plaintiff are sufficient to allow this case to go forward (Ferrante v. American Lung Assn, supra at 631). Consequently, summary judgment dismissing the first cause of action against the Club for gender discrimination must be DENIED.

In the second cause of action, the Plaintiff alleges a claim for retaliation, in violation of New York Executive Law § 296. Pursuant to Executive Law § 296 (7), an employer may not "retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified, or assisted in any proceeding under this article."

To establish a prima facie case of retaliation, the Plaintiff must show (1) that she was engaged in activity protected by Executive Law § 296; (2) the employer was aware that she participated in the protected activity; (3) she suffered from a disadvantageous employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action taken by the employer (Murphy v. Kirkland, 88 AD3d 795, 796 [2nd Dept. 2011], lv app den 19 NY3d 801 [2012]). As in the case of discrimination, once the prima facie case is made, the burden shifts to the employer to present legitimate reasons for its actions (Id). If the employer meets this burden, the plaintiff must then show that the reasons put forth by the employer are a pretext (see Brightman v. Prison Health Serv., Inc., 108 AD3d 739 [2nd Dept. 2013]).

Here the Plaintiff alleges that the Defendants retaliated "against her because of her contemporaneous complaints to the Club regarding the Club's hostile environment toward her and other women by terminating her and refusing to pay her for accrued vacation pay" (amended complaint, par. 89). The Plaintiff's complaints about gender discrimination constitute the protected activity in this case. Although the Defendants refer only to the Plaintiff's complaints in August, 2010, the record includes evidence of the Plaintiff's complaints to President McGinity regarding Mr. Gordon's discriminatory conduct at the House Committee meeting in April, 2010. The adverse employment action was the decision not to renew her contract. Given the lack of negative performance evaluations in the past, the temporal proximity of the Plaintiff's complaints to the decision not to renew the Plaintiff's contract is just close enough to meet the fourth element of causal connection (Board of Educ. of New Paltz Cent., School Dist. v. Donaldson, 41 AD3d 1138, 1141 [3rd Dept. 2007], lv. app. den. 10 NY3d 706 [2008]; see Clark County School Dist. v. Breeden, 532 U.S. 268, 273 [2001]).

The Defendants have met its burden of showing legitimate reasons for its actions. However, triable issues of fact are presented as to whether the Defendants' legitimate reasons were a pretext for retaliation (Sandiford v. City of New York Dept. of Educ, 94 AD3d 593 [1st Dept. 2012], affd — NY3d —, 2013 WL 5637754 [2013]). Based on the foregoing, summary judgment [*8]dismissing the second cause of action against the Club for retaliation must be DENIED.

In the third cause of action, the Plaintiff alleges a claim against the individual Defendants for aiding and abetting the alleged discrimination and retaliation against her by the Club. An individual may be liable under the Executive Law pursuant to two different provisions. Executive Law § 296 (1) renders it unlawful for an employer to discriminate on the basis of sex. An individual may be sued for the purposes of § 296 (1), but only if the individual is shown to have an ownership interest or the power to do more than carry out personnel decisions made by others (Patrowich v. Chemical Bank, 63 NY2d 541 [1984]). For the purposes of this action, that the individual Defendants are bondholders is not a sufficient ownership interest on which to predicate liability pursuant to Executive Law § 296 (1).

Executive Law § 296 (6) establishes "aiding and abetting" liability for § 296 (1) (a) violations, providing that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so." NY Executive Law § 296 (6). This broader basis for individual liability requires that the individual actually participate in the conduct giving rise to the discrimination claim (Gentile v. Town of Huntington, 288 F.Supp. 2d 316, 321-322 [E.D.NY 2003].

As the individual Defendants deny the discriminatory conduct that the Plaintiff alleges as the basis of her discrimination claim against the Club, triable issues of fact are presented (see Steadman v. Sinclair, 223 AD2d 392, 393 [1st Dept. 1996]; see also McDuffee v. JP Morgan Chase Bank, 35 Misc 3d 1230[A], 2012 NY Slip Op 50958[U] [Sup Ct., Nassau Cty, 2012]). For this reason, summary judgment dismissing the third cause of action must be DENIED.

In the fourth cause of action, the Plaintiff alleges a claim pursuant to Labor Law, Article 6, based on the Club's failure to pay her for unused vacation time. Vacation pay under Article 6 is expressly regulated by § 198-c (2). However, Article 6 of the Labor Law does not apply to the Plaintiff because she worked in an "executive" or "administrative" capacity and her earnings were "in excess of nine hundred dollars a week" (Labor Law § 198-c (3)). Individuals meeting this exclusion cannot bring claims under the Labor Law for vacation pay, or any other wage supplement (Romanello v. Intesa Sanpaolo S.p.A., 97 AD3d 449, 455-456 [1st Dept. 2012], affd as modified 22 NY3d 881 [2013]; Fraiberg v. 4Kids Entertainment, Inc., 75 AD3d 580, 583 [2nd Dept. 2010]). Therefore, summary judgment dismissing the fourth cause of action, must be GRANTED.

In the fifth cause of action, the Plaintiff alleges a claim for breach of the employment agreement in connection with the Club's failure to pay for her accrued but unused vacation days. An employer does not have a legal duty to pay an employee for unused vacation time in the absence of a contractual provision requiring it to do so. (see Garrigan v. Incorporated Vil. of Malverne, 12 AD3d 400 [2nd Dept. 2004]; Eisen v. Washington Natl. Life Ins. Co. of NY, 228 AD2d 293, 294 [1st Dept. 1996]). The Plaintiff testified that the Club had an agreement that employees with over ten years of service got four weeks of vacation pay (DeMay transcript, p. 86), and the amount was paid out at the end of the year (Id. at 90). On occasion, the vacation days were rolled over to the next year (Id. at 97-98). The Defendants rejected the Plaintiff's claim for payment for vacation days. On this record, a triable issue of fact is presented as to the Club's agreement with respect to the Plaintiff's vacation pay under the circumstances of this case. Summary judgment dismissing the fifth cause of action is DENIED.

In the sixth cause of action, the Plaintiff alleges a claim in quantum meruit for her [*9]accrued but unpaid vacation days. Quantum meruit is a claim based in quasi-contract. The existence of an express contract governing a particular subject matter precludes a claim for quantum meruit (Clark-Fitzpatrick, Inc. v. Long Island R. Co.,70 NY2d 382, 388 [1987]; Bruno Kearney Architects, LLP v. Rose, 104 AD3d 472 [1st Dept. 2013], affd 21 NY3d 1053 [2013]). As the Plaintiff alleges an express contract for payment of her accrued by unused vacation days, she may not also pursue a quantum meruit recovery theory. Therefore, summary judgment dismissing the sixth cause of action must be GRANTED.

The first, second, and fifth causes of action that have been sustained against the Club, are also alleged against President Carillo and Mr. Lynch, individually. However, no basis for such individual liability has been presented, other than in the third cause of action for aider and abettor liability. The Defendants seek judgment dismissing these causes of action against these individual Defendants, and on this record, such relief is appropriate. Summary judgment dismissing the first, second and fifth causes of action against the Defendants, Carillo and Lynch, must be GRANTED.

Accordingly, it is hereby

ORDERED, that the Defendants' motion seeking an order pursuant to CPLR § 3212 granting summary judgment in favor of the Defendants, dismissing the Plaintiff's amended complaint is GRANTED as to the fourth and sixth causes of action against the Defendant, Club; and it is further

ORDERED, that the Defendants' motion seeking an order pursuant to CPLR § 3212 granting summary judgment in favor of the Defendants, dismissing the Plaintiff's amended complaint is GRANTED as to the first, second and fifth causes of action against the individual Defendants, except as to the third cause of action; and it is further

ORDERED, that the first, second, third and fifth causes of action of the amended complaint are severed and continued; and it is further

ORDERED, that the Defendants' request for attorneys' fees and costs is DENIED.

This constitutes the order and judgment of this court.

DATED:Mineola, New York

November 29, 2013

________________________________

Hon. Randy Sue Marber, J.S.C.