—[*1] Withers Bergman LLP, New York (Azmina N. Jasani of counsel), for appellants.

Alana Barran, New York, for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered January 30, 2012, which, to the extent appealed from, denied defendants' motion to dismiss the causes of action alleging retaliation and discrimination under the New York State Human Rights Law, unanimously affirmed, without costs.

The documentary evidence does not demonstrate conclusively that during the relevant time period defendant CRE Capital LLC employed fewer than four persons and therefore was not an employer as defined by the State Human Rights Law (Executive Law § 292 [5]). In particular, while CRE's quarterly tax form for the fourth quarter of 2008 indicates that three people were employed in each month of the quarter, it lists four employees' names. Thus, contrary to defendants' contention, the form does not on its face indicate that CRE employed only three people. It does not reflect that, as defendants explain for the first time on appeal, one employee left during the quarter and was replaced by another person, and there was no overlap in their employment. Concur—Saxe, J.P., Acosta, Renwick and Freedman, JJ. [Prior Case History: 2012 NY Slip Op 30208(U).]