EILEEN A. RAKOWER, J.

Aramark American Food Services, Inc. ("Aramark") is a vendor that contracted with defendant New York University ("NYU") to provide food services at the Weinstein Building located at NYU's downtown campus. Plaintiffs were both employees of Aramark. Plaintiff Michael Hellstrom was employed as a "Senior Food Service Director." Hellstrom is an openly gay man and is HIV positive. Plaintiff Donna Hall, an openly gay woman, was the head chef at the Weinstein building.

During the spring semester of 2008, Hellstrom was called into work to meet with an employee whose locker had been vandalized with racial and anti-gay slurs. Plaintiffs allege that both NYU security and NYPD investigated the incident. About a week later, plaintiffs' union representative informed Hellstrom that an Aramark employee, Cristian Borquez, complained that the employee whose locker was vandalized had been favored by Hellstrom because he was gay.

Plaintiffs allege that, following the incident, Borquez made several anti-gay remarks, which Hellstrom reported to Aramark's human resources department. In, or around November 2008, NYPD investigated another incident at the Weinstein building wherein a swastika and the phrase "kill the gays" was spray painted on the employee bathroom doors. This incident allegedly occurred soon after Hellstrom met with Borquez to discuss changing his schedule. Plaintiffs allege that on November 13, 2008, Aramark's human resources department "inadvertently learned of Hellstrom's HIV status." Afterward, plaintiffs allege that Hellstrom was discriminated against by Aramark employees and his union.

On or about December 18, 2008, plaintiffs met with Borquez, along with a union delegate and shop steward, and informed Borquez that he was being moved to another position. At that time Borquez, among other things, allegedly threatened Hall that he could kill her with his "bare hands." A police report was filed regarding this incident. Around January 2009, Borquez was placed on a temporary paid leave of absence. Plaintiff alleges that during that time Borquez was still allowed access to the Weinstein building by NYU security staff, that he continued to threaten and harass plaintiffs, and that Aramark took no action. Plaintiffs allege that, as a result of Borquez' behavior, Hellstrom could not come to work and was forced to go on permanent disability. Hall resigned her position.

Plaintiffs commenced this action, as against Aramark and NYU, for violation of The Americans with Disabilities Act of 1990; violation of New York Executive Law §296; discrimination and creation of a hostile work environment in violation of New York Executive Law §290 and the Administrative Code of the City of New York §8-101; violation of the express provisions of Section 40-c of the Civil Rights Law of the State of New York (as against Aramark only); assault; intentional infliction of emotional distress; and negligent supervision and retention of an unfit employee (as against Aramark).

Plaintiffs allege that NYU granted access to Cristian Borquez, an employee who had been harassing them, while that employee was on a temporary paid leave of absence, and that NYU failed to take reasonable security measures with regard to Borquez. NYU now moves to dismiss pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7), or, in the alternative, for summary judgment pursuant to CPLR 3212. Plaintiffs oppose. Aramark does not submit papers.

NYU, in support of its motion, submits: the complaint, the affidavit of Owen Moore, Assistant Vice President, Business Development-Campus Services of NYU, and the affidavit of Roanica Paisley, Senior Human Resource Manager for Aramark. Mr. Moore states, in his affidavit, that Borquez was not an NYU employee, and that NYU was never informed by Aramark that Borquez was on a leave of absence. Ms. Paisley states that it was not Aramark's custom, practice or policy to notify NYU when Aramark employees were on a leave of absence. Thus, NYU asserts, it had no basis to deny access to Borquez, who ordinarily worked at the Weinstein Building's food service facility.

Plaintiffs, in opposition, submit an attorney affirmation, and argue that they have stated a cause of action against NYU because the two incidents that occurred at the Weinstein Building put NYU on notice that there was a problem with Borquez.

Initially, the instant motion may not be treated as one for summary judgment, because issue has not yet been joined. (see 3212[a]). On a motion to dismiss pursuant to CPLR 3211(a)(1) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 [2007]) (internal citations omitted) The only evidence submitted by NYU are the affidavits of Owen and Paisley. Affidavits do not qualify as "documentary evidence," which would support a motion to dismiss under CPLR 3211(a)(1). (Williamson Picket Gross, Inc. v. Hirschfeld, 92 A.D.2d 289 [1st Dept. 1983]).

Nor can the affidavits be used to support NYU's motion pursuant to §3211(a)(7). Under a 3211(a)(7) analysis, the court may only consider "the allegations of the petition and . . . affidavits may be received for a limited purpose . . . to remedy defects in the complaint."(211 West 56th Street Associates v. Department of Housing Preservation, 78 A.D.2d 793 [1st Dept. 1980]).

CPLR 3211 provides, in relevant part:

In determining whether dismissal is warranted for failure to state a cause of action, the court must "accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory." (People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91 [1st Dept. 2003]) (internal citations omitted) (see CPLR §3211[a][7]).

There are no facts alleged by plaintiffs that would support their allegations that NYU "disparately treated" Hellstrom "based upon a perceived or actual disability, namely his HIV status." Indeed, plaintiffs only allege that Aramark learned of Hellstrom's HIV status, not NYU. Thus, the first cause of action, for violation of the Americans With Disabilities Act of 1990, must be dismissed.

New York Executive Law §290, or "The Human Rights Law," was enacted to, among other things, protect New Yorkers from discrimination in employment, and to ensure "that every individual within this state is afforded an equal opportunity to enjoy a full and productive life."

Plaintiffs baldly allege that NYU violated Executive Law §290 by disparately treating them based on their "perceived or actual sexual orientation and/or disability." Without facts to support that NYU security employees, who are alleged to have permitted Borquez onto the property, had knowledge of plaintiffs' actual or perceived sexual orientation, that cause of action must be dismissed. "While a complaint is to be liberally construed in favor of plaintiff on a § 3211 motion to dismiss, the court is not required to accept . . . legal conclusions that are unsupportable based upon the undisputed facts." (Robinson v. Robinson, 303 A.D.2d 234, 235 [1st Dept. 2003]).

"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." (Forest v. Jewish Guild for the Blind, 3 N.Y.3d 295 [2004]).

An employer's liability for mental anguish and humiliation suffered by an employee as result of hostile work environment caused by coworker may be "established by employer's failure, upon notification, to take corrective action." (State Div. of Human Rights v. Dom's Wholesale and Retail Center 18 A.D.3d 335 [1st Dept. 2005]).

Even if NYU knew, after investigating the alleged incidents, that Borquez was "a problem," NYU was not plaintiffs' employer. Thus, it cannot be held liable for failing to take corrective action against Borquez. Nor can plaintiff bring a claim under Administrative Law §8-101 (the New York City Human Rights Law), as it applies the same standards as the State law for assessing hostile environment claims. (Walsh v. Covenant House, 244 A.D.2d 214 [1st Dept. 1997]).

Executive Law §296 states (1)(a) states:

Plaintiffs do not state a cause of action for discrimination in violation of Executive Law §296, because they fail to allege, as they must, that NYU was their employer, as that term is used for purposes of Executive Law §296. (see Pepler v. Coyne, 33 Ad3D 434 [1st. Dept. 2006]).

As to the assault cause of action, an employer may be held liable for the international tort of its employee, if the act was committed within the scope of the assailant's duties, and that the employer "authorized, instigated or condoned the assault." (Kwak v. Wolfenson, 258 Ad2d 418 [1st Dept 1999]). NYU was not Borquez' employer. Thus, plaintiffs' allegation that "NYU failed to prevent employee Borquez' entrance . . . after he was put on a paid leave of absence, allowing the threatening behavior to continue. . ." does not fit into any cognizable legal theory.

"A cause of action for intentional infliction of emotional distress must be supported by allegations of conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community; such extreme and outrageous conduct must be clearly alleged in order for the complaint to survive a motion to dismiss." (McRedmond v. Sutton Place Restuarant and Bar, Inc., 48 A.D.3d 258,259 [1st Dept. 2008]). Plaintiffs' allegation, that NYU permitted access to Borquez during his leave of absence, does not meet the standard required in order to state a cause of action for intentional infliction of emotional distress.

Wherefore, it is hereby

ORDERED that the motion dismiss is granted, and the complaint is hereby severed and dismissed as against defendant New York University; and it is further

ORDERED that the remainder of the action shall continue.