DECISION/ORDER Plaintiff Kevin Walsh (Walsh) commenced this action against his former employer to recover damages for alleged employment discrimination and retaliation, in violation of the New York City Human Rights Law (Administrative Code of the City of New York [Administrative Code] §8-107)(NYCHRL). Plaintiff’s Verified Second Supplemental Complaint (Complaint) alleges five causes of action: hostile work environment based on gender (first); hostile work environment based on actual or perceived sexual orientation (second); hostile work environment based on perceived disability (third); retaliation (fourth); and, as against Beane, aiding and abetting discrimination and retaliation (fifth). Defendants now move for summary judgment dismissing the complaint.BACKGROUNDDefendant George Beane (Beane) is the president and owner of A.R. Walker & Company, Inc. (Walker), a real estate management company in Manhattan. Plaintiff is a gay man who was employed by Walker for about 15 years, from 2002 until his employment was terminated in August 2017, and he held the position of office/building manager for most of his employment. Deposition of Walsh (PI. Dep.), Ex. C to Naylor Affirmation in Support of Defendants’ Motion (Naylor Aff.), at 254; Deposition of Beane (Beane Dep.), Ex. B to Naylor Aff., at 21, 27-28. Plaintiff’s sexual orientation was known to Beane. Id. at 36, 51.Plaintiff’s duties included, among other things, collecting rent, paying bills, responding to tenant inquiries and complaints, and supervising other employees’ work. PI. Dep. at 254-255; Beane Dep. at 21, 28-30. Walker employed about ten people. Id. at 18. Plaintiff was the only employee who worked in the management office with Beane; the others “floated” and worked in the buildings owned or managed by Walker. Id. at 18, 28. When working together in the management office, plaintiff and Beane sat at desks about nine feet away from each other. PI. Dep. at 242 277.Plaintiff argues that Beane sexually harassed him and created a hostile work environment in five different ways. See Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion, at 5-11. Beane disputes the events as described by plaintiff.First, plaintiff contends that, from 2002 until 2009 or 2010, Beane engaged in sexual conduct with a male friend in the management office when plaintiff was there. According to plaintiff, Hugo Diez (Diez), Beane’s friend and a former tenant in one of his buildings, visited the office on at least a monthly basis, and on numerous occasions, he would sit on Beane’s lap and the two would simulate sexual acts and make sexual gestures and sounds. PI. Dep. at 238, 240-241. Plaintiff claims that Beane also invited plaintiff to join in the activity. Id. at 244.Beane denies that any inappropriate sexual conduct occurred, and testified that Diez, who rented an apartment in a building owned by Walker from about 2002 to 2009, was a friend who came to the management office “from time to time” and monthly to deliver his rent, and did not come to see him specifically. Beane Dep. at 39, 40, 62-63, 67-68. He knew that Diez was gay (id. at 39), but denies that Diez ever sat on his lap, denies that he ever made any sexual sounds or gestures or engaged in simulated sexual activity, and denies that he ever kissed Diez on the lips, although Diez generally greeted people with a hug and kiss on the cheek. Id. at 68-69. Beane also denies that he ever asked plaintiff to sit on his knee. Id. at 70. Diez, in an affirmation, states that he was a friend of Beane and his wife, and would greet Beane with a kiss on the cheek, as is the custom in his native Argentina, and as was his custom with his friends. Diez Aff.,
4, 6. Diez left New York in or around 2009 and his visits to the office then stopped. Pl. Dep. at 241.Second, plaintiff alleges that Beane subjected him to unwelcome discussions about Beane’s visits to nude beaches and gay beaches. Plaintiff claims that Beane told him that he went to nude beaches on Fire Island and in New Jersey, that he enjoyed the company of naked men, that he had gone to a nude beach with Diez, and that he did not bring his wife because “women complicate things.” Id. at 229-231. Plaintiff claims that Beane made comments to him about visiting nude beaches from 2002 until 2014 or 2015. Walsh Aff., 3.Beane acknowledges that he went to nude beaches on six occasions in the last ten years or so, four times to Fire Island with his wife, and twice to Sandy Hook, New Jersey, including one time with Diez. Beane Dep. at 37-39. He testified that he went to a nude beach once with Diez because he liked to swim without clothes and Diez told him about a particular beach. Id. at 39-40. Beane stated that, as a matter of course, he told plaintiff where he was when he was not in the office, and told him on the six occasions that he was going to the beach (id. at 41), although he does not recall expressly stating to plaintiff that he was going to a nude beach. Id. at 43. He denied that he otherwise had conversations with plaintiff about what he did at the beach, other than to say that he liked to swim without his clothes on, which was not a secret. Id. at 44-45. He testified that he never told plaintiff that he was excited to be able to be naked on a beach, that it was a wonderful feeling, or that he was excited to be naked on a beach with other men. Id. at 45-46. He also denied that he discussed why he did not bring his wife or say women complicate things, or describe the bodies of men on the beach. Id. at 46. He also denied that he ever expressed interest in a male housekeeper he employed or ever kissed a man when he went to Fire Island or Sandy Hook. Id. at 49-50.Third, plaintiff alleges that Beane inappropriately discussed with plaintiff his interest in nude yoga for men, and described the naked bodies of men who participated; and, on four occasions, offered plaintiff videos of naked men’s yoga, and when plaintiff refused to take them, Beane called him a “prude.” Complaint,
