since [*3]the court may not pass on issues of credibility
(Communications & Entertainment Corp. v Hibbard Brown & Company, Inc.,
202 AD2d 191 [1st Dept 1994]). Since summary judgment "deprives the litigant of his
day in court it is considered a drastic remedy which should only be employed when there
is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 NY2d 361,
364 [1974]; Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]), and should not
be granted where the issue is even arguable (see Sillman v Twentieth Century-Fox
Film Corp., 3 NY2d 395, 404 [1957], rearg den 3 NY2d 941 [1957]). "[F]actual
disputes are not enough; they must relate to material issues" (Forrest v Jewish Guild for the
Blind, 3 NY3d 295, 312 [2004], emphasis in original). The existence of a
material issue must be established by "evidentiary proof in admissible form," not "rank
speculation" (Tungsupong v Bronx-Lebanon Hospital Center, 213 AD2d 236,
237 [1st Dept 1995]). "[W]hen there is nothing more than a metaphysical doubt as to the
material facts,' summary judgment is proper" (Pemrick v Stracher, 67 F Supp 2d
149, 160 [EDNY 1999]).
"Summary judgment should be used sparingly' when, as is often the case in sexual
harassment claims, state of mind or intent are at issue.... However, plaintiff may not
avoid summary judgment by simply declaring that state of mind is at issue.... Summary
judgment applies no less to [discrimination] cases than to commercial cases or other
areas of litigation, ... and plaintiff must still offer concrete evidence from which a
reasonable juror could return a verdict in her favor" (Distasio v Perkin Elmer
Corporation, 157 F3d 55, 61-62 [2d Cir 1998], citations omitted).
II. State Human Rights Law