was adamant that David supervised her work, and both the complaint and her deposition
testimony are replete with references to David going over plaintiff's work or assigning
work to her. [*5]Nonetheless, plaintiff does not dispute
that she answered Bulletproof's internet advertisement for a bookkeeper, and was
interviewed and hired only by Jeffrey, to work for Bulletproof. There is no evidence that
David, the alleged harasser, had either an ownership interest in Bulletproof, which paid
plaintiff's salary, or the power to do anything in that company. In fact, plaintiff testified
that when she started work, she understood that her supervisor would be Jeffrey and that
he was her boss (see plaintiff's EBT, p 27). Jeffrey testified that David had absolutely
nothing to do with Bulletproof and as far as Jeffrey knew, plaintiff went into David's
apartment only when Jeffrey was there and she was looking for him (see Jeffrey's EBT,
pp 56-57, 78). Despite that evidence, however, plaintiff is firm in her belief that David
was her supervisor.
The nature and magnitude of the brothers' respective businesses (Bulletproof and
Perfect World) are somewhat ambiguous. Jeffrey testified that during plaintiff's brief
tenure at Bulletproof, he was just starting to build up the business and doesn't remember
how many, if any, other people were employed by Bulletproof at that time (see Jeffrey's
EBT, p 21). Based on this testimony, defendants argue that they are immune from
liability for sexual harassment because both the state and city human rights laws do not
apply to employers with fewer than four employees (Executive Law § 292[5];
Admin Code § 8-102[5]). However, that argument is unavailing at this juncture in