The complaint alleged discriminatory denial of use of a public accommodation based upon Executive Law § 296 (2) (a). Allegedly, as plaintiff, an African-American woman, exited Lord Taylor's Fifth Avenue store, a security sensor sounded, and when the security guard responded, he requested that plaintiff pass through the sensor a second time and made no similar request of a Caucasian woman who exited immediately before plaintiff and continued on her way. The sensor did not sound when plaintiff was scanned the second time and the security guard advised her that she was free to leave without searching her shopping bag or person.
The motion court erred in denying Lord Taylor summary judgment. In response to Lord Taylor's prima facie case that the momentary detention of plaintiff, by asking her to pass through the sensor a second time, had a legitimate, nondiscriminatory basis, i.e., the sensor's sounding ( see General Business Law § 218), plaintiff offered only speculative, conclusory statements insufficient to raise a triable issue of material fact ( see Scott v. Citicorp Servs., 91 NY2d 823, 825; Zuckerman v. City of New York, 49 NY2d 557, 562). No competent record evidence indicated that Lord Taylor's nondiscriminatory explanation of the incident was a pretext for racially disparate treatment, that plaintiff otherwise suffered racial discrimination or that the security guard even saw the Caucasian woman plaintiff described. If anything, the evidence suggests that Lord Taylor's conduct towards plaintiff during the incident was responsive and respectful. Hence, the issue of Lord Taylor's liability for the actions of the employee of its independent contractor/security firm is academic ( see Matter of Totem Taxi v. New York State Human Rights Appeal Bd., 65 NY2d 300, 304).