he in fact was not, the victim's mistaken conclusion must be a reasonable one.... Apparent
authority exists only to the extent it is reasonable for the third person dealing with the
agent to believe that the agent is authorized" (Burlington Industries, Inc. v.
Ellerth, 524 US 742, 759 [1998]). The rationality of plaintiff's belief, being a
question of fact rather than law, must be determined by the jury. It is the court's role at
this stage to determine if there is enough evidence for the jury to find plaintiff's belief
was rational. As discussed above, for purposes of defendants' summary judgment motion
the court must accept plaintiff's version of the facts as true. Plaintiff's sworn testimony
constitutes evidence that David was her supervisor and that he sexually harassed her.
How credible that [*6]evidence is is irrelevant at this
juncture. Given David's forced silence in this litigation, plaintiff's testimony is
unrebutted. Plaintiff is essentially in a default situation with respect to David —
and perforce Perfect World. In other words, plaintiff must still make out a prima
facie case against them at trial through competent evidence, but when it comes to "he
said, she said," only she gets to speak. The fact that plaintiff's testimony is directly
contradicted by Jeffrey merely raises a question of credibility for the jury to decide (see
Communications & Entertainment Corp. v Hibbard Brown & Co., Inc.,
supra, 202 AD2d 191).
Even plaintiff's own status is uncertain. To "recover under ... New York's Human
Rights Law, a plaintiff must demonstrate that he or she had an employment relationship
with the defendant employer" (Strauss v New York State Department of
Education, 26 AD3d 67, 69 [3d Dept 2005], citing Wimmer v Suffolk County