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DEFAMATION CAUSE OF ACTION AGAINST DEFENDANT AND HIS EMPLOYER, UNDER A RESPONDEAT SUPERIOR THEORY, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defamation cause of action against defendant Polit and Polit’s employer, ADP, should not have been dismissed. Polit allegedly posted defamatory statements on defendant-restaurant’s Facebook page on behalf of Polit’s employer:

Plaintiffs commenced this action seeking damages arising from an allegedly defamatory statement authored by defendant David Thomas Polit and published by him to the Facebook page of plaintiff Crave L & D, LLC (Crave), a restaurant. Polit’s statement advised potential customers to stay away from the restaurant, alleging, among other things, health code violations, mistreatment of staff, and criminal activity. …

… [W]e conclude that plaintiffs sufficiently pleaded the existence of respondeat superior liability through … allegations, including, among other things, that Polit visited Crave for the sole purpose of soliciting plaintiffs to enter into a payroll service agreement with ADP, that Polit represented himself as ADP’s district manager and requested Crave’s business and payroll records in order to provide Crave with a quote for ADP’s services, that the post was based on Polit’s review of those records, that ADP encouraged Polit to use social media in connection with his sales work, that Polit published the post during regular business hours, and that ADP was aware of Polit’s use of Facebook and authorized his conduct. Elizabeth Votsis & Crave L&D, LLC v ADP, LLC, 2020 NY Slip Op 05311,  Fourth Dept 10-2-20

 

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