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COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT.

The Second Department determined plaintiff had stated causes of action for age discrimination and a hostile work environment. The court outlined the relevant law and applied the facts alleged to the legal principles. The law was described as follows:

To state a cause of action alleging age discrimination under the New York Human Rights Law (Executive Law § 296), a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she was actively or constructively discharged or suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she was terminated or suffered an adverse employment action, and (4) that the discharge or adverse employment action occurred under circumstances giving rise to an inference of age discrimination … . * * *

To state a cause of action alleging a hostile work environment under Executive Law § 296, a plaintiff must plead facts that would tend to show ” that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected class]'” … . The United States Supreme Court has observed that courts examining hostile work environment causes of action should consider, among other things, ” the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . Godino v Premier Salons, Ltd., 2016 NY Slip Op 05118, 2nd Dept 6-29-16

EMPLOYMENT LAW (COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/AGE DISCRIMINATION (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HOSTILE WORK ENVIRONMENT (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HUMAN RIGHTS LAW  (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)

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PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because he was improperly cross-examined about an admission allegedly made to his attorney:

The defendant contends that he was deprived of a fair trial because the Supreme Court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. Although the defendant failed to preserve this claim for appellate review … , we nevertheless reach it in the exercise of our interest of justice jurisdiction … . Allowing this questioning was error, as it concerned a statement the defendant allegedly made to his attorney … . The error was not harmless, as the proof of the defendant’s guilt was not overwhelming and the questioning was highly damaging to the defendant’s credibility, the jury’s assessment of which, compared to that of the complainant, was the central issue in the case … . Under the circumstances of this case, the court’s instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error … . People v Loiseau, 2016 NY Slip Op 05172, 2nd Dept 6-29-16

CRIMINAL LAW (PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined a motion to intervene in a foreclosure action was untimely and should have been dismissed. The potential intervenor (Shelepers) knew of the foreclosure action at the time the property was transferred to it but waited four months to bring the motion:

Intervention under CPLR 1012 and 1013 requires a timely motion … . Here, Shelepers purchased the subject property with the knowledge that this foreclosure action was pending, and yet it waited over four months before seeking leave to intervene. Under the circumstances of this case, Shelepers’ motion for leave to intervene in the action was untimely … . Castle Peak 2012-1 Loan Trust v Sattar, 2016 NY Slip Op 05111, 2nd Dept 6-29-16

CIVIL PROCEDURE (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)/INTERVENE, MOTION TO (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED.

The Second Department, reversing Supreme Court, determined the action should not have been dismissed pursuant to CPLR 3216 for neglect to proceed. The court noted that plaintiff need not show both and justifiable excuse and meritorious cause of action to avoid dismissal:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” … . While the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action … , a dual showing of justifiable excuse and meritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal of the action … . Bell v United Parcel Serv., Inc., 2016 NY Slip Op 05110, 2nd Dept 6-29-16

CIVIL PROCEDUR (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/NEGLECT TO PROCEED (PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/CPLR 3216 (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)

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PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over an extensive dissent, determined a pre-answer motion to dismiss the petition of a probationary corrections officer alleging wrongful termination should not have been granted. Petitioner had repeatedly informed his superior that an inmate had swallowed soap and bleach and needed medical care. After the inmate died, petitioner was terminated:

 

Petitioner Raymond Castro commenced this article 78 proceeding to contest respondent New York City Department of Correction’s (DOC) termination of his employment as a probationary correction officer. His termination occurred after an inmate died because petitioner’s superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate’s death and the federal prosecution of his superior. As fully detailed below, on the present record, Officer Castro’s conduct, both in response to the inmate’s medical emergency and during the investigation of the inmate’s death, appears appropriate. Likewise, Officer Castro’s termination, without an explanation, appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action. * * *

A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason … . The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason … . Matter of Castro v Schriro, 2016 NY Slip Op 05105, 1st Dept 6-28-16

 

EMPLOYMENT LAW (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (EMPLOYMENT, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/PROBATIONARY EMPLOYEE (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)

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ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The First Department explained when employer liability can be imposed under the single-employer doctrine. Although not discussed in the decision, the underlying lawsuit appears to allege employment discrimination. Plaintiff sued the Archdiocese in addition to the nursing home for which she worked. The First Department determined the Archdiocese's motion for summary judgment should have been granted:

The single-employer doctrine and the four factor test used in its application were originally created by the NLRB to determine whether two intertwined entities should be treated as a single employer in the labor dispute context, and subsequently upheld by the U.S. Supreme Court … . The Second Circuit adopted the doctrine for the purpose of determining whether a parent company can be considered an employer for the purpose of employment discrimination liability … . While the four factor test analyzes (1) interrelation of operations, (2) centralized control of labor operations, (3) common management, and (4) common ownership, the primary focus is on the second factor of centralized control of labor operations … . Centralized control of labor operations requires some showing of a central human resources department … . Here plaintiff fails to plead that the Archdiocese provided any human resources services for the nursing home, and plaintiff's allegations that church personnel regularly work at the nursing home, without more, do not suffice to show the Archdiocese controlled the Nursing Home Defendants's labor operations … . Batilo v Mary Manning Walsh Nursing Home Co., Inc., 2016 NY Slip Op 05096, 1st Dept 6-28-16

EMPLOYMENT LAW (ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SINGLE EMPLOYER DOCTRINE (ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED.

The First Department determined the trial court correctly found sanctions should be imposed on plaintiff (Arbor) for spoliation of evidence, but the dismissal of the complaint was too severe. The court offered a clear explanation of the relevant law:

“Failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: (1) the failure to issue a written litigation hold []; (2) the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and (3) the failure to cease the deletion of e-mail” … . Here, the motion court correctly determined that Arbor’s destruction of evidence was, at a minimum, gross negligence, since Arbor failed to institute a formal litigation hold until approximately two years after even Arbor admits it had an obligation to do so. The minutes further reveal the extent to which Arbor failed to identify all of the key players in the loan transaction, and failed to preserve their electronic records. Where, as here, the spoliation is the result of the plaintiff’s intentional destruction or gross negligence, the relevance of the evidence lost or destroyed is presumed … . Plaintiff failed to rebut this presumption. Accordingly, the motion court properly determined an appropriate sanction should be imposed on plaintiff. However, the sanction must reflect “an appropriate balancing under the circumstances,” … . Generally, dismissal of the complaint is warranted only where the spoliated evidence constitutes “the sole means” by which the defendant can establish its defense … , or where the defense was otherwise “fatally compromised” … or defendant is rendered “prejudicially bereft” of its ability to defend as a result of the spoliation … . The record upon renewal does not support such a finding, given the massive document production and the key witnesses that are available to testify … . Accordingly, an adverse inference charge is an appropriate sanction under the circumstances … . Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 2016 NY Slip Op 05065, 1st Dept 6-28-16

CIVIL PROCEDURE (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/EVIDENCE (CIVIL, DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/SPOLIATION (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)

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MANUFACTURER’S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY.

The Court of Appeals, in an extensive opinion by Judge Abdus-Salaam, with a concurring opinion, determined the manufacturer of valves used on Navy ships had a duty to warn of the dangers associated with the necessary replacement of asbestos packing made by a third-party.:

Under our precedent, “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” … . Additionally, the manufacturer must warn of dangers arising from the product's “intended use or a reasonably foreseeable unintended use” … . The manufacturer's duty also includes a legal obligation to issue warnings regarding hazards arising from foreseeable uses of the product about which the manufacturer learns after the sale of the product … . The duty “extends to the original or ultimate purchasers of the product, to employees of those purchasers and to third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn” … . * * *

Accordingly, we recognize a manufacturer's duty to warn of the peril of a known and foreseeable joint use of its product and another product that is necessary to allow the manufacturer's product to work as intended. Matter of New York City Asbestos Litig., 2016 NY Slip Op 05063, CtApp 6-28-16

NEGLIGENCE (MANUFACTURER'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)/PRODUCTS LIABILITY (MANUFACTURERS'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)/DUTY TO WARN (NEGLIGENCE, PRODUCTS LIABILITY, MANUFACTURER'S DUTY TO WARN EXTENDS TO JOINT USE OF ITS PRODUCT AND A PRODUCT MANUFACTURED BY A THIRD PARTY)

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SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined the SORA court did not err when it assessed 30 points for defendant's prior conviction (involving a different victim) for endangering the welfare of a child which did not involve a sexual offense. Based upon the language of the guidelines. the majority concluded the non-sexual offense could properly be considered subject to a possible downward departure. Here the SORA court, taking into consideration all the relevant evidence, was deemed justified in rejecting a downward departure:

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” … . Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure … . In this case, there were numerous aggravating factors not adequately captured by the [risk assessment] that countered defendant's argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant's dangerousness and risk of sexual recidivism” … . People v Sincerbeaux, 2016 NY Slip Op 05062, CtApp 6-28-16

CRIMINAL LAW (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/EVIDENCE (CRIMINAL LAW, SORA, SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SORA (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)

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POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, clarified the criteria for cross-examination of police officers who are defendants in a pending law suit alleging bad acts such as false arrest and fabrication of evidence. The court looked at three cases and applied the criteria to the facts of each. With respect to the one case which was reversed, the court wrote:

Specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct. Because defendant had the necessary good faith basis to ask about the prior bad acts alleged in the complaint, and there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the trial court abused its discretion in not allowing cross-examination into the acts alleged in the federal lawsuit based on the reasoning that the prejudicial value outweighed the probative value merely because the lawsuit was still pending. While we recognize that the scope of cross-examination rests in the sound discretion of the trial judge … , in this case, it was an abuse of discretion to restrict defendant’s right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion in this record that the main issues would have been obscured and the jury confused … . People v Smith, 2016 NY Slip Op 05061, CtApp 6-28-16

 

CRIMINAL LAW (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/POLICE OFFICERS (CRIMINAL LAW, EVIDENCE, (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/CROSS-EXAMINATION (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)

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