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EMPLOYMENT DISCRIMINATION CASES ARE REVIEWED UNDER “NOTICE PLEADING” STANDARDS WHERE ONLY FAIR NOTICE OF THE NATURE OF THE CLAIM AND ITS GROUNDS ARE REQUIRED; HERE PLAINTIFF’S ALLEGATION THAT A SUPERVISOR STATED SHE RECEIVED HIGH EVALUATIONS BECAUSE SHE ENGAGED IN SEXUAL RELATIONS WITH HER SUPERIORS WAS SUFFICIENT TO SURVIVE DISMISSAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that a single remark by a supervisor may sustain an employment discrimination or hostile work environment claim. The court noted the more lenient pleading requirement for employment discrimination actions:

… [E]mployment discrimination cases are generally reviewed under notice pleading standards … . Indeed, a “plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds” … . In an action brought under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL), “[f]air notice is all that is required to survive at the pleading stage” … . * * *

Although a “single, isolated comment” or “stray remark” will not always suffice to sustain a discrimination or hostile work environment claim … , “a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace” could be actionable … . Here, where plaintiff alleged that her supervisor implied that she only received high evaluation scores because she was engaging in sexual relations with higher-ups, the alleged remarks and attendant hostile conduct were more than “petty slights and trivial inconveniences” … . Cummings v City of New York, 2026 NY Slip Op 00972, First Dept 2-19-26

Practice Point: Pleading standards are more lenient in employment discrimination cases. Fair notice of the nature of the claim and its grounds are sufficient to survive dismissal.

 

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PLAINTIFF WAS INJURED WORKING UNDER GTLF’S SUPERVISION; GTLF HAD HIRED ATRIUM, PLAINTIFF’S GENERAL EMPLOYER, TO HANDLE CERTAIN ASPECTS OF PLAINTIFF’S EMPLOYMENT, INCLUDING PAYROLL AND WORKERS’ COMPENSATION INSURANCE; PLAINTIFF RECEIVED WORKERS’ COMPENSATION BENEFITS FROM ATRIUM FOR A WORK-RELATED INJURY; GTLF, AS PLAINTIFF’S SPECIAL EMPLOYER, CANNOT BE SUED IN NEGLIGENCE BY PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined GTLF was plaintiff’s special employer and Atrium was plaintiff’s general employer. The Workers’ Compensation Board determined plaintiff was entitled to Workers’ Compensation benefits from Atrium, his general employer, for a work-related injury. Therefore, plaintiff could not sue GTLF, his special employer, in negligence based upon that work-related injury. GTLF was entitled to summary judgment:

For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer—a general employer and a special employer … . “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

“In determining whether a special employment relationship exists, ‘who controls and directs the manner, details and ultimate result of the employee’s work’ is a ‘significant and weighty feature,’ but is not determinative of the issue” … . Indeed, “[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive” … . Other principal factors to be considered include “who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … . General employment will be presumed to continue unless there is a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, in addition to a transcript of the plaintiff’s deposition testimony and a copy of the agreement between GTLF and Atrium, GTLF submitted an affidavit of its CEO, who averred, among other things, that after GTLF retained Atrium for “certain aspects of [the] plaintiff’s employment, including payroll and Workers’ Compensation insurance . . . [GTLF] maintained the same supervision and control of the plaintiff regarding his duties as a” brand ambassador. Based upon this evidence, GTLF established, prima facie, that GTLF was the plaintiff’s special employer … . Samuel v Petainer, 2026 NY Slip Op 00925, Second Dept 2-18-26

Practice Point: Consult this decision for insight into how to determine whether an employer is a general employer or a special employer for purposes of Worders’ Compensation benefits. If a worker receives Workers’ Compensation benefits from the worker’s general employer for a work-related injury, the employee cannot sue the special employer in negligence for that same injury.

 

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THIS LAWSUIT BY AN EMPLOYER AGAINST AN EMPLOYEE WHO ALLEGEDLY USED PLAINTIFF’S PROPRIETARY INFORMATION AFTER RESIGNING PRESENTS FACT-SPECIFIC ISSUES IN THE CONTEXT OF RESTRICTIVE COVENANTS IN THE EMPLOYMENT CONTRACT, COPYRIGHT LAW (PRE-EMPTION OF STATE LAW CLAIMS), TRADE SECRETS, AND THE PROPRIETY OF A PRELIMINARY INJUNCTION; ALL OF THESE COMPLEX ISSUES CANNOT BE FAIRLY SUMMARIZED HERE; THE DECISION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Copyright Act pre-empted some but not all of plaintiff’s breach of confidentiality and breach of employment contract claims, defendants’ cross-motions to dismiss sounding in unfair competition should not have granted; the complaint stated a cause of action for unfair competition based on misappropriation of proprietary information; the complaint stated a cause of action for violation of a restrictive covenant prohibiting disclosure of trade secrets; the record was insufficient to support Supreme Court’s ruling that plaintiff engaged in overreaching to obtain the restrictive covenants; and plaintiff’s motion for a preliminary injunction should have been granted. These complex, fact-specific issues cannot be fairly summarized here. With regard to pre-emption and the preliminary injunction, the court wrote:

“Section 301 of the Copyright Act preempts a state law claim if: ‘(i) the work at issue comes within the subject matter of copyright and (ii) the right being asserted is equivalent to any of the exclusive rights within the general scope of copyright'” … . Section 106 of the Copyright Act provides copyright owners the exclusive rights, among other things, to reproduce a copyrighted work, to prepare derivative works, to distribute copies of the work to the public, and to display the work publicly … . “A state law right is equivalent to one of the exclusive rights of copyright if it may be abridged by an act which, in and of itself, would infringe one of the exclusive rights” … . A claim is not equivalent “if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,” and in such circumstances, there is no preemption … . Here, contrary to the defendants’ contentions, the plaintiff sufficiently alleged an extra element—violation of a duty of confidentiality and breach of the employment agreement—in addition to acts of reproduction, adaptation, performance, distribution, or display, that renders the state right qualitatively distinct from the federal right, thereby foreclosing preemption … . * * *

To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor” (… see CPLR 6301). Here, the plaintiff showed that trade secrets existed and established a likelihood of success on the merits … . Premium Prods., Inc. v O’Malley, 2026 NY Slip Op 00918, Second Dept 2-18-26

Practice Point: Consult this decision for insight into the wide range of issues raised by the allegation that a former employee has appropriated and used the employer’s proprietary information after resigning.​

 

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PLAINTIFF’S CLAIMS OF DISCRIMINATORY NON-PROMOTION AND TERMINATION PURSUANT TO THE NYC AND NYS HUMAN RIGHTS LAW WERE SUFFICIENT AT THE PLEADING STAGE AND SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s claims of discriminatory non-promotion and termination pursuant to the NYS and NYC Human Rights Law were sufficient for the pleading stage and should not have been dismissed:

Plaintiff’s allegation that he, an African American, was terminated from his job by defendant, his employer, after making one mistake while two of his white coworkers who made similar mistakes were neither reprimanded nor terminated was sufficient to state a claim for discriminatory termination under the broad protections of the State and City HRLs … . Plaintiff specifically alleged that one of the white coworkers was an IT Help Desk Technician, the same position he held, and that the coworker performed substantially similar work under similar working conditions. He further alleged that he helped fix some of the mistakes that this coworker had made in the past. These allegations were sufficient at the pleading stage … .

In support of his cause of action for failure to promote, plaintiff alleges that his coworker was promoted to a job that he was already performing, and that the position was not posted prior to it being filled. These allegations are sufficient to meet plaintiff’s pleading burden as this Court has previously held that it is unnecessary for a plaintiff to allege that he applied for a promotion where he has alleged that promotions were typically made unannounced and unsolicited (id.) or where defendant failed to advertise the position … . Altidor v Medical Knowledge Group LLC, 2026 NY Slip Op 00870, First Dept 2-17-26

Practice Point: Consult this decision for insight into the pleading requirements for claims of discriminatory non-promotion and termination pursuant to the NYS and NYC Human Rights Law.

 

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PLAINTIFF WAS STRUCK BY A SHED WHICH WAS BEING TRANSPORTED AS AN OVERSIZED LOAD; AN EMPLOYER WHICH HIRES AN INDEPENDENT CONTRACTOR WILL GENERALLY NOT BE VICARIOUSLY LIABLE FOR THE CONTRACTOR’S NEGLIGENCE UNLESS THE CONTRACTOR IS TASKED WITH AN “INHERENTLY DANGEROUS ACTIVITY;” TRANSPORTING AN OVERSIZED LOAD BY TRUCK IS NOT AN “INHERENTLY DANGEROUS ACTIVITY;” THEREFORE THE EMPLOYER WAS NOT VICARIOUSLY LIABLE FOR THE TRUCK DRIVER’S NEGLIGENCE WHICH CAUSED PLAINTIFF’S INJURY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Powers, over a dissent, determined defendant ACS, which hired defendant St. Mary as an independent contractor, was not vicariously liable for the negligence of a driver working for St. Mary. Plaintiff was struck by a shed which was being transported by truck as an oversized load. Although the employer is usually not vicariously liable for the negligence of an independent contractor, there is an exception where the employer assigns an “inherently dangerous” task to the independent contractor. The majority concluded that moving a shed on a truck as an oversized load did not meet the definition of “inherently dangerous:”

​It is undisputed that St Mary was an independent contractor of ACS and, as a general rule, “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . Certain exceptions exist to this general rule, however. These exceptions include, as is relevant here, ” ‘where the employer . . . has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer’ ” … . * * *

… “[A]n actor who hires an independent contractor to do work that the actor knows or should know involves an abnormally dangerous activity is subject to vicarious liability for physical harm when the abnormally dangerous activity is a factual cause of any such harm within the scope of liability” (Restatement [Third] of Torts § 58). “[A]n activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage” … .

​… [N]o view of the facts presented on this motion supports the conclusion that the trucking of the oversized load in question was an inherently dangerous activity because there was not a significant risk of harm if reasonable care were exercised by those involved — namely, Rousell [the driver]. Plaintiff alleges that his injuries resulted from Rousell failing to take notice of his surroundings on one side of the vehicle and crossing the line separating lanes of travel. This ordinary incident of negligence — i.e., failing to appropriately observe one’s surroundings — is not inherent in the trucking of oversized loads and could have been avoided with the exercise of reasonable care. “Demanding though it may be, the activity of transporting [oversized loads on public highways] — successfully accomplished countless times daily — does not involve that sort of inherent risk for the nonnegligent driver and is simply not an inherently dangerous activity so as to trigger vicarious liability” … . Deitrich v Binghamton Rd. Elec., LLC, 2026 NY Slip Op 00557, Third Dept 2-5-26

Practice Point: Consult this opinion for insight into what constitutes an “inherently dangerous activity” which can trigger an employer’s vicarious liability for the negligence of an independent contractor.​

 

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DEFENDANTS OPENED A COMPETING HAIR SALON AND WRONGFULLY ACCESSED PLAINTIFF’S ACCOUNT SOFTWARE TO BOOK CLIENTS; THE COMPLAINT STATED CAUSES OF ACTION FOR TRESPASS TO CHATTELS, TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS AND BREACH OF THE EMPLOYMENT CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s causes of action for trespass to chattels, tortious interference with business transactions and breach of contract should not have been dismissed. Plaintiff alleged defendants opened a competing hair salon and accessed and used plaintiff’s computer program for booking clients by using plaintiff’s username and password:

To establish a cause of action to recover damages for trespass to chattels, the plaintiff is required to establish that the defendants “intentionally, and without justification or consent, physically interfered with the use and enjoyment of personal property in [plaintiff’s] possession” … . “Liability for trespass to chattels will be imposed only if the interference results in harm to the physical condition, quality or value of the chattel or if the owner is deprived of use of the chattel for a substantial time” … . Interference with information stored on a computer may give rise to trespass to chattels if the plaintiff is dispossessed of the information or the information is impaired as to its condition, quality, or value … . …

[To] “… set forth a cause of action sounding in tortious interference with business relations, a plaintiff is required to plead that the defendant interfered with the plaintiff’s business relationships either with the sole purpose of harming the plaintiff or by means that were unlawful or improper” … . “This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party” … . The wrongful means supporting a cause of action alleging intentional interference with a business relationship includes acts that constitute a crime or independent tort or other egregious wrongdoing … . Hello Beautiful Salons, Inc. v Dimoplon, 2026 NY Slip Op 00242, Second Dept 1-21-26

Practice Point: Using plaintiff hair salon’s credentials to access plaintiff’s business-account software to wrongfully book clients for defendants’ competing hair salon constitutes the tort of “trespass to chattels.”

 

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DEFENDANT HOME CARE AGENCY WAS HIRED BY DEFENDANT HEALTHCARE PLAN AS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THEREFORE THE HEALTHCARE PLAN WAS NOT LIABLE FOR THE ALLEGED ASSAULT, BATTERY AND NEGLIGENT SUPERVISION COMMITED BY AN EMPLOYEE OF THE HOME CARE AGENCY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that Lighthouse, the parent company of GuildNet, a long-term healthcare plan, could not be held liable for the assault, battery and negligence allegedly committed by an employee of Ellison Home Care Companion Agency, which provided healthcare aides who attended to plaintiff’s mother. Plaintiff alleged his mother was assaulted and battered by Shaw, who was employed by Ellison. The contract between GuildNet and Ellison described Ellison as an independent contractor. Because Shaw was not GuldNet’s employee, GuildNet was not vicariously liable for Shaw’s actions:

The assault, battery, and negligence claims should have been dismissed as against GuildNet on the ground that Shaw was not its employee at the time of the underlying events. GuildNet and Ellison’s Participating Provider Agreement expressly defined their relationship as one of independent contractors rather than employer-employee … . The record discloses that GuildNet had only incidental control and general supervisory power over Ellison’s work, which is insufficient to establish an employer-employee relationship … . Further, Ellison admitted that Shaw was its employee and acting within the scope of her employment at the time of the underlying events.

The remaining claim for negligent supervision should also have been dismissed. To the extent that it is predicated on GuildNet’s alleged failure to supervise Shaw despite knowledge of her “propensity for the sort of behavior which caused” [plainiff’s mother’s] injuries and death … , Shaw was not GuildNet’s employee, and the record is bereft of any information that could impute to GuildNet knowledge of her propensity either to commit assault or battery or to ignore a client in distress … . To the extent that the claim is instead predicated on GuildNet’s alleged failure to supervise the care that [plaintiff’s mother] received, namely, by failing to assign a competent agency to assign a competent home health care aide to work with [her], plaintiff has not identified how such a failure proximately caused [her] injuries and death, assuming that GuildNet even had a duty to do so in the first place … . Pander v GuildNet, Inc., 2026 NY Slip Op 00201, First Dep-15-26

Practice Point: A party which hires a party as an “independent contractor” and does not exercise supervisory control over the independent contractor’s work will not be vicariously liable for wrongdoing by the independent contractor.

 

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HERE AN INDEPENDENT CLEANING CONTRACTOR APPARENTLY CREATED A DANGEROUS FLOOR CONDITION WHICH INJURED PLAINTIFF; ALTHOUGH THE COMPANY WHICH HIRED THE INDEPENDENT CONTRACTOR WAS NOT LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE, MARSHALLS, THE RETAIL STORE WHERE THE INJURY OCCURRED, COULD BE VICARIOUSLY LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE BECAUSE MARSHALLS HAS A NONDELGABLE DUTY TO KEEP THE PUBLIC AREAS OF ITS STORE SAFE; WHETEHER MARSHALLS HAD NOTICE OF THE DANGEROUS CONDITION IS NOT AN ISSUE WHERE VICARIOUS LIABILITY MAY APPLY (FIRST DEPT).

The First Department noted that Marshall’s had a nondelegable duty to keep the public area of its store safe. The underlying fact of the case are not described but plaintiff was apparently injured because of the negligence of defendant cleaning subcontractor. The defendant which hired the subcontractor was not liable because the subcontractor was retained as an independent contractor. But the store was liable for the subcontractor’s negligence based upon its nondelegable duty to keep public areas safe (notice of the dangerous condition is not an issue):

The general rule is that a party who retains an independent contractor is not liable for that contractor’s negligent acts … . The record establishes that neither USM [the company which hired the independent contractor] nor Marshalls exercised control over how [the independent contractor] performed its cleaning tasks at the Marshalls store where plaintiff was injured, and that USM was not even present at the location at the time of the accident. * * *

… [T]he court should not have granted summary judgment dismissing the complaint as against Marshalls, which had a nondelegable duty to maintain the public area of its store in a reasonably safe condition. Therefore, Marshalls can be held vicariously liable for any negligence on the part of the subcontractor that caused the floor to become unsafe … . In light of the foregoing, we find it unnecessary to consider whether Marshalls established lack of notice of the hazardous condition. Jones v Marshalls, 2026 NY Slip Op 00087, First Dept 1-13-26

Practice Point: Here a retail store, Marshall’s could be vicariously liable for a slip and fall caused by the negligence of an independent cleaning contractor. The store has a nondelegable duty to keep its public areas safe. The question whether Marshall’s had notice of the dangerous condition is irrelevant where liability is vicarious. [Why is a retail store’s notice of the dangerous condition a crucial issue where no independent contractor is involved, but irrelevant when the cleaning is done by an independent contractor?]

 

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THE DISMISSAL OF PLAINTIFF’S FEDERAL EMPLOYMENT DISCRIMINATION (RETALIATION) ACTION PURSUANT TO THE NEW YORK STATE HUMAN RIGHTS LAW PRECLUDED A RELITIGATION OF THE RETALIATION CLAIMS IN STATE COURT PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined plaintiff’s employment discrimination (retaliation) cause of action pursuant to the New York City Human Rights Law (NYCHRL) was collaterally estopped by the dismissal of plaintiff’s action in federal court pursuant to the New York State Human Rights Law (NYSHRL):

Plaintiff asserts that his cooperation in [an] investigation [of another employee] provoked animus from his supervisors … who allegedly retaliated by reducing his business opportunities and ultimately terminating him.

Plaintiff alleged seven discrete adverse employment actions: (1) the artificial depression of his revenue; (2) denial of his request to transfer to a new position; (3) reassignment of his clients; (4) denial of funding to attend conferences; (5) a negative performance review; (6) no bonus in 2015; and (7) termination in August 2016. * * *

The City HRL is “uniquely broad and remedial,” requiring courts to construe its provisions “independently from similar or identical provisions of New York state or federal statutes” … . However, the requirement to interpret the City HRL under a more liberal lens does not relieve plaintiff of his burden to produce evidence of a retaliatory motive behind the adverse actions.

* * * Plaintiff’s arguments … invite relitigating facts already adjudicated by two federal courts after full and fair litigation. The federal courts expressly found no retaliatory animus after reviewing extensive evidence. … [T]his compels preclusion.

We emphasize that the City HRL’s liberal construction rule lowers the causation threshold, not the evidentiary one. Once the federal record established the absence of any retaliatory motive, no genuine factual issue remained even under the City HRL’s mixed-motive framework. To allow this case to go to a jury under the guise of liberal construction finds no support in the record. Abromavage v Deutsche Bank Sec. Inc., 2026 NY Slip Op 00052, First Dept 1-8-25

Practice Point: Here the federal courts’ dismissal of plaintiff’s employment discrimination (retaliation) claims pursuant to the New York State Human Rights Law (NYSHRL) precluded relitigation of those claims in state court pursuant to the New York City Human Rights Law (NYCHRL). Consult this opinion for insight into when collateral estoppel will be invoked to preclude a state action under the NYCHRL which raises retaliation claims identical to those dismissed by the federal courts under the NYSHRL. Although the NYCHRL lowers the causation threshold in comparison with the NYSHRL, it does not lower the evidentiary threshold.

 

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

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