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PLAINTIFF WAS NOT HIRED BECAUSE HE TESTED POSITIVE FOR MARIJUANA WHEN HE WAS UNDER TREATMENT WITH MARIJUANA; THAT STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION (SECOND DEPT). ​

The Second Department determined that refusing to hire plaintiff for testing positive for marijuana when he was being treated with marijuana stated a cause of action for employment discrimination:

We find unavailing the defendant’s contention that the complaint failed to state a cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL [New York City Human Rights Law] because the defendant chose not to hire the plaintiff based only on his positive drug test and not his disability. Refusing to hire the plaintiff because he tested positive for marijuana while knowing that he was being treated with marijuana by a licensed physician for a medical condition effectively denied the plaintiff the opportunity of a reasonable accommodation, and therefore, under these circumstances, is appropriately recognized as a cognizable cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL … . Brouillard v Sunrun, Inc., 2023 NY Slip Op 04184, Second Dept 8-9-23

Practice Point: Refusing to hire plaintiff for testing positive for marijuana when plaintiff was under a doctor’s treatment with marijuana stated a cause of action for denying the plaintiff the opportunity of a reasonable accommodation.

 

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LYFT WAS NOT VICARIOUSLY LIABLE FOR THE ALLEGED SEXUAL ASSAULT BY A LYFT DRIVER; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD BASED UPON THE ASSURANCES OF SAFETY ON LYFT’S WEBSITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the vicarious liability and fraud causes of action against defendant Lyft, a livery cab service, should have been dismissed. The complaint alleged infant plaintiff used a mobile app to hire a Lyft driver, Singh, who began masturbating after she got in the car. The complaint failed to allege the driver was acting within the scope of his employment when the alleged sexual assault occurred. The complaint also failed to allege the elements of fraud based on the claim on the Lyft website that its service was safe and the drivers had been screened:

“[W]here an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment” … . “A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives” … . Here, assuming that Singh engaged in the sexual misconduct as alleged in the complaint, it is clear that such conduct was a departure from his duties as a Lyft driver and was committed solely for personal motives unrelated to Lyft’s business. As such, the sexual misconduct cannot be said to have been within the scope of employment … . Accordingly, the Supreme Court should have granted that branch of Lyft’s motion which was to dismiss the cause of action alleging vicarious liability under the doctrine of respondeat superior. …

“The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” … . “Each of the foregoing elements must be supported by factual allegations containing the details constituting the wrong sufficient to satisfy CPLR 3016(b)” … . “To establish causation, the plaintiff must show that defendant’s misrepresentation induced plaintiff to engage in the transaction in question (transaction causation) and that the misrepresentations directly caused the loss about which plaintiff complains (loss causation)” … .

Here, although the complaint alleges that the plaintiffs were aware of alleged representations on Lyft’s website that the Lyft service was safe to use, it fails to sufficiently specify which statements on Lyft’s website were false, and when those representations were made or accessed by the plaintiffs … . Moreover, the complaint fails to set forth any facts sufficient to show that any alleged misrepresentations on Lyft’s website regarding the safety of Lyft rides directly and proximately caused the plaintiffs’ alleged damages, which were otherwise alleged to have been caused directly by Singh’s sexual misconduct while operating the vehicle … . It is not sufficient to merely allege that the infant plaintiff would not have used the Lyft app but for Lyft’s alleged misrepresentations regarding safety … . Browne v Lyft, Inc., 2023 NY Slip Op 04102, Second Dept 8-2-23

Practice Point: In a complaint alleging the employer is vicariously liable for the acts of its employee, unless it is alleged the employee was acting within the scope of employment the cause of action will be dismissed. Here the alleged sexual assault by defendant Lyft driver was not alleged to be within the scope of the driver’s employment.

Practice Point: Here the plaintiff alleged she was sexually assaulted by defendant Lyft driver. The fraud cause of action alleged the assertions on Lyft’s website that the service was safe and the drivers were screened were false. That was not enough to state a cause of action for fraud.

 

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ALTHOUGH PETITIONER’S USING HIS CELL PHONE WHILE ON DUTY TO SEND EXPLICIT MESSAGES VIOLATED THE EMPLOYEE’S MANUAL AND WARRANTED PUNISHMENT, TERMINATION WAS TOO SEVERE A PENALTY (THIRD DEPT).

The Third Department, modifying Supreme Court, over a dissent, determined that petitioner, a civil service employee, was properly found to have violated the Employee’s Manual by using his cell phone while on duty to send explicit messages. However, termination was deemed too severe a penalty and the matter was remitted. The dissent argued termination was proper:

“Judicial review of an administrative penalty is limited to whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one’s sense of fairness” … . Petitioner was employed by respondent for 21 years at the time of the hearing and had a generally unremarkable disciplinary history….  Further, there is no indication that the messages were disseminated to any of his colleagues or subordinates or that there was a significant impact on the performance of his duties. To the contrary, the record establishes that petitioner consistently received strong evaluations for his work performance. Further, the record establishes that petitioner expressed remorse to respondent’s investigators, noting that he was not proud of his conduct, which he characterized as “unprofessional and even inappropriate.” Under these circumstances, we find that the penalty of termination “is so disproportionate to the offense and shockingly unfair as to constitute an abuse of discretion as a matter of law” and, accordingly, we remit the matter for consideration of a less severe penalty … . Matter of Brooks v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 03962, Third Dept 7-27-23

Practice Point: A civil service employee’s violation of general provisions of the Employee’s Manual, here the employee’s use of his cell phone to send explicit messages while on duty, warranted punishment . But termination was deemed too severe.

 

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THE PLAINTIFF, A MALE EMT, ALLEGED HE WAS TERMINATED BECAUSE OF HIS INVOLVEMENT IN A TRAFFIC ACCIDENT AND SEVERAL FEMALE EMT’S WERE INVOLVED IN COMPARABLE ACCIDENTS BUT WERE NOT TERMINATED; PLAINTIFF STATED A CAUSE OF ACTION FOR SEX DISCRIMINATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff emergency medical technician (EMT) stated a cause of action for sex discrimination. Plaintiff alleged he was terminated because he was involved in a traffic accident but several female EMT’s were involved in comparable accidents but were not terminated:

The NYSHRL [state human rights law] and the NYCHRL [city human rights law], prohibit discrimination in employment on the basis of sex … . “A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination” … . “Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic” … . Here, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges circumstances which give rise to an inference of sex discrimination, and adequately states a cause of action pursuant to the NYCHRL and the NYSHRL … . Silvers v Jamaica Hosp., 2023 NY Slip Op 03938, Second Dept 7-26-23

Practice Point: Here a male employee alleged he was terminated because he was involved in a traffic accident and several female employees were involved in comparable accidents but were not terminated. That allegation stated a cause of action for sex discrimination. 

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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A TEACHER MAY NOT ACCUMULATE CREDIT TOWARD TENURE IN ONE SCHOOL DISTRICT FOR WORK AS A SUBSTITUTE TEACHER IN ANOTHER DISTRICT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined a teacher may not accumulate credit towards tenure from working as a substitute teacher in a different district:

The narrow issue presented on this appeal, apparently one of first impression for an appellate court in this State, is whether a teacher may accumulate credit towards tenure, also known as “Jarema credit,” pursuant to Education Law § 3012, for time spent teaching as a regular substitute teacher in a district other than the district in which the teacher is seeking tenure. … [W]e conclude that a teacher is only entitled to “Jarema credit” for regular substitute service if said service was completed in the district in which the teacher is seeking tenure. Matter of DeNigris v Smithtown Cent. Sch. Dist., 2023 NY Slip Op 03783, Second Dept 7-12-23

Practice Point: A teacher may not accumulate credit toward tenure in one school district for time working as a substitute teacher in another district.

 

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PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected ti  a  “hostile work environment:”

Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over petitioner’s complaint inasmuch as petitioner had been a priest serving as the pastor of a church and the ministerial exception barred his claims. Inasmuch as there is no controlling United States Supreme Court or New York precedent and the federal courts that have addressed the issue are divided on the extent to which the ministerial exception applies to claims of a hostile work environment, we conclude that SDHR’s determination with respect to the hostile work environment claim is not arbitrary and capricious or affected by an error of law … . Matter of Ibhawa v New York State Div. of Human Rights, 2023 NY Slip Op 03585, Fourth Dept 6-30-23

Practice Point: There is a “ministerial exception” to employment discrimination claims by a priest against the diocese-employer. Here the priest’s hostile-work-environment petition was properly dismissed based on the exception.

 

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DEFENDANT SCHOOL SUPERINTENDENT’S DISCUSSION OF PLAINTIFF CROSS-COUNTY COACH’S TERMINATION WITH STUDENTS WAS ABSOLUTELY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant school superintendent’s (Brantner’s) statements to students about plaintiff cross-country coach (who was terminated) were absolutely privileged:

“The absolute privilege defense affords complete immunity from liability for defamation to an official [who] is a principal executive of State or local government . . . with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, plaintiff does not dispute that Brantner, as superintendent, is a government official to whom the absolute privilege would apply … . The question presented is whether Brantner was acting within the scope of her duties as superintendent when she met with members of the cross-country team in a classroom before school to discuss plaintiff’s termination.

We conclude that … Brantner’s statements were made during the course of the performance of her duties as a school superintendent and were about matters within the ambit of those responsibilities.  Brantner testified at her deposition that the school board asked her to speak with the students, who had appeared at school board meetings demanding to know why plaintiff had been fired …  In any event, even assuming, arguendo, that Brantner decided on her own to meet with the students, we conclude that she was acting within the scope of her duties when making the statements. Although Education Law § 1711 … does not specifically authorize superintendents to meet with students, the statute is not an exhaustive list delineating every action that a school superintendent is permitted to engage in, and the absence from the statute of a reference to a particular category of action does not mean that it is unauthorized. In our view, a school superintendent does not act ultra vires when speaking to students in a school setting about a matter related to their education or extracurricular activities. Panek v Brantner, 2023 NY Slip Op 03636, Fourth Dept 6-30-23

Practice Point: Because the defendant school superintendent was acting within the scope of her duties when she discussed plaintiff cross-country coach’s termination with students, her statements were absolutely privileged and will not support a defamation action.

 

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ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the state was properly found liable for the actions of corrections officers who conducted a strip search of claimant prisoner. The strip search protocol includes having a male inmate lift his testicles and spread his cheeks. Here the corrections officers repeatedly made claimant touch his genitals and then run his fingers along his gums. The officers made claimant do the same after inserting his finger in his anus. Although the officers were committing intentional torts, their actions were deemed to be within the scope of their employment, making the state vicariously liable:

The law is well established that intentional torts may still fall within the scope of employment, and the motivation for such conduct is not dispositive as to defendant’s liability; rather, that factor is but one of several for our consideration pertaining to whether such acts were foreseeable as “a natural incident of the employment” … . Said differently, “where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment”… . Although the correction officers’ actions may have been motivated in part by an intent to humiliate claimant, we disagree with defendant’s assertion that such intent was the sole motivation for each of the commands and that such actions were undertaken without any furtherance of defendant’s business .. . In this respect, the preponderance of the acts performed during the strip frisk and placement into observation did not significantly deviate from the mandates of the directive and were in fact required prior to claimant’s confinement in one-on-one observation. What rendered the incident demeaning, and the reason that claimant has a viable claim, is the product of the sequence in which those acts occurred. Moreover, the potential for such conduct is precisely that which was foreseen in the warnings contained in the directives, which instructed those officers conducting a strip frisk to be mindful of the sensitive nature of the search and to conduct themselves “in a manner least degrading to all involved.” M.K. v State of New York, 2023 NY Slip Op 03268, Third Dept 6-15-23

Practice Point: An employer can be vicariously liable for the intentional torts of employees if the employees were acting within the scope of their employment. Here corrections officers were conducting a required strip search of the claimant prisoner, but they did so in a mean-spirited and deliberately and profoundly degrading manner. The state was deemed vicariously liable for the officers’ intentional torts.

Practice Point: The decision does not specify the intentional torts for which the state was found liable. There is a public policy prohibiting “intentional infliction of emotional distress” claims against governmental entities, so that cause of action may not have been a basis for the state’s liability in this case. The Digest does not have a general “Intentional Torts” category. This decision was placed in the “Intentional Infliction of Emotional Distress” category only because it seems closest to the facts.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR NEGLIGENT SUPERVISION OF DEFENDANT INVESTMENT BANK’S EMPLOYEE WHO ALLEGEDLY DEFRAUDED PLAINTIFFS OF $25 MILLION TO COVER THE EMPLOYEE’S LOSSES; THE ARGUMENT THAT PLAINTIFFS COULD NOT SUE THE BANK BECAUSE THEY WERE NOT BANK CUSTOMERS WAS REJECTED (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, reversing the appellate division, determined plaintiffs (charitable foundation) stated a cause of action against defendants (investment bank) for negligent supervision of an employee who allegedly defrauded the foundation of $25 million. Plaintiffs were not customers of defendants (investment bank). Rather, plaintiffs were approached by defendants’ employee to invest $25 million, allegedly as part of a fraudulent scheme to cover the employee’s losses. The argument that plaintiffs could not sue because they were not defendants’ customers was rejected by the majority:

… [T]he complaint adequately alleged that defendants were on notice of the employee’s propensity to commit fraud prior to his interactions with plaintiffs and their resulting losses. * * *

When an employer has notice of its employee’s propensity to engage in tortious conduct, yet retains and fails to reasonably supervise such employee, the employer may become liable for injuries thereafter proximately caused by its negligent supervision and retention … . As every Department of the Appellate Division has recognized, a defendant is on notice of an employee’s propensity to engage in tortious conduct when it knows or should know of the employee’s tendency to engage in such conduct … . * * *

… [P]laintiffs were not customers of defendants, as that term is typically understood, but plaintiffs alleged that they were prospective customers who were solicited by [defendants’ employee] to participate in a financing arrangement related to one of defendants’ legitimate business deals, supported by defendants’ genuine documentation and information, which he was given access to by defendants as part of his employment. We hold that these allegations support the existence of a duty on the part of defendants to non-negligently supervise [the employee] for plaintiff’s benefit … . Moore Charitable Found. v PJT Partners, Inc., 2023 NY Slip Op 03185, CtApp 6-13-23

Practice Point: Here the complaint stated a cause of action for negligent supervision against an investment bank based on fraud allegedly committed by a bank employee, even though the plaintiffs were not customers of the bank. The Court of Appeals found a duty to supervise the employee for the plaintiffs’ benefit.

 

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