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THE NYC DEPARTMENT OF EDUCATION PROPERLY DENIED PETITIONER-TEACHER’S REQUEST FOR AN EXTENSION OF AN EXEMPTION FROM THE COVID VACCINE MANDATE BECAUSE THE MANDATE IS NO LONGER IN EFFECT; SUPREME COURT SHOULD NOT HAVE ISSUED AN ADVISORY OPINION TO THE CONTRARY; THE AWARD OF ATTORNEY’S FEES WAS IMPROPER; THE PETITION DID NOT MEET THE CRITERIA FOR AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner, at teacher, was not entitled to an extension of an exemption from the COVID vaccine mandate (denied by the NYC Department of Education) and the award of over $24,000 in attorney’s fees. The vaccine mandate is no longer in force, and the matter did not meet the criteria for an exception to the mootness doctrine:

Courts are prohibited from rendering advisory opinions, and a matter will be considered academic unless the rights of the parties will be directly affected by the determination of the matter and the interest of the parties is an immediate consequence of the judgment … . Here, the vaccine mandate, which was never enforced against the petitioner, was repealed on February 9, 2023. Accordingly, the petition is academic … .

Furthermore, the exception to the mootness doctrine, which permits judicial review where the case presents a significant issue that is likely to recur and evade review, is inapplicable here … . The issue is not likely to repeat, as the vaccine mandate has been repealed and the possibility that some form of vaccine mandate might be enforced against the petitioner at some unknown time in the future is entirely speculative, and the petitioner does not raise novel questions … .

Since an award of attorneys’ fees is not authorized by agreement between the parties, by statute, or by court rule, the Supreme Court improperly awarded attorneys’ fees to the petitioner … ..  Matter of Ferrera v New York City Dept. of Educ., 2024 NY Slip Op 04317, Second Dept 8-28-24

Practice Point: Because the vaccine mandate for NYC teachers is no longer in force, the petitioner-teacher’s request for an extension of an exemption from the mandate was properly denied by the NYC Department of Education. Supreme Court’s grant of the extension and award of attorney’s fees was improper because courts are prohibited from issuing advisory opinions. In addition, the criteria for an exception to the mootness doctrine were not met.

 

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HERE THERE WAS A QUESTION OF FACT WHETHER THE CORPORATE VEIL SHOULD BE PIERCED SUCH THAT THE DEFENDANT HOSPITAL WOULD BE DEEMED VICARIOUSLY LIABLE FOR THE ALLEGED MALPRACTICE BY A CORPORATION OWNED BY A HOSPITAL EMPLOYEE AND WHOSE OFFICE WAS IN THE HOSPITAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant hospital was vicariously liable for the purported medical malpractice by a corporation (Meeting House) under a piercing-the-corporate-veil theory:

Generally, … piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … . “‘[T]he corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego'” … . In determining whether to pierce the corporate veil, “[g]enerally considered are such factors as whether there is an overlap in ownership, officers, directors and personnel, inadequate capitalization, a commingling of assets, or an absence of separate paraphernalia that are part of the corporate form, such that one of the corporations is a mere instrumentality, agent and alter ego of the other” … .

… Meeting House failed to adhere to corporate formalities, such as holding board of directors’ meetings. Meeting House was owned and controlled by an employee of the hospital, whose office was in the hospital, pursuant to a contract with the hospital. The hospital had sole discretion over the number of shares and who would be the shareholders. Meeting House was also undercapitalized, since it appears that its assets consisted of a non-interest-bearing loan from the hospital … . Its budget and any amendments thereto had to be approved by the hospital. The common ownership, leadership, and control, and the common location on the grounds of the hospital and in the hospital itself, raised a triable issue of fact as to whether the corporate veil should be pierced … . Midson v Meeting House Lane Med. Practice, P.C., 2024 NY Slip Op 04261, Second Dept 8-21-24

Practice Point: Consult this decision for what it takes to raise a question of fact whether the corporate veil should be pierced in support of a vicarious liability theory.

 

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THE SIX-MONTH EXTENSION FOR COMMENCEMENT OF AN ACTION UNDER CPLR 205(A) IS NOT AVAILABLE WHEN THE PRIOR ACTION WAS VOLUNTARILY DISCONTINUED; HERE THE CPLR 205(A) EXTENSION WAS NOT AVAILABLE FOR A STATE ACTION WHICH PLAINTIFF ATTEMPTED TO COMMENCE AFTER VOLUNTARILY DISCONTINUING A SIMILAR FEDERAL ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the six-month extension for the commencement of an action codified in CPLR 205 (a) was not available to the plaintiff because a similar federal action had been voluntarily discontinued by the plaintiff. Plaintiff had sued in federal court for violations of the Fair Labor Standards Act and the Labor Law. Plaintiff discontinued that action and brought a state action under the Labor Law. Because plaintiff could not take advantage of CPLR 205 (a), the state action was time-barred:

“CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences” … . However, the six-month grace period provided under CPLR 205(a) is not available where the previous action has been terminated by “a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits” … .

CPLR 205(a) was not applicable to this action, since the similar and timely commenced federal action was terminated by means of a voluntary discontinuance. A discontinuance effectuated pursuant to either CPLR 3217(a) or (b) constitutes a voluntary discontinuance for purposes of CPLR 205(a) … . Pursuant to a similar provision in the Federal Rules of Civil Procedure, an action may be voluntarily dismissed either by a stipulation or notice, pursuant to Federal Rules of Civil Procedure rule 41(a)(1), or by a court order, pursuant to Federal Rules of Civil Procedure rule 41(a)(2). Thus, since the discontinuance here was affirmatively requested by the plaintiff and was granted pursuant to Federal Rules of Civil Procedure rule 41(a)(2), CPLR 205(a) was not available to extend the limitations period beyond the termination of the federal action … . Castillo v Suffolk Paving Corp., 2024 NY Slip Op 04239, Second Dept 8-21-24

Practice Point: Here plaintiff voluntarily discontinued a federal action and brought a similar action in state court. Because the federal action was voluntarily discontinued, the six month extension for commencing an action under CPLR 205 (a) was not available to plaintiff and the state action was time-barred.

 

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ABSENT AN ORDER BASED UPON AN EXCEPTION TO THE SECRECY PROVSIONS IN TAX LAW SECTION 697, THE NYS DEPARTMENT OF TAXATION AND FINANCE WAS NOT REQUIRED TO TURN OVER TAX FORMS SUBMITTED BY THE CORPORATE DEFENDANTS IN THIS LABOR LAW ACTION TO RECOVER UNPAID WAGES AND TIPS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ subpoena demanding that the nonparty NYS Department of Taxation and Finance turn over tax forms submitted by the corporate defendants should have been quashed. The plaintiffs brought a class action to recover unpaid wages and tips pursuant to Labor Law 196-d. The relevant portion of the Tax Law prohibits disclosure of the tax forms absent an order based upon an exception in the controlling statute:

The Supreme Court should have granted that branch of the Department’s motion which was to quash so much of the subpoena as sought “All Form NYS-45 for each quarter from 2009 until present submitted by or related to” the corporate defendants pursuant to Tax Law § 697 (see CPLR 2304). The Department established that it should not be required to disclose the information contained in any return filed with it, as, pursuant to Tax Law § 697(e)(1) and (2), “‘[e]xcept in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful’ for the [D]epartment or any of its officers to divulge the information contained in any return filed with it, and . . . it ‘shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court'” … . “[A] ‘proper order’ is one which either effectuates the enumerated exceptions within the statute or which arises out of a case in which the report is itself at issue, as in a forgery or perjury prosecution” … . In opposition, the plaintiffs failed to identify any exceptions to the statute … or demonstrate extraordinary circumstances … . Cornejo v Rose Castle Corp., 2024 NY Slip Op 04193, Second Dept 8-14-24

Practice Point: The NYS Department of Taxation and Finance is not required to turn over tax forms pursuant to a subpoena absent a court order based upon an exception to the privacy/secrecy provisions in Tax Law section 697​.

 

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DEFENDANT FARM’S EMPLOYEE WAS DRIVING FARM EQUIPMENT AT NIGHT WITHOUT LIGHTS WHEN PLAINTIFF COLLIDED WITH IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT UNDER A NEGLIGENCE-PER-SE THEORY AND UNDER RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff collided with a manure spreader with no lights which was being towed by a tractor at night (a violation of the Vehicle and Traffic Law). In addition, the employer of the driver was deemed liable under respondeat superior:

“[A] defendant’s unexcused violation of the Vehicle and Traffic Law constitutes negligence per se” … and here, plaintiff met his initial burden on the motion by submitting evidence that the manure spreader was being operated on a public roadway, more than one-half hour after sunset, without “at least two lighted lamps on the rear, one on each side” in violation of Vehicle and Traffic Law § 375 (2) (a) (3), and without “signaling devices and reflectors” in violation of section 376 (a), which constitutes negligence per se … . …

“The general rule is that an employee acts within the scope of his [or her] employment when [the employee] is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee’s activities” … . Here, plaintiff established that Sanchez-Rodriguez [the tractor driver] was “acting within the scope of his employment” at the time of the accident … . Durkee v Sanchez-Rodriguez, 2024 NY Slip Op 04002, Fourth Dept 7-26-24

Practice Point: Driving farm equipment on a public road at night without lights constitutes negligence per se.

 

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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“UNITED METHODIST CHURCH” IS NOT A JURAL ENTITY WHICH CAN BE SUED IN THIS CHILD VICTIMS ACT LAWSUIT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, reversing (modifying) Supreme Court, determined the “United Methodist Church” is not a jural entity which can be sued. In this Child Victims Act proceeding, the complaint alleged plaintiff was abused by an employee of the defendants United Methodist Church General Conference … , United Methodist Church Northeastern Jurisdiction New York-Connecticut District, New York Annual Conference of the United Methodist Church, United Methodist Church Long Island East District, Long Island East District of the New York Annual Conference of the United Methodist Church, … United Methodist Church of Woodbury New York. [and the] United Methodist Church … . The complaint alleged … United Methodist Church “is a not-for profit religious association and/or organization conducting business in the State of New York and organized and existing under the laws of the State of New York with its principal place of business located at c/o GFCA, 1 Music Circle North Nashville, Tennessee 37203.”

… [A]pplying neutral principles of law, we determine … the defendants established that United Methodist Church is not a jural entity with the capacity to be sued. Dismissal pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction is warranted where a named defendant is not a legal entity amenable to suit … . New York law recognizes that “[a]n action or special proceeding may be maintained, against the president or treasurer” of an “unincorporated association” “upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally” (General Associations Law § 13; see CPLR 1025 [“Two or more persons conducting a business as a partnership may sue or be sued in the partnership name, and actions may be brought by or against the president or treasurer of an unincorporated association on behalf of the association in accordance with the provisions of the general associations law”]). Although the term “unincorporated association” is not further defined by statute, New York courts have determined that “[i]t is only when a partnership has a President or a Treasurer that it is deemed an association within the meaning of” General Associations Law § 13 … . As such, “[a]n unincorporated association . . . has ‘no legal existence separate and apart from its individual members'” … .

* * * [W]e conclude that the defendants established that United Methodist Church … is a religious denomination with a single purpose—”to make disciples for Jesus Christ for the transformation of the world”—and not a jural entity amenable to suit as an unincorporated association. It is undisputed that United Methodist Church does not have a principal place of business, does not have its own offices or employees, and does not and cannot hold title to property, and there is no proof in the record that United Methodist Church has incorporated or held itself out as a jural entity in any other jurisdiction. Moreover, the defendants demonstrated at the hearing that United Methodist Church, as such, does not have any involvement in the staffing or the removal of clergy or staff at the local church level. Chestnut v United Methodist Church, 2024 NY Slip Op 03726, Second Dept 7-11-24

Practice Point: Here the “United Methodist Church” was deemed a nonjural entity which cannot be sued in New York–criteria explained in depth.

 

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A MUNICIPALITY CANNOT BE SUED FOR NEGLIGENT HIRING, RETENTION, TRAINING AND SUPERVISION BASED UPON EMPLOYEES’ ACTIONS ALLEGED TO HAVE BEEN WITHIN THE SCOPE OF THEIR EMPLOYMENT; THE PROPER THEORY IS RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that a municipality cannot be sued for negligent hiring, retention, training and supervision based upon actions taken by employees within the scope of their employment. In that case, the municipality can only be sued under a respondeat superior theory. Here plaintiff sued the City of Buffalo and police officers for actions relating to plaintiff’s arrest:

We agree with defendants that the court erred in denying their motion with respect to the … causes of action against the City of Buffalo, sounding in negligent hiring, negligent retention, and negligent training and supervision … . … [I]n those causes of action plaintiff alleges that the City of Buffalo was negligent in the hiring, retention and training and supervision of [officers] Moriarity and Bridgett, and plaintiff further alleges that Moriarity and Bridgett were acting in their capacities as employees of the City of Buffalo. It is well settled … that “where an employee is acting within the scope of [their] employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training” … . Taylor, 2024 NY Slip Op 03632, Fourth Dept 7-3-24

Practice Point: A municipality cannot be sued for negligent hiring, retention, training and supervision when the employees’ actions are alleged to have been within the scope of their employment. The municipality should be sued under a respondeat superior theory.

 

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A TEACHER’S ALLEGED STATEMENT TO THE PLAINTIFF THAT HE WAS AWARE OF THE SEXUAL ABUSE OF THE PLAINTIFF BY ANOTHER TEACHER OCCURRING REPEATEDLY AT SCHOOL WAS DEEMED AN ADMISSION ATTRIBUTABLE TO THE SCHOOL DISTRICT RAISING A QUESTION OF FACT WHETHER THE SEXUAL ABUSE WAS FORESEEABLE BY THE SCHOOL DISTRICT (FOURTH DEPT).

The Fourth Department, over a concurrence disagreeing with the majority ruling that a teacher’s alleged statement was admissible against the school district as an admission, affirmed the denial of the school district’s motion for summary judgment in this Child Victims Act negligent supervision case. Plaintiff, who was a student in the late 60’s, alleged repeated abuse by a teacher in a back room at the school. Another teacher was alleged to have overheard the abuse and allegedly threatened plaintiff with revealing it in an attempt to sexually abuse plaintiff himself. That statement was deemed an admission which raised a question of fact whether the abuse was foreseeable by the school district:

… [P]laintiff testified that the orchestra teacher offered her a ride home from a bus stop after an evening event at the school. Instead of taking her home, however, the orchestra teacher took her to a park where, according to plaintiff, he told her “that he knew what was going on because he could hear through the walls from the orchestra room into that back room [where Fleming’s office was located] and that [plaintiff] didn’t want it to get out — [plaintiff] wouldn’t want it to come out, so [she] should be nice to him.” When plaintiff responded that she did not know what the orchestra teacher was talking about, he attempted to kiss her. * * *

The court determined that the entirety of the statement attributed to the orchestra teacher was admissible as a vicarious party admission of defendant under CPLR 4549 and therefore properly considered when evaluating defendant’s motion for summary judgment, because the orchestra teacher was employed by defendant and “[r]ecognizing and responding to the abuse of students while on school grounds certainly falls within the scope of the duties of a teacher employed by [defendant].” * * *

We conclude that it is within the scope of a teacher’s employment relationship to identify and assist a student who they believe is being sexually abused, and that the orchestra teacher’s statement indicating awareness of the abuse of plaintiff was therefore “on a matter within the scope of [the employment] relationship” … . We further conclude that the orchestra teacher’s statement professing knowledge of the abuse occurred “during the existence of” the employment relationship, within the meaning of CPLR 4549, inasmuch as it is undisputed that he was employed by defendant at the time the statement was made. Therefore, we agree with the court that the statement is admissible pursuant to CPLR 4549. Bl Doe 5, 2024 NY Slip Op 03608, Fourth Dept 7-3-24

Practice Point: In a negligent supervision action against a school district, is a statement allegedly made by a teacher to a student indicating the teacher’s awareness of repeated sexual abuse of the student by another teacher, taking place at school, admissible against the school district as an admission of its awareness of the abuse? Here the court answered “yes” over a concurrence which disagreed.

 

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LABOR LAW 193 PROHIBITS AN EMPLOYER FROM REDUCING AN EMPLOYEE’S PAY TO COMPENSATE FOR THE EMPLOYEE’S ALLEGEDLY POOR PERFORMANCE; HERE THE EMPLOYER REDUCED PLAINTIFF’S PAY TO RECOUP COSTS ASSOCIATED WITH PLAINTFF’S TRAFFIC ACCIDENT WITH A COMPANY TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Labor Law section 193 prohibited plaintiff-truck-driver’s employer from reducing plaintiff’s pay to recoup costs associated with a traffic accident alleged to have been the result of plaintiff’s negligence:

Labor Law § 193 “prohibits an employer from making any deduction from an employee’s wages unless permitted by law or authorized by the employee for certain purposes” … . To allow an employer to recover the return of paid wages based upon an employee’s alleged lack of performance “would be permitting [that employer] to do indirectly and retroactively that which the law specifically prohibits it from doing directly” … . This principle applies equally whether the cause of action sounds in negligence or in contract, as an employee may not waive the protections of Labor Law § 193 … .

… [T]he defendants’ counterclaims are explicit attempts to recoup costs for their business allegedly arising out of the plaintiff’s negligence or poor performance. Because such causes of action are barred by the Labor Law, the Supreme Court erred in denying the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. Craig v Fastex Logistics Transp., LLC, 2024 NY Slip Op 03678, Second Dept 7-3-24

Practice Point: Here plaintiff-truck-driver’s employer reduced his pay to recoup costs associated with plaintiff’s traffic accident with a company truck. Such a pay reduction is prohibited by Labor Law section 193.

 

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