Employment Law – Page 15 – New York Appellate Digest

RETIRED PERMANENTLY DISABLED YONKERS FIREFIGHTERS ARE ENTITLED TO HAVE HOLIDAY PAY AND CHECK-IN PAY INCLUDED IN THE AMOUNT OF COMPENSATION TO WHICH THEY ARE ENTITLED UNTIL RETIREMENT AGE; NIGHT DIFFERENTIAL PAY, HOWEVER, SHOULD NOT BE INCLUDED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined retired Yonkers firefighters (Retirees) , who are permanently disabled, are entitled to have holiday pay and check-in pay included in the amount of compensation they receive until reaching retirement age. The retired, disabled firefighters are not entitled to have “night differential” pay included, however:

General Municipal Law § 207-a (2) provides that, for firefighters who are permanently disabled due to work-related injuries and receiving certain benefits from the state, a municipality must make up the difference between those benefits and the firefighter’s “regular salary or wages” until the firefighter reaches the mandatory retirement age. Since at least 1995, the CBAs have provided for holiday pay, check-in pay, and night differential, which collectively the parties refer to as “special pays.” … Until 2015, Yonkers included all three of these payments when calculating the Retirees’ section 207-a (2) supplements. * * *

Unlike check-in and holiday pay, the Retirees have not established whether all firefighters are contractually entitled to receive night differential pay … . Night differential contains two express conditions: it is earned only by “firefighters who are regularly scheduled to work rotating tours that include the 6:00 p.m. to 8:00 a.m. night tour, and only to firefighters actually working that night tour.” The restriction of this payment to those firefighters who “actually work[] the night tour” strongly suggests that night differential must be specially earned, not paid to all, rendering it distinct from “regular salary or wages,” and the Retirees have not demonstrated that the CBAs [collective bargaining agreements] require all firefighters to work the night tour. Thus, the Retirees have not demonstrated that all firefighters are entitled to earn the night differential such that it should be included in the section 207-a (2) calculation. Matter of Borelli v City of Yonkers, 2022 NY Slip Op 07094, CtApp 12-15-22

Practice Point: Permanently disabled Yonkers firefighters are entitled to have holiday pay and check-in pay, but not night differential pay, included in the compensation they are to receive until retirement age.

December 15, 2022

Employment Law, Evidence, Medical Malpractice, Negligence

PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the defendant surgeons should not have been dismissed on the ground plaintiff’s expert’s affidavit was conclusory. The affidavit raised questions of fact about whether defendant surgeon deviated from the requisite standard of care. The court noted that the plaintiff’s expert did not review the pleadings and all the evidence was irrelevant. The court also noted that the action against the hospital based upon the surgical procedures performed by hospital staff was properly dismissed. A hospital will not be vicariously liable where hospital staff competently carry out the orders of the private physicians who did the primary surgery:

… [T]he plaintiffs’ expert’s opinion did not consist of merely general and conclusory allegations unsupported by competent evidence. The plaintiffs’ expert made specific allegations based upon the operative reports and CT scan which were part of the medical records, and addressed specific assertions made [defendants’] expert. …

Although the plaintiffs’ expert did not review the pleadings, and all the evidence, that failure went to the weight, not the admissibility of his opinion . The operative report regarding the hysterectomy was part of the injured plaintiff’s hospital records, was electronically signed by Germain [defendant surgeon], and was relied upon by [defendants’] expert … . Therefore, the plaintiffs’ expert properly relied upon that report in reaching his conclusions. * * *

At the conclusion of the surgery, the physician assisting Germain was replaced by an employee of the hospital. However, by that time, the surgery was over, and the doctors were closing up the injured plaintiff. There is no allegation or evidence that the hospital physician committed malpractice or could have had any influence on the course of the surgery at that juncture.

“Where hospital staff, such as resident physicians and nurses, have participated in the treatment of the patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees merely carried out the private attending physician’s orders,” except when the hospital staff follows orders knowing that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, the hospital’s employees have committed independent acts of negligence, or the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital … . Bhuiyan v Germain, 2022 NY Slip Op 06901, Second Dept 12-7-22

Practice Point: Here, in this medical malpractice case, the fact that plaintiff’s expert did not review the pleadings and all the evidence was not a legitimate reason for rejecting the expert’s affidavit. The expert relied on relevant evidence and the affidavit was not conclusory.

Practice Point: A hospital will not be vicariously liable for surgery competently done by hospital staff at the direction of the private physicians who did the primary surgery.

December 7, 2022

Civil Procedure, Education-School Law, Employment Law, Intentional Infliction of Emotional Distress, Negligence

PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Child Victims Act action alleging sexual abuse by a priest while plaintiff was attending defendant’s parish school stated causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress. “The complaint alleged .* * * the priest … was an employee and/or an agent of the defendant, that the defendant had knowledge that the priest was abusing students, including the plaintiff, or that he had the propensity to abuse, and that the sexual abuse of the plaintiff occurred during school activities and during times at which the plaintiff was under the defendant’s supervision and care, custody, and control.”:

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity … .

… [A] school “has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … .

… [T]reating the allegations in the complaint as true, including that the defendant had knowledge of the priest’s sexual abuse of the plaintiff and other children and concealed that abuse, and giving the plaintiff the benefit of every possible favorable inference, the alleged conduct would be sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . Novak v Sisters of the Heart of Mary, 2022 NY Slip Op 06814, Second Dept 11-30-22

Practice Point: In an action pursuant to the Child Victims Act, plaintiff alleged he was sexually abused by a priest while attending defendant’s school. The complaint alleged defendant knew about the abuse. The complaint causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress.

November 30, 2022

Contract Law, Education-School Law, Employment Law, Insurance Law

REDUCTION OF PETITIONER-SCHOOL-DISTRICT EMPLOYEE’S RETIREMENT HEALTH BENEFITS BELOW THE LEVEL AFFORDED ACTIVE EMPLOYEES VIOLATES INSURANCE LAW 4235 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s reduction of petitioner-employee’s (Perrotta’s) retirement health benefits below the level afforded active employees violated the Insurance Law:

The moratorium law [Insurance Law 4235] sets “‘a minimum baseline or “floor” for retiree health benefits'” which is “‘measured by the health insurance benefits received by active employees . . . In other words, the moratorium [law] does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'” … . Thus, a school district may not diminish retirees’ health insurance benefits unless it makes “a corresponding diminution in the health insurance benefits or contributions of active employees” … . The purpose of the moratorium law is to protect the rights of retirees who “‘are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'” … .

Here, since Perrotta submitted evidence establishing that the district diminished the health insurance contribution rate for certain retirees, and the district failed to proffer evidence that it made a corresponding diminution in the health insurance benefits or contributions for active employees, its determination violated the moratorium law. … Supreme Court should have granted the petition and annulled the district’s determination … . Matter of Perrotta v Syosset Cent. Sch. Dist., 2022 NY Slip Op 06704, Second Dept 11-23-22

Practice Point: Here the petitioner, a retired school district employee, successfully contested the reduction of her retirement health benefits below the level afforded active employees as a violation of Insurance Law 4235.

November 23, 2022

Contract Law, Employment Law, Negligence

DEFENDANT’S EMPLOYER (TOMS) WAS NOT LIABLE FOR THE ACTS OF DEFENDANT EMPLOYEE (ROSNER) WHICH WERE NOT DONE WITHIN THE SCOPE OF ROSNER’S EMPLOYMENT OR TO FURTHER TOMS’ BUSINESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant Rosner, an employee of defendant TOMS Capital Management, was clearly not acting within the scope of his employment with TOMS when advising plaintiff on investments, allegedly as part of a scheme to deplete plaintiff’s assets. Therefore plaintiff’s unjust enrichment and negligence causes of action against TOMS based upon respondeat superior should have been dismissed:

In or about June 2020, Rosner allegedly began an affair with plaintiff’s wife. They then allegedly conspired to develop a scheme to deplete plaintiff’s assets. In furtherance of this scheme, Rosner began to advise plaintiff to invest in high-risk stock options which Rosner knew were not suitable for plaintiff and would not be profitable for him. Plaintiff followed the advice and sustained trading losses in excess of $300,000. Plaintiff alleges that this investment advice was part of a scheme by TOMS and Rosner to “better position the stock options,” in which TOMS was also allegedly participating, to benefit TOMS and Rosner and their clients.

The motion court incorrectly determined that the allegations in the complaint sufficiently supported claims for unjust enrichment and negligence against TOMS under a theory of respondeat superior. Even construed in the light most favorable to plaintiff … , the alleged acts by Rosner clearly were not made within the scope of his employment or in furtherance of TOMS’s business, but rather, for his own personal gain … . Courtois v TOMS Capital Mgt. LP, 2022 NY Slip Op 06545, First Dept 11-17-22

Practice Point: Here defendant allegedly gave investment advice to plaintiff which was designed to deplete plaintiff’s assets. Because defendant’s acts were not done within the scope of his employment the unjust enrichment and negligence causes of action against defendant’s employer, pursuant to the doctrine of respondeat superior, should have been dismissed.

November 17, 2022

Arbitration, Employment Law, Municipal Law

WHETHER THE VILLAGE POLICE WERE ENTITLED TO ADDITIONAL COMPENSATION FOR WORK DURING THE EARLY DAYS OF THE COVID-19 PANDEMIC IS ARBITRABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the issue whether the village police were entitled to additional compensation for work during the early days of the COVID-19 pandemic is arbitrable:

Where the relevant arbitration provision is broad, a court “should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA [collective bargaining agreement]” … . If such a relationship exists, “the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” … .

… [T]he Village’s petition was grounded on its contention that the dispute in this case is not arbitrable because article V, § 4 of the CBA provides for additional compensation when the mayor of the Village declares “a holiday for Village employees due to an emergency,” and no such declaration was made by the mayor here. The petition further asserted that arbitration would be against public policy because the “members of the PBA are seeking to extract a benefit to which they clearly are not entitled and which is not contained in their contract.” These contentions are without merit, since the applicability of article V, § 4 of the CBA does not affect the arbitrability of the dispute, but only the merits of the dispute, and the merits are to be determined by the arbitrator and not by the courts … . Matter of Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn., 2022 NY Slip Op 06481, Second Dept 11-16-22

Practice Point: Whether a matter is arbitrable is separate and distinct from whether the dispute has merit, which is determined by the arbitrator.

November 16, 2022

Civil Procedure, Employment Law, Human Rights Law

THE THREE-YEAR STATUTE OF LIMITATIONS FOR AGE DISCRIMINATION CLAIMS UNDER THE NYS AND NYC HUMAN RIGHTS LAW IS TOLLED BY FILING A CHARGE FOR AGE DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the age discrimination claims under the NYS and NYC Human Rights Law were timely brought because the three-year statute of limitations was tolled when plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC):

Plaintiff’s action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8-107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) … . The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies … .

Moreover, Administrative Code § 8-502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.” The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8-502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” … . Gabin v Greenwich House, Inc., 2022 NY Slip Op 06428, First Dept 11-15-22

Practice Point: Filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) tolls the three-year statute of limitation for filing age discrimination claims pursuant the NYS and NYC Human Rights Law.

November 15, 2022

Civil Procedure, Employment Law, Family Law, Negligence

PLAINTIFF, IN THIS CHILD VICTIMS ACT SUIT, ALLEGED HE WAS ABUSED BY AN EMPLOYEE OF FAMILY SERVICES OF WESTCHESTER (FSW) AND BROUGHT CAUSES OF ACTION FOR NEGLIGENT HIRING AND NEGLIGENT SUPERVISION AGAINST FSW; THOSE CAUSES OF ACTION WERE DISMISSED FOR FAILURE TO SUFFICIENTLY ALLEGE FSW WAS AWARE OF THE EMPLOYEE’S PROPENSITY TO COMMIT THE WRONGFUL ACTS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s negligence hiring and negligent supervision causes of action against Family Services of Westchester (FSW) should have been dismissed. Plaintiff, in this Child Victims Act suit, alleged he was abused by a youth mentor employed by FSW when he was 10 – 12 years old:

To sustain a cause of action sounding in negligent supervision of a child under the alleged facts of this case, the plaintiff must establish that the defendant “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “‘[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

Here, the complaint failed to state a cause of action to recover damages for negligent supervision of the plaintiff, since it failed to sufficiently allege that the third party acts were foreseeable … . Similarly, the complaint failed to state causes of action to recover damages for negligent hiring and negligent training and supervision related to the plaintiff’s alleged youth mentor, since it failed to sufficiently allege that FSW knew, or should have known, of a propensity on the part of the youth mentor to commit the alleged wrongful acts … . Fuller v Family Servs. of Westchester, Inc., 2022 NY Slip Op 05992, Second Dept 10-26-22

Practice Point: Here in this Child Victims Act suit alleging abuse by an employee of Family Services of Westchester (FSW), the complaint did not state causes of action against FSW for negligent hiring or negligent supervision because the complaint did not sufficiently allege FSW was aware of the employee’s propensity for the wrongful conduct alleged.

October 26, 2022

Employment Law, Municipal Law

CIVIL SERVICE LAW SECTION 71 ALLOWS THE CITY TO TERMINATE AN EMPLOYEE WHO WAS INJURED ON THE JOB AND IS UNABLE TO RETURN TO WORK AFTER A YEAR; THE PROCEDURE FOR TERMINATING SUCH AN EMPLOYEE IS SUBJECT TO THE COLLECTIVE BARGAINING REQUIREMENT OF THE TAYLOR LAW (CIVIL SERVICE LAW SECTION 200 ET SEQ) (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Troutman, reversing the Second Department, determined the city was required to engage in collective bargaining with the union to agree on the procedure for terminating an employee (here a firefighter) who was injured on the job and has not returned to work after a year:

Does the Taylor Law (Civil Service Law § 200 et seq.) require a municipality to engage in collective bargaining over the procedures for terminating municipal employees after they have been absent from work for more than a year due to an injury sustained in the line of duty? We hold that collective bargaining is required. * * *

“[W]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the work[ers’] compensation law, [the employee] shall be entitled to a leave of absence for at least one year . . . ” (Civil Service Law § 71). * * *

Section 71 [grants] an employee with a work-related disability a leave of absence of up to one year and conditional reinstatement—even after that year has passed—while allowing the employer to fill the position if it chooses to terminate the employee.

… “[T]here is no ‘plain’ and ‘clear’ evidence that the Legislature intended” to foreclose from mandatory bargaining the procedures for terminating employees covered by the statute … . Both the language and legislative history of the section are silent on the issue of collective bargaining … . …

… [I]nasmuch as section 71 does not reference pretermination procedures at all, the statute plainly leaves room for the City and the Union to negotiate those procedures. Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2022 NY Slip Op 05939, CtApp 10-25-22

Practice Point: The procedure for terminating (pursuant to Civil Service Law 71) a firefighter who was injured on the job and was not able to return to work after a year is subject to the collective bargaining requirement of the Taylor Law (Civil Service Law Section 200 et seq).

October 25, 2022

Civil Procedure, Employment Law, Medical Malpractice, Negligence

THE PLEADINGS ALLEGED THE NEGLIGENCE OF THE HOSPITAL’S “AGENTS AND EMPLOYEES” AND PLAINTIFF’S EXPERT POINTED TO THE ALLEGED NEGLIGENCE OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED PLAINTIFF’S DECEDENT; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE HOSPITAL WOULD BE VICARIOUSLY LIABLE FOR THE EMERGENCY ROOM PHYSICIAN’S ACTS OR OMISSIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the defendant hospital was vicariously liable for the acts or omissions of the emergency room doctor, Vaugeois, who treated plaintiff’s decedent. Although the complaint did not name Vaugeois as a defendant, the pleadings alleged the negligence of defendant’s agents and employees:

… [Plaintiff’s expert] points to Vaugeois, the hospitalist who admitted and initially rendered care to decedent, as the negligent party. … [P]laintiff’s bill of particulars speaks to defendant’s “agents and employees, specifically including” Smithem and Dey [who had been dropped from the suit]. The word “including” is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers. “A hospital is responsible for the malpractice of . . . a professional whom it holds out as performing the services it offers, even though in fact he or she is an independent contractor” … . At the very least, a question of fact is presented as to whether liability may be imposed against the hospital based on an apparent authority theory … . “Pursuant to that theory, under the emergency room doctrine, ‘a hospital may be held vicariously liable for the acts of an independent physician if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician'” … . Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906, Third Dept 10-20-22

Practice Point: The pleadings alleged negligence on the part of defendant hospital’s “agents and employees.” Plaintiff’s expert alleged the emergency room physician was negligent. Therefore, there was a question of fact whether the hospital would be vicariously liable for the acts or omissions of the emergency room physician.

October 20, 2022