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IN THIS MEDICAL MALPRACTICE ACTION, THE PLAINTIFF WAS NOT REQUIRED TO IDENTIFY EACH ALLEGEDLY NEGLIGENT EMPLOYEE OF THE DEFENDANT MEDICAL CENTER TO SURVIVE SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was not obligated to provide the name of every negligent employee of the defendant Erie County Medical Center Corporation (ECMC) to survive summary judgment in this medical malpractice action:

Contrary to the court’s determination, plaintiff was not required to provide the name of every allegedly negligent actor engaging in conduct within the scope of employment for ECMC … inasmuch as ECMC was on notice of the claims against it based on the allegations in the amended complaint, as amplified by plaintiff’s bill of particulars to ECMC, noting failures and omissions by ECMC’s employees. Indeed, ECMC is in the best position to identify its own employees and contractors and, as the creator of decedent’s medical records, ECMC had notice of who treated decedent and of any allegations of negligence by its nursing staff.  Braxton v Erie County Med. Ctr. Corp., 2022 NY Slip Op 04866, Fourth Dept 8-4-22

Practice Point: In this medical malpractice action, the plaintiff was not required to identify each allegedly negligent employee of the medical center to survive summary judgment.

 

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PLAINTIFFS-EMPLOYEES SEEKING THE PREVAILING WAGE FOR PUBLIC WORKS PROJECTS PURSUANT TO LABOR LAW 220 ARE ENTITLED TO FULL SUPPLEMENTAL (FRINGE) BENEFITS, AS WELL AS WAGES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs-employees were entitled to full payment of their supplemental (fringe) benefits in this Labor Law 220 action seeking the prevailing wage for public works projects:

Plaintiffs are members of a class of employees who allege that defendant failed to pay them prevailing supplemental (or fringe) benefits for work they performed on various public works contracts. * * *

Pursuant to Labor Law § 220 (3) (b), contractors undertaking a public works project must provide their employees with supplemental benefits “in accordance with prevailing practices for private sector work in the same locality” … . Supplemental benefits are defined as “all remuneration for employment paid in any medium other than cash, or reimbursement for expenses, or any payments which are not ‘wages’ within the meaning of the law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay[,] life insurance and apprenticeship training” (§ 220 [5] [b]). * * *

Consider, for example, a hypothetical contractor that fails to pay prevailing wages (as opposed to benefits) to its employees on a public works project, and then pays the shortfall in wages into a common fund out of which all of its employees are compensated, including those who are not prevailing wage workers. Due to the dilution of funds resulting from those funds also being paid to the nonprevailing wage workers, the employees who worked on the public works contracts would not receive the full wages they would be entitled to for their work on the public works project. Under that scenario, the contractor would clearly have failed to comply with Labor Law § 220 (3) (a), notwithstanding that the contractor paid the same amount in wages to a fund as it would have paid if the prevailing wage workers had been paid directly according to scale. We do not perceive any justification in law or logic for treating supplemental benefits differently from wages. Vandee v Suit-Kote Corp., 2022 NY Slip Op 04852, Fourth Dept 8-4-22

Practice Point: In an action pursuant to Labor Law 220 seeking the prevailing wage for public works projects, the employees are entitled to full compensation for supplemental (fringe) benefits, as well as wages.

 

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DEFENDANT PIZZA-DELIVERY DRIVER WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ALLEGELDY RESISTED ARREST AND INJURED PLAINTIFF POLICE OFFICER; THE OFFICER’S SUIT AGAINST THE DRIVER’S EMPLOYER, UNDER VICARIOUS LIABILITY AND NEGLIGENT HIRING THEORIES, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-police officer’s (Maldonado’s) action against Domino’s Pizza (DP) as the employer of defendant pizza-delivery-driver (Alum) should have been dismissed. Maldonado pulled Alum over to issue a ticket for a defective headlight. Alum allegedly became violent and injured Maldonado sued DP under vicarious-liability theory negligent hiring-supervision theories. The Second Department held Alum was not acting within the scope of his employment when he resisted arrest, DP demonstrate it did not have knowledge or notice that Alum had a propensity for violence:

… [DP demonstrated] that Allum’s allegedly tortious conduct was not within the scope of his employment. … DP demonstrated that the violent conduct displayed by Allum during the course of receiving a ticket for a defective headlight was not reasonably foreseeable or incidental to the furtherance of DP’s business interests and that Allum was not authorized to use force to effectuate the goals and duties of his employment … . …

… DP demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring and negligent supervision. In this regard, DP demonstrated that it did not have knowledge, or notice, of Allum’s propensity for the violent conduct that resulted in Maldonado’s injury … . Moreover, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Maldonado v Allum, 2022 NY Slip Op 04798, Second Dept 8-3-22

Practice Point: An employer will not be liable for the tortious behavior of an employee unless the employee is acting within the scope of his employment. Here a pizza-delivery driver allegedly resisted arrest after a traffic stop and injured plaintiff police officer. The employer was not liable for the violent behavior of the employee under either a vicarious liability or negligent hiring theory.

 

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PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT). ​

The Second Department upheld a jury verdict (reducing it however) in favor of plaintiff who was detained in defendant Home Depot’s store by a Home Depot employee based upon the false allegation plaintiff had assaulted a woman. Plaintiff was detained until the police arrived and then arrested. Plaintiff was a court attorney and was seeking a judicial nomination. Plaintiff was awarded $1.8 million, which the Second Department reduced to $500,000:

The jury, after a trial on the issue of liability, returned a verdict in favor of the plaintiff and against the defendants on the causes of action alleging battery and false imprisonment. …

… False arrest and false imprisonment are two different names for the same common-law tort … . The elements of the tort are intent to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged … . “Probable cause is a complete defense to an action alleging . . . false imprisonment” … .

The fact that the police had probable cause to detain the plaintiff based on what Marrugo [the Home Depot employee] told them does not mean that Marrugo had probable cause to detain the plaintiff. Although a civilian complainant generally cannot be found liable for false imprisonment merely for providing information to the police which turns out to be wrong … , a private person can be liable for false imprisonment for actively participating in the arrest such as “‘importuning the authorities to act'” … . The record indicates that the plaintiff would not have been arrested but for Marrugo’s detention of him, and importuning the police to arrest him. Marrugo instigated the arrest, making the police his agents in confining the plaintiff … . Marrugo did so based upon false information that the plaintiff assaulted the female customer with a shopping cart. Wieder v Home Depot U.S.A., Inc., 2022 NY Slip Op 04830, Second Dept 8-3-22

Practice Point: Here a Home Depot employee detained plaintiff until the police arrived based on the false allegation he had assaulted a woman. Plaintiff sued Home Depot and the verdict in plaintiff’s favor was upheld.

 

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ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Moulton, in matters of first impression, interpreted the Freelance Isn’t Free Act (FIFA) in the context of motions to dismiss. The opinion is detailed and fact-specific and cannot be fairly summarized here. The plaintiffs alleged they were hired by defendants as freelancers and defendants’ failure pay was the basis of the lawsuits pursuant to FIFA. Most of the actions survived the motions to dismiss:

Enacted November 16, 2016 and effective May 15, 2017, FIFA is the first act of its kind in this country to provide legal protections for freelance workers against nonpayment for work performed … . FIFA defines a “freelance worker” as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation” … . A central issue in this case is whether plaintiffs fit within this definition. Chen v Romona Keveza Collection LLC, 2022 NY Slip Op 04702, First Dept 7-26-22

Practice Point: New York City enacted the “Freelance Isn’t Free Act” (FIFA) in 2017–the first law in the nation to specifically address the failure to pay freelancers.

 

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ONE OF THE PERSONS INVOLVED IN A VIOLENT CONFRONTATION OUTSIDE A SCHOOL THREATENED TO RETURN THE NEXT DAY WITH A GUN; A TEACHER IMMEDIATELY HELD A MEETING WHERE CALLING IN SICK THE NEXT DAY WAS DISCUSSED; 23 TEACHERS CALLED IN SICK; THAT ACTION CONSTITUTED AN ILLEGAL STRIKE PURSUANT TO CIVIL SERVICE LAW 210 (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined that the Public Employment Relations Board (PERB) properly found that the petitioner, the Buffalo Teachers Federation, engaged in an unlawful strike in violation of Civil Service Law section 210. There was a violent confrontation between two older individuals and students outside the school at dismissal time. One of the older individuals, while fleeing the police, said he was going to come back the next day with a gun. He said “if you show up to work tomorrow, you’re to all die.” A teacher at the school, Nicole LaRusch, called an immediate meeting where calling in sick the next day was discussed. Ultimately 23 teachers called in sick. The question before the Third Department was whether there was “substantial evidence” in the record to support the PERB’s ruling the action was an illegal strike:

Civil Service Law article 14, known as the Taylor Law, provides that “[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike” (Civil Service Law § 210 [1]). The term “strike” is statutorily defined as “any strike or other concerted stoppage of work or slowdown by public employees” … . “[T]he substantial evidence standard is a minimal standard” that is “less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . * * *

According to [a] teacher’s aide union representative, LaRusch stated that they were calling out sick because “the principal didn’t care about [their] safety” and that they were sending a message to “downtown” — meaning the district’s headquarters — so that they could “get resource officers in the school.” In our view, the … evidence amply supports the conclusion that, in violation of the Taylor Law, LaRusch and the 15 other absent teachers engaged in a concerted slowdown or stoppage of work as part of a coordinated effort to obtain a safer work environment … . Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 2022 NY Slip Op 04680, Third Dept 7-21-22

Practice Point: 23 teachers called in sick after a person threatened to return to the school the next day with a gun and kill the teachers who showed up for work. That action was deemed an illegal strike in violation of the Civil Service Law section 210.

 

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PLAINTIFF SUED HER EMPLOYER IN NEGLIGENCE BASED UPON AN ALLEGED ASSAULT BY A COWORKER; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS IN THE COURSE OF PLAINTIFF’S EMPLOYMENT; THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION OVER THE DETERMINATION OF THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW; RATHER THAN DISMISSING THE NEGLIGENCE CAUSES OF ACTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the causes of action against plaintiff’s employer for negligence alleging an assault by a coworker should not have been dismissed. Defendants’ alleged that Workers’ Compensation was the plaintiff’s exclusive remedy. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law. Because there were questions of fact about whether plaintiff was injured in the course of her employment, Supreme Court should have referred the matter to the Workers’ Compensation Board:

… Supreme Court improperly granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the negligence causes of action … . Since “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,” it is “inappropriate for the courts to express views with respect thereto pending determination by the board” … . Here, questions of fact were raised as to whether the plaintiff was injured during the course of her employment, and thus, the court should have referred the matter to the Workers’ Compensation Board … . Chin v Doherty Enters., 2022 NY Slip Op 04532, Second Dept 7-13-22

Practice Point: Here plaintiff alleged she was assaulted by a coworker and sued her employer in negligence. There were questions of fact whether plaintiff was injured during the course her employment. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law.. Therefore the negligence causes of action should not have been dismissed and the matter should have been referred to the Board.

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WHERE THE EMPLOYER OF A PHYSICIAN HAS PAID THE PREMIUMS FOR MEDICAL MALPRACTICE INSURANCE AND THE INSURANCE COMPANY DEMUTUALIZES, ABSENT AN AGREEMENT TO THE CONTRARY, THE PROCEEDS GO TO THE PHYSICIAN, NOT THE EMPLOYER (FIRST DEPT). ​

The First Department, reversing Supreme Court based on a recent Court of Appeals ruling, determined the proceeds from the demutualization of a medical malpractice insurer belong to the physician, not to the physician’s employer (the plaintiff here):

The Court of Appeals has recently held that “when an employer pays premiums to a mutual insurance company to obtain a policy of which its employee is the policyholder, and the insurance company demutualizes, absent contrary terms in the contract of employment, insurance policy, or separate agreement, the policyholder is entitled to the proceeds from the demutualization” … .

… [D]efendant is entitled to the demutualization proceeds. There is no evidence of any contrary terms in the contract of employment, insurance policy, or separate agreement. In fact, defendant’s employment agreement provides that “[t]he Employer agrees that it will pay or reimburse the Employee for that portion of such insurance premiums that are attributable to the period coinciding with the Term [of employment].” Plaintiff … acknowledged … that it paid the insurance premiums “as a fringe benefit to the Physician employee.” … .

It is irrelevant that plaintiff, who is not listed as the policy administrator in the policy, paid the policy premiums during the relevant period and acted as the policy administrator … . Mid-Manhattan Physician Servs., P.C. v Dworkin, 2022 NY Slip Op 04523, First Dept 7-12-22

​Similar issues and result in Sullivan v Northwell Health, Inc., 2022 NY Slip Op 04525, First Dept 7-12-22

​Practice Point: Where the employer of a physician has paid the premiums for medical malpractice insurance and the insurance company demutualizes, absent an agreement to the contrary, the proceeds go to the physician, not the employer.

 

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THE ACCIDENTAL DISCHARGE OF A FIREARM BY PLAINTIFF’S COWORKER DURING A FIREARMS TRAINING SESSION FOR ARMORED-CAR GUARDS WAS WITHIN THE DEFENDANT COWORKER’S SCOPE OF EMPLOYMENT; WORKERS’ COMPENSATION IS PLAINTIFF’S EXCLUSIVE REMEDY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s exclusive remedy in this accidental shooting case was Workers’ Compensation. Plaintiff and defendant coworker were both armored-car guards attending a firearms training course required by their employer when plaintiff was shot. When plaintiff and defendant coworker were seated at a table waiting for the course to begin the coworker took out his loaded firearm and it discharged as he attempted to disassemble it. The bullet went through the table and struck plaintiff in the leg:

The record establishes that firearms were permitted in the classroom and that trainees would generally keep the weapons in a holster or a gun box but were prohibited from taking out and handling firearms in the classroom. Defendant was thus attending a mandatory firearms training course at which he was required to have the pistol for which he was seeking certification, the training was directly related to his job duties that involved carrying a firearm, he was permitted to have the firearm in the classroom, and he simply violated a safety rule by handling the firearm in the classroom, thereby causing it to accidentally discharge. Defendant’s violation of the safety provision “was not, in these circumstances, of such type or magnitude as to take . . . defendant out of the scope of his employment” … . In other words, defendant’s conduct constituted a simple lack of reasonable care, i.e., negligence … , and “[t]he Workers’ Compensation Law offers the only remedy for injuries caused by the coemployee’s negligence” … . Guida v Rivera Investigations, Inc., 2022 NY Slip Op 04443, Fourth Dept 7-8-22

Practice Point: During a firearms training course required by plaintiff’s employer, a coworker negligently took out his loaded firearm which accidentally discharged, striking plaintiff. Because the coworker’s actions, although negligent, were within the scope of the coworker’s employment, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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THERE ARE SUBSTANTIVE QUESTIONS OF FACT ABOUT THE NATURE OF THE AGREEMENTS BETWEEN PLAINTIFF EMPLOYER AND DEFENDANT EMPLOYEE RE: THE SALE OF DEFENDANT’S TAX PREPARATION BUSINESS TO PLAINTIFF AND WHETHER DEFENDANT SOLD HER CLIENT LIST TO PLAINTIFF; PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION ENFORCING THE RESTRICTIVE COVENANT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-employer’s motion for a preliminary injunction in this violation-of-a-restrictive-covenant case should not have been granted. There were too many issues of fact about the nature of the parties’ agreement re: plaintiff’s purchase of defendant’s tax preparation business, including whether defendant turned over her client list to the plaintiff:

… [T]he plaintiff commenced this action against the defendant, its former employee, to recover damages for breach of contract. The plaintiff alleged … the parties entered into three agreements: a purchase agreement whereby the plaintiff purchased the defendant’s tax preparation business, including her client list; an agreement whereby the plaintiff employed the defendant as a tax preparer; and a confidentiality, nonsolicit, and noncompete agreement which, inter alia, contained restrictive covenants that, among other things, prohibited the defendant from soliciting the plaintiff’s clients. …

… [T]he plaintiff failed to demonstrate a clear right to relief and, thus, did not demonstrate a likelihood of success on the merits. “‘[A] restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee'” … . An employer’s interests justifying a restrictive covenant are limited “to the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary” … . Here, there are issues of fact as to what the parties agreed to, including whether the plaintiff purchased the rights to the defendant’s clients pursuant to the parties’ agreements and whether the plaintiff breached its own obligations pursuant to those agreements. Since these issues of fact exist, the plaintiff did not show a likelihood of success on the merits and, thus, failed to establish a clear right to preliminary injunctive relief … . R&G Brenner Income Tax Consultants v Fonts, 2022 NY Slip Op 04039, Second Dept 6-22-22

Practice Point: Where there are substantive questions of fact, a preliminary injunction should not be granted because a likelihood of success on the merits has not been demonstrated.

 

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