You are here: / Employment Law
, , ,

THE DREXEL UNIVERSITY COOPERATIVE EDUCATION PROGRAM (CO-OP) ARRANGES FOR STUDENTS TO WORK FOR PARTICIPATING EMPLOYERS FOR COLLEGE CREDIT; DREXEL DID NOT EXERCISE SUFFICIENT SUPERVISION OVER THE STUDENTS TO BE HELD VICARIOUSLY LIABLE FOR ANY WORKPLACE NEGLIGENCE ON THE STUDENTS’ PART (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Drexel University was not the employer of two students who were operating a forklift which allegedly caused injury to plaintiff. The students were participating in a Drexel Cooperative Education Program. The Second Department found that Drexel was not exercising sufficient supervision and control over the students such that Drexel could be held vicariously liable for the forklift accident:

… [T]he Drexel Cooperative Education Program [the co-op] … permits students to apply for and obtain paid work experience with participating employers for a period of up to six months. * * *

Drexel demonstrated, prima facie, that it lacked the requisite control over the students’ work and conduct during their employment with Jaidan [a participating co-op employer] to give rise to either an employer-employee or principal-agent relationship. Drexel’s evidence demonstrated that it provided an online recruiting platform on which students searched job descriptions submitted by participating employers and applied for jobs with those employers. Drexel also required that students work 32 hours per week to receive academic credit for the co-op, that students follow Drexel’s code of conduct during the co-op, and that students complete a survey at the end of the co-op to report on their experience. However, the co-op employers decided whether to hire a particular student, paid the co-op students’ salaries, and provided IRS documents. Additionally, employers set the students’ work schedule and were responsible for supervising and training the students. While participating employers were encouraged to communicate with Drexel if there were performance issues so that Drexel could provide support, the participating employer had the authority to terminate the students’ employment. During the time that the students worked at their co-op location, they would have little to no contact with Drexel, which, in the case of the students at issue here, was located approximately 130 miles from where the students were living and working for [the co-op employer]. Sager v Frontpage Invs., 2026 NY Slip Op 02686, Second Dept 4-29-26

Practice Point: Consult this decision for insight into the level of supervision required for an employer-employee or principal-agent relationship which will trigger vicarious liability.

 

, ,

THE FACT THAT THE EMPLOYER MAY BE VICARIOUSLY LIABLE FOR AN EMPLOYEE’S NEGLIGENCE DOES NOT WARRANT DISMISSAL OF THE ACTION AGAINST THE EMPLOYEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee defendant should not have been granted summary judgment on the ground her employer (New Beginnings) was vicariously liable for the employee’s negligence. Allegedly, plaintiff was injured receiving a “facial treatment” from the employee (Wallace):

… [T]he doctrine of respondeat superior does not entitle Wallace to summary judgment dismissing the complaint insofar as asserted against her. “While an employer may be vicariously liable for the torts of its employee while acting within the scope of his or her employment, a claim against the employer does not necessarily preclude a separate claim against the employee” … . “It is ordinarily immaterial to an agent’s liability that the agent’s tortious conduct may, additionally, subject the principal to liability” (Restatement [Third] of Agency § 7.01[b]). “It is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent’s torts although the agent’s conduct may also subject the principal to liability” … . Castellazzo v David’s New Beginnings, LLC, 2026 NY Slip Op 02625, Second Dept 4-29-26

Practice Point: The fact that an employer may be vicariously liable for an employee’s negligence does not preclude a suit against both.

 

, , , ,

PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to a call that a man (the patient) had fallen and could not get up. According to a witness, plaintiff thought the patient was faking, ridiculed him and offered only minimal assistance. The patient submitted a complaint to the defendant (the Department of Health). The defendant served plaintiff with a notice of hearing and statement of charges indicating plaintiff may be subject fines and revocation of the EMT license. Plaintiff then sued defendant seeking a declaration that he was entitled to a jury trial:

The Seventh Amendment to the US Constitution preserves the right of trial by jury in suits at common law where the value of the controversy exceeds $20 (see US Const, 7th Amend). Longstanding precedent from the Supreme Court of the United States holds that the Seventh Amendment “applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same” … . * * *

The NY Constitution provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2). * * *

… [P]laintiff asserts that defendant, in essence, seeks to punish him for tortious conduct through the imposition of a civil penalty, which traditionally entailed a jury trial … . What plaintiff fails to directly confront, however, is that the nature of this proceeding is predicated on a violation of the statutory scheme that regulates plaintiff’s professional license and that the remedies sought are tethered thereto. … Specifically, Public Health Law article 30 places the responsibility on defendant to regulate the provision of emergency medical services in the state (see Public Health Law §§ 3000-3034) and, in furtherance of that responsibility, defendant has promulgated regulations governing the training, examination and licensing of EMTs … .Ball v New York State Dept. of Health, 2026 NY Slip Op 02494, Third Dept 4-23-26

Practice Point: Plaintiff, an EMT, after a complaint from a patient, was facing a Department of Health hearing at which his EMT license could be revoked. Plaintiff unsuccessfully sought a declaration that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution and Article I, section 2 of the NY Constitution.

 

, ,

THERE ARE QUESTIONS OF FACT WHETHER PLAINTIFF WAS TERMINATED FROM HIS EMPLOYMENT BASED ON “FAMILIAL STATUS” AND “CAREGIVER” DISCRIMINATION PURSUANT TO THE NYS AND NYC HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the causes of action for “familial status” and “caregiver” discrimination under the Human Rights Law should not have been dismissed in this wrongful termination action:

… [T]he record presents issues of fact as to plaintiff’s familial and caregiver status causes of action under the State HRL [Human Rights Law], which prohibits discrimination based on “familial status,” including against “any person who . . . has a child or is in the process of securing legal custody” of a child (Executive Law §§ 292[26][a], 296[1][a]), and the City HRL, which prohibits discrimination based on “caregiver status” (Administrative Code of City of NY § 8-107[1][a]). On July 11, 2016, the day before DSC’s [defendant’s] decision to put plaintiff on probation, plaintiff attended a hearing in a custody proceeding regarding his daughter. According to plaintiff, Richard Greenberg, DSC’s co-chief investment officer, questioned whether plaintiff “was sure [he wanted] to do this” (that is, to participate in custody proceedings) and encouraged him to “[g]ive up on [his] daughter.” In addition, at plaintiff’s year-end review meeting, which plaintiff recorded, Greenberg gave him negative feedback about his job performance and stated, “I just want to know . . . is your heart still in it, you know? . . . I mean you’ve got all these things going on.”

Additionally, in January 2017, Jane Park, the firm’s director of business development and client relations, authored a memo for Smith and Greenberg that discussed whether to disclose to firm clients that a more junior investment analyst had received firm equity while plaintiff had not. The memo posited telling clients, as one option, that plaintiff “is going through some personal issues which make[] the current timing less than ideal for ownership disbursement.” Park testified at her deposition that she was referring to the fact that plaintiff was “distracted” because of his divorce and custody fight. …

Taken together, the evidence could lead a reasonable factfinder to conclude that defendants’ proffered reasons for denying plaintiff equity and ultimately terminating him were “false, misleading, or incomplete,” and that plaintiff was, in fact, terminated on the basis of his familial or caregiver status … . Mezinev v Donald Smith & Co., 2026 NY Slip Op 02209, First Dept 4-14-26

Practice Point: Consult this decision for insight into what constitutes “familial status” and “caregiver” discrimination in the context of an alleged wrongful termination of employment pursuant to the NYS and NYC Human Rights Law.

 

, ,

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

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

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

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

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

 

, ,

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

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

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

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

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

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

 

, , , , ,

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

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

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

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

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

 

, ,

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

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

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

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

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

 

, ,

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

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

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

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

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

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

 

, , ,

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

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

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

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

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy