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PETITIONER ALLEGED EMPLOYMENT DISCRIMINATION BASED LARGELY ON THE EMPLOYER’S REFUSAL TO ACCOMMODATE PETITIONER’S DISABILITIES BY ALLOWING HER TO WORK REMOTELY FROM HOME; THE EMPLOYER DID NOT PRESENT SUFFICIENT FACTUAL INFORMATION TO WARRANT SUMMARY JUDGMENT; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment on petitioner’s employment discrimination allegations which are based largely on the employer’s refusal to accommodate petitioner’s disabilities by allowing her to work remotely from home. The decision is too detailed to fairly summarize here. The decision lays out in detail what an employer must demonstrate to warrant summary judgment in this context:

“[T]he first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested” … . “[T]he essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement” … . An employer generally cannot obtain summary judgment on a discrimination claim unless the record demonstrates that it engaged in a good faith interactive process … . * * *

To meet its prima facie burden on summary judgment, [the employer] sought to prove that petitioner could not perform those essential functions, even with an accommodation… .

Bereft of rudimentary discovery such as depositions of the parties, [the employer] failed to establish the essential functions of petitioner’s position. “To avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of a job requires a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice” … . * * *

… [The employer] did not address which, if any, of petitioner’s duties must be performed in person. * * *

 … [The employer] failed to demonstrate that petitioner’s requested accommodation would constitute an undue hardship. Matter of Smelyansky v New York State Off. of Gen. Servs., 2026 NY Slip Op 03708, Third Dept 6-11-26

Practice Point: Consult this decision for insight into what an employer must demonstrate to warrant summary judgment on an employment-discrimination action alleging the employer’s failure to accommodate petitioner’s disability.

 

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ALTHOUGH PLAINTIFF IS A NEW JERSEY RESIDENT WORKING FOR A NONDOMICILIARY EMPLOYER, SHE WAS REQUIRED TO MAKE REGULAR VISITS TO HER EMPLOYER’S CLIENT IN NEW YORK CITY; PLAINTIFF ALLEGED SHE WAS SEXUALLY HARASSED, IN NEW YORK CITY, BY THE CLIENT’S EMPLOYEE; BECAUSE THE ALLEGED DISCRIMINATORY CONDUCT “HAD AN IMPACT IN NEW YORK,” NEW YORK HAD SUBJECT MATTER JURISDICTION FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, reversing Supreme Court, determined New York had jurisdiction over this employment discrimination action brought under the NYS Human Rights Law and the NYC Human Rights Law. The plaintiff is a New Jersey resident and Ethicon, alleged to be her employer, is a New Jersey corporation. Plaintiff alleged she was assigned to a sales account for Mount Sinai Health System, Inc. which required her to meet regularly with an manager at Mount Sinai in New York City. Plaintiff alleged Ethicon knew that she would be subject to sexual harassment by the Mount Sinai manager. The First Department held that the term “employer” in the Human Rights Law included the nondomiciliary Ethicon because the discriminatory conduct at issue “had an impact in New York.” ​

​… [T]he issue here is how we should interpret the State HRL’s definition of an “employer” as used in the phrase “all employers within the state” for purposes of liability under the State HRL (Executive Law § 292 [5]). The motion court read this definition as requiring an employer to have a physical presence in New York and therefore found both the State HRL and the City HRL inapplicable to Ethicon, “a New Jersey employer of [plaintiff,] a New Jersey resident.”  * * *

… [T]he Court of Appeals in Hoffman v Parade Publs. (15 NY3d 285 [2010]), adopted an impact test for nonresidents who seek the protection of the City HRL and found that test “relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the City HRL to those who are meant to be protected—those who work in the city” …. . * * *

Thus, the relevant inquiry is whether the alleged discriminatory conduct had an impact in New York regardless of the residency of the parties. Here, plaintiff, a New Jersey resident, alleges that Ethicon, her nondomiciliary employer, assigned her to service a New York-based account, requiring her regular presence at Mount Sinai’s hospital where the alleged traumatic sexual harassment occurred. Plaintiff further alleges that Ethicon was aware of the harassment and nevertheless required her to continue the assignment because of the account’s importance. At the pleading stage, plaintiff’s allegations, among other discriminatory acts, that her Ethicon manager discouraged her from complaining and “coached her to ‘lean into’ the sexual harassment so Mount Sinai would continue using Ethicon’s services” are more than sufficient to allege sexual discriminatory conduct having a concrete impact on plaintiff within New York to confer subject matter jurisdiction. Plaintiff’s residency outside New York does not preclude application of the State HRL or City HRL where the alleged misconduct occurred in New York City and affected plaintiff while she was working there. Arizzo v Ethicon, Inc., 2026 NY Slip Op 03262, First Dept 5-26-26

Practice Point: Consult this opinion for insight into subject matter jurisdiction under the NYC and NYS Human Rights Law. If a nonresident employee of a nondomiciliary corporation, as part of her job, meets regularly with a client in New York City and is sexually harassed by the client, New York has subject matter jurisdiction over Human Rights Law causes of action.​

 

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A SERIES OF REMARKS MADE BY HIS SERGEANT OVER A PERIOD OF YEARS RAISED QUESTIONS OF FACT ABOUT WHETHER THE REMARKS WERE MOTIVATED BY RACIAL ANIMUS; THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s racial discrimination complaint pursuant to the NYC Human Rights Law should not have been dismissed:

Plaintiff stated a cause of action for racial discrimination under the City HRL (see CPLR 3211[a][7]). … [Sergeant Martin] Toczek made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including plaintiff, criticizing racial justice protests in the National Football League by Colin Kaepernick and other NFL players. On one occasion, plaintiff, who is Black, stated to Toczek that the players had a constitutional right to protest, and Toczek replied, “yeah, . . .but it’s my right . . . if I want to like [B]lack people.” Toczek also shared articles about Black NFL players committing crimes and described them as “perps.”

… Toczek directed plaintiff to accompany two White detectives in apprehending an arrestee who “had a history of assaulting police officers who tried to arrest him.” The arrestee had previously assaulted Dan Fox, a white Auto Crimes Unit detective. Plaintiff was on restricted duty at the time because of a shoulder injury and could not carry a gun or a shield. Toczek told plaintiff not to worry because, “[w]hen he sees you, he’s not going to fight, look how big you are,” and further suggested that the arrestee would not assault plaintiff “because, look at [Fox], look at him and look at you.” Plaintiff is 6’7″ and weighs about 260 pounds. Plaintiff suffered a serious injury when the arrestee resisted arrest; he retired shortly afterward with accidental disability benefits for his line-of-duty injury. * * *

… [I]t is a jury issue as to whether Toczek’s other comments about the NFL reflected racial animus. A reasonable juror could conclude that, once Toczek signaled that his objection to the protests was at least in part about race, every other reference to the protests and the NFL became infused with racial animus. * * *

The complaint … sufficiently alleges that Toczek’s assignment of plaintiff to the potentially dangerous arrest was “motivated at least in part by” plaintiff’s race … . * * *

… [A] reasonable juror could interpret Toczek’s assertion that plaintiff’s appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the “classic and common racist trope that Black men are inherently threatening or dangerous” … . Taylor v City of New York, 2026 NY Slip Op 03128, First Dept 5-19-26

Practice Point: Consult this decision for insight into when remarks made over a period of years by a supervisor in the work place can raise a question of fact about whether the remarks were motivated by racial animus and constituted violations of the NYC Human Rights Law.

 

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THE ALBANY LOCAL LAW WHICH GIVES THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY EXCLUSIVE AUTHORITY TO HANDLE POLICE DISCIPLINARY MATTERS IS VALID (THIRD DEPT).

The Third Department, in an extensive full-fledged opinion by Justice Corcoran, determined an Albany local law gave the Commissioner of the Department of Public Safety the exclusive authority to handle police disciplinary matters. The opinion is complex and cannot be fairly summarized here. Matter of City of Albany, N.Y. (Albany Police Benevolent Assn.), 2026 NY Slip Op 03038, Third Dept 5-14-26

 

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DEFENDANTS DESTROYED SPEADSHEETS WHICH MAY HAVE DEMONSTRATED PLAINTIFF’S TERMINATION WAS NOT MOTIVATED BY THE NEED TO CUT COSTS; PLANTIFF IN THIS EMPLOYMENT DISCRIMINATION ACTION WAS ENTITLED TO AN ADVERSE INFERENCE JURY CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants in this employment discrimination action should have been sanctioned for spoliation of evidence. The defendants destroyed retail store spreadsheets which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs. Plaintiff alleged he was terminated because he aided Egyptian employees who complained on national origin or religious discrimination. The First Department held plaintiff was entitled to an adverse inference jury charge:

… [T]he court erred in denying spoliation sanctions. Defendants breached their duty to preserve evidence by destroying retail store spreadsheets which were the only contemporaneous data on profits, payroll, and performance after litigation was reasonably anticipated … . Plaintiff’s October 2017 warning against tampering with accounting and payroll records triggered a preservation obligation that required defendants to suspend routine destruction policies … . Defendants cannot claim the records were deleted in the ordinary course of business, as a routine retention policy is no defense once the duty to preserve attaches … . Further, sanctions are warranted where a party’s negligence or intent deprives an opponent of the means of proving their claim … . Here, the destroyed spreadsheets are central to the issue of pretext. While defendants claim cost-based downsizing as the reason for termination, the destroyed data was the only evidence available to test whether the stores were actually underperforming or if plaintiff’s termination was retaliatory. Because this unique, irrecoverable evidence was within defendants’ exclusive control, its destruction is highly prejudicial. Accordingly, plaintiff should be granted an adverse inference charge at the time of trial. Pescales v Pax Ventures LLC, 2026 NY Slip Op 02942, First Dept 5-12-26

Practice Point: Defendants in this employment discrimination action were sanctioned for destroying financial records which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs.

 

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THE INSTRUCTIONS CONCERNING THE USE OF CELL PHONES DURING A POLICE-DEPARTMENT PROMOTIONAL EXAM WERE AMBIGUOUS; THEREFORE THE DETERMINATION PETITIONERS VIOLATED THE INSTRUCTIONS WAS IRRATIONAL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the New York City Department of Citywide Administrative Services (DCAS), acted irrationally when it found that petitioners-police-officers had violated the prohibition of the use of cell phones before dismissal from a promotional examination. The petitioners did not use their cell phones during the exam. Rather the cell phones were used after completion of the exam but before dismissal from the exam room. The First Department held that the instructions concerning the use of cell phones were ambiguous:

Here, rationality is lacking, not for a want of evidence, but because the standard to which DCAS held petitioners was ambiguous. The notices of violations issued by DCAS specified, among other things, that petitioners breached a test-taking rule providing that, “[b]efore, during and after your test, you are not permitted to use, have turned on or have out in the open: cellular phones.” The rule does not indicate when the cell-phone prohibition begins or when it ends….  Nothing in the rule, which DCAS quoted from the instruction sheet provided to the candidates, suggests the location or locations to which the cell phone prohibition applied. The ambiguity of the rule, coupled with the ambiguity as to when the test concluded (which the executive deputy commissioner acknowledged) and the prevalence of cell phones in the exam room, make the determinations irrational. Matter of Bifulco v City of New York, 2026 NY Slip Op 02772, First Dept 5-5-26

Practice Point: An administrative punishment for a purported rule violation will be deemed irrational if the rule is ambiguous.

 

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THE EDUCATION LAW PRIVILEGE WHICH PROTECTS HOSPITAL QUALITY-REVIEW PROCEEDINGS DID NOT APPLY TO REPORTS ABOUT UNSAFE WORKING CONDITIONS AT THE HOSPITAL; PLAINTIFF IN THIS WRONGFUL TERMINATION ACTION WAS ENTITLED TO DISCOVERY OF THE REPORTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this wrongful termination and retaliation action was entitled to discovery of so-called RL6 reports addressing unsafe working conditions. Defendant hospital claimed the documents were privileged under Education Law § 6527 (3) and the Patient Safety and Quality Improvement Act of 2005 (42 USC § 299b-21 et seq. [hereinafter PSQIA]):

Plaintiff was employed as a nursing assistant and technician within defendant’s secure unit for patients with behavioral health and psychiatric conditions. He commenced this action for wrongful termination and retaliation under Labor Law §§ 740 and 741, claiming that defendant unlawfully fired him after he reported unsafe workplace practices and conditions. During discovery, plaintiff demanded copies of his statements to defendant, including his June 2022 report of safety concerns submitted to defendant’s electronic reporting system. Plaintiff also requested the parties’ communications about the secure unit and defendant’s responses to prior related complaints or concerns. * * *

“[A] party does not obtain the protection of Education Law § 6527 (3) merely because the information sought could have been obtained during the course of a hospital review proceeding[.] . . . The exemption applies only where the information was in fact so obtained” … . In short, the administrator’s conclusory affidavit is insufficient to satisfy defendant’s burden under Education Law § 6527 (3) … . Moreover, defendant conceded, both in its brief and at oral argument, that the RL6 reports were not submitted to a quality assurance or peer review committee. …

Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Adams v Bassett Healthcare Network, 2026 NY Slip Op 02706, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the scope of the Education Law privilege protecting hospital quality-review proceedings. Here the privilege did not extend to employee reports about unsafe working conditions.

 

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THE “RECTAL INTRUSION” BY CORRECTION OFFICERS SEEKING TO FORCE CLAIMANT-INMATE TO COMPLY WITH THEIR ORDERS SHOULD HAVE BEEN CONSIDERED AS AN ELEMENT OF DAMAGES IN THIS BATTERY ACTION AGAINST THE STATE; THE CONDUCT WAS WITHIN THE SCOPE OF THE CORRECTION OFFICERS’ EMPLOYMENT; THE STATE CAN BE HELD VICARIOUSLY LIABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined the court should have considered the insertion of an object in claimant’s rectum as an element of damages in this suit by claimant-inmate against the State. The Court of Claims determined the State could not be vicariously liable because the conduct was outside the scope of the correction-officers’ employment. The Third Department disagreed, noting that the officers were attempting to force claimant to comply with their orders and the conduct was not motivated by sexual gratification:

There is no evidence that the rectal intrusion here was for any of the officers’ personal sexual gratification. Rather, the officers’ statements made during and immediately following the incident, as reported by claimant and credited by the Court of Claims, reflect that the sexually related conduct here was part of an overall — albeit objectively excessive — use of force to compel claimant’s compliance with a directive and, thus, was part of the officers’ employment-related function to enforce discipline within the correctional facility (see Correction Law § 137 [5]; 7 NYCRR 251-1.2 [d] …). … [T]he potential for such abuse of authority, if not the precise vile conduct engaged in here, is expressly addressed in the applicable instructions to correction officers in performing their employment-related disciplinary duties (see generally Correction Law § 137; 7 NYCRR 251-1.2). The record thus establishes defendant’s liability as to that part of the claim for damages related to the rectal intrusion … . Accordingly, we reverse the judgment to the extent that it excluded the same and remit for a new determination of claimant’s damages not inconsistent with this Court’s decision … . C.J. v State of New York, 2026 NY Slip Op 02699, Third Dept 4-30-26

Practice Point: Here the “rectal intrusion” inflicted by correction officers upon claimant-inmate was part of an attempt to force claimant to comply with their orders. Therefore the conduct was withing the scope of the officers’ employment for which the State can be vicariously liable.

 

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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.

 

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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.