Employment Law – Page 24 – New York Appellate Digest

ALTHOUGH THE DEFENDANTS MAY HAVE BEEN NEGLIGENT IN HIRING THE DEFENDANT WHO SEXUALLY ASSAULTED THE SEVEN-YEAR-OLD PLAINTIFF, THERE WAS NO CONNECTION BETWEEN DEFENDANT’S EMPLOYMENT AND THE PLAINTIFF OR THE OFFENSE, WHICH OCCURRED NEAR PLAINTIFF’S HOME; THEREFORE THE NEGLIGENT HIRING AND RETENTION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent hiring and retention cause of action against the church defendants should have been dismissed. The complaint alleged plaintiff, who was seven years old, was abducted near her home, taken to a secluded area, and sexually assaulted by the defendant. The court noted that the church defendants may have been negligent in hiring the defendant, but there was no connection between the offense committed by the defendant and his employment:

With respect to a cause of action alleging negligent hiring and retention, “[t]he employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee” … . As such, a necessary element of a cause of action to recover damages for negligent hiring and retention is a nexus or connection between the defendant’s negligence in hiring and retaining the offending employee and the plaintiff’s injuries … . Here, the plaintiff failed to allege any such nexus, since the sexual assault occurred far from the Church’s premises, and there is no allegation in the complaint that the plaintiff had any prior contact with the alleged attacker, any prior relationship with any of the defendants, or even any knowledge, at the time of the sexual assault, that the alleged attacker was employed by the defendants. Roe v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church, 2021 NY Slip Op 05360, Second Dept 10-6-21

October 6, 2021

Employment Law, Negligence, Vehicle and Traffic Law, Workers' Compensation

DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Paddock Chevrolet was immune from suit by its employee in this traffic accident case. Plaintiff, a salesman for Paddock, was a passenger in a car owned by Paddock which was being test-driven at the time of the accident. The court noted that the Workers’ Compensation Law protected Paddock from vicarious liability as the owner of the car pursuant to the Vehicle and Traffic Law:

Workers’ Compensation Law § 11 provides that “[t]he liability of an employer prescribed by [section 10] shall be exclusive and in place of any other liability whatsoever, to such employee, . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . .” We thus agree with Paddock that plaintiff’s claims against it are barred.

Paddock correctly contends that New York has rejected the “dual capacity” doctrine … , rendering it irrelevant whether the amended complaint and cross claims asserted against Paddock were based on its status as plaintiff’s employer or its status as the owner of the vehicle who is vicariously liable for the negligence of a nonemployee driver under Vehicle and Traffic Law … . Mansour v Paddock Chevrolet, Inc., 2021 NY Slip Op 05190, Fourth Dept 10-1-21

October 1, 2021

Administrative Law, Employment Law, Evidence

THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN’S BUSINESS DEVELOPMENT ERRONEOUSLY IGNORED THE EVIDENCE PRESENTED AT THE HEARING BEFORE AN ADMINSTRATIVE LAW JUDGE WHICH DEMONSTRATED PETITIONER MET THE CRITERIA FOR A WOMEN-OWNED BUSINESS ENTERPRISE (WBE) (THIRD DEPT).

The Third Department, annulling the determination of the Division of Minority and Women’s Business Development of the Department of Economic Development (the Division), found the petitioner had demonstrated it met the criteria for certification as a woman-owned business enterprise (WBE). In its contrary ruling, the Division erroneously ignored the evidence presented at the hearing before the Administrative Law Judge (ALJ) which had ruled in favor of the petitioner:

Petitioner contends that the determination should be annulled because the Director refused to consider the testimonial evidence introduced at the administrative hearing in assessing the regulatory factors, and we agree. … [F]ollowing a determination denying an application for certification as a WBE, the applicant is, upon written request, entitled to an administrative hearing before an independent hearing officer … . The hearing officer must thereafter conduct the hearing based upon the information included in the request for a hearing as it relates to the information that was provided by the applicant with its certification application, and each party must be accorded a full opportunity to present evidence, including calling witnesses and cross-examining other parties and their witnesses … . The hearing officer may also “request additional information and take other actions necessary to make an informed decision” … , which ultimately must be based upon his or her “consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence” … .

The proof adduced at the administrative hearing was highly relevant to the issue of whether petitioner met the criteria for WBE certification. Matter of Scherzi Sys., LLC v White, 2021 NY Slip Op 05143, Third Dept 9-30-21

September 30, 2021

Administrative Law, Employment Law, Municipal Law

THE 3RD DEPARTMENT ANNULLED THE DETERMINATION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) WHICH FOUND THAT THE FIREFIGHTERS DID NOT DEMONSTRATE THE CITY FAILED TO NEGOTIATE BEFORE UNILATERALLY IMPOSING A SALARY REDUCTION (THIRD DEPT).

The Third Department, reversing the Public Employment Relations Board (PERB), determined the city did not fulfill its obligation to negotiate a change in salary for its firefighters:

PERB acknowledged petitioners’ claims that the City made a unilateral determination to end the past practice of paying night differential, check-in pay and holiday pay in calculating regular wages and benefits to current employees should they receive General Municipal Law § 207-a (2) benefits in the future, but rejected those contentions upon the ground that petitioners had only documented the City’s intent to discontinue those payments with regard to retirees to whom it owed no duty to bargain. … The parties … orally stipulated at the hearing … that “those affected [by the City’s unilateral change in benefits] are those in the unit as of the alleged unilateral change,” necessarily referring to current employees who are members of the bargaining units rather than the retirees who are not … . The parties later reinforced that point by stipulating that the unilateral change was made “in a uniform[] fashion to all members of both bargaining units,” again using language necessarily referring to current employees to whom the City owes a duty to bargain. In the absence of any indication that counsel lacked authority to enter into those unambiguous factual stipulations or that some cause sufficient to invalidate a contract existed for setting the stipulations aside, they are binding … . Thus, as the parties stipulated that the City’s unilateral actions impacted current employees in the bargaining units, PERB’s finding that the record was barren of proof on that point is not supported by substantial evidence, and it follows that PERB’s determination must be annulled … . Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 2021 NY Slip Op 05144, Third Dept 9-30-21

September 30, 2021

Employment Law, Negligence, Workers' Compensation

DEFENDANT DID NOT DEMONSTRATE PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE WAS A SPECIAL EMPLOYEE OR A CO-EMPLOYEE OF DEFENDANT AT THE TIME OF THE ACCIDENT; THEREFORE DEFENDANT’S WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s “Workers’-Compensation-exclusive-recovery” defense should have been dismissed. Plaintiff was involved in a traffic accident driving defendant’s van, which plaintiff alleged was not properly maintained. Defendant unsuccessfully argued plaintiff was a special employee or a co-employee of defendant and therefore plaintiff’s only remedy was Workers’ Compensation:

“Generally, workers’ compensation benefits are the sole and exclusive remedy of an employee against an employer or co-employee for injuries sustained in the course of employment (see Workers’ Compensation Law §§ 11, 29[6] … ). “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 … . “A special employee is ‘one who is transferred for a limited time of whatever duration to the service of another,’ and limited liability inures to the benefit of both the general and special employer” … . Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive. Principal factors include who has the right to control the employee’s work, 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. The most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work” … . * * *

… [T]he evidence did not support a conclusion that a special employment relationship existed between the plaintiff and the defendant … at the time of the accident. Furthermore, the evidence indicated that the defendant was not a co-employee of the plaintiff at … the time of the accident. The defendant testified that prior to [the accident], he … began working for another car service company, and that, at the time of the accident, he was in Texas training for another employment opportunity. Chiloyan v Chiloyan, 2021 NY Slip Op 04696, Second Dept 8-18-21

August 18, 2021

Education-School Law, Employment Law, Negligence

THE FACT THAT A CONTRACT DESCRIBES A PARTY AS AN INDEPENDENT CONTRACTOR IS NOT NECESSARILY DISPOSITIVE; DESPITE THE WORDING OF THE CONTRACT, THE COMPLAINT HERE STATED A CAUSE OF ACTION BASED UPON AN EMPLOYER-EMPLOYEE RELATIONSHIP (SECOND DEPT).

The Second Department determined the complaint stated a cause of action against the school district as the employer of a therapist, Silecchia, who allegedly injured plaintiff-student in therapy session. Although the contract between the school district and Silecchia’s employer, PBS, stated PBS was responsible for the conduct of PBS’s employees, evidence suggested some control over PBS by the district:

Although the agreement provided that all employees of the service provider, which was defined as PBS, shall be deemed as employees of the service provider for all purposes and that the service provider alone would be responsible for their work, personal conduct, direction, and compensation, “[t]he fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive” … . Other provisions in the agreement, including the scope of services provision, which provided, … that parent training services shall be in coordination with the students’ classroom teachers and/or at the direction of the District’s Committee on Special Education, provided some indication that the District may have maintained control over the method and means by which PBS, and therefore, Silecchia, were to perform the work … . D. S. v Positive Behavior Support Consulting & Psychological Resources, P.C., 2021 NY Slip Op 04626, Second Dept 8-4-21

August 4, 2021

Employment Law, Municipal Law, Negligence

THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).

The Fourth Department determined the Erie County Sheriff’s Office (ECSO) is not a separate entity apart from the county, and the county may be liable for the acts of the sheriff’s office’s civilian employees pursuant to respondeat superior. The lawsuit alleged the defendants failed to timely rescue plaintiff’s decedent who died in his car during a snowstorm:

A sheriff’s office has no legal identity separate from its corresponding county, “and thus an ‘action against the Sheriff’s [Office] is, in effect, an action against the [corresponding] County itself’ ” … . …

Although a “county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior” … , we conclude that a county may be vicariously liable for the negligent acts of the sheriff’s civilian employees given the general rule that a sheriff’s office does not exist separately from its corresponding county … . Moreover, and contrary to defendants’ further contention, the County is not entitled to immunity under Executive Law § 25 because that statute was not pleaded as an affirmative defense in the answer (see CPLR 3018 [b] …). Abate v County of Erie, 2021 NY Slip Op 03940, Fourth Dept 6-17-21

June 17, 2021

Employment Law, Retirement and Social Security Law

PETITIONER, A POLICE OFFICER, WAS ASKED BY HER SUPERVISOR TO PICK UP A LARGE BREAKFAST ORDER FOR THE PRECINCT; PETITIONER SLIPPED AND FELL ON ICE IN THE PARKING LOT WHEN RETURNING WITH THE ORDER; PETITIONER WAS “IN SERVICE” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW WHEN SHE FELL (THIRD DEPT).

The Third Department determined the petitioner, a police officer, was in service when she slipped on ice and her application for accidental disability benefits should not have been denied on that ground. The matter was sent back for a determination when the fall was an “accident” within the meaning of the Retirement and Social Security Law:

Respondent’s determination that petitioner was not in service because she was performing “a personal activity” at the time of her 2011 injury is not supported by substantial evidence. Petitioner testified that, on the day of the incident, her supervisor asked if the desk duty officers were going to get breakfast. According to petitioner, the supervisor then requested that someone contact a patrol officer that was on the road and have him or her pick up breakfast for the precinct. … A fellow officer that was in the precinct at the time volunteered to go and asked petitioner to accompany him to help carry the large order. According to petitioner, her supervisor then gave her permission to go and he paid for the breakfast order. Upon her return to the precinct with the breakfast order, she slipped on ice while walking in the parking lot. In our view, by going out to pick up a breakfast order for the precinct at the behest of her supervisor, petitioner was performing a work duty rather than engaged in a personal activity … . Matter of Arroyo v DiNapoli, 2021 NY Slip Op 03895, Third Dept 6-17-21

June 17, 2021

Employment Law, Medical Malpractice, Negligence

THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the medical malpractice action against Dr. Drummond, a first-year resident, should have been dismissed because he did not exercise any independent medical judgement but merely followed the direction of his supervisors when medication was discontinued:

Defendants met their initial burden on the motion by presenting the affidavit of an expert who opined that, as a first-year resident, Dr. Drummond could not and did not make any medical decisions independently and that he properly wrote the discharge instruction to discontinue the medication only after discussing and confirming that decision with the appropriate supervisors, a practice that complied with the applicable standard of care … . Defendants also submitted the deposition testimony of Drs. Drummond and Bath, which established that Dr. Drummond consulted with Dr. Bath prior to decedent’s discharge and confirmed with him that the decision had been made to discontinue the medication. Plaintiff failed to raise a triable issue of fact in opposition … . Based on that conclusion, we likewise agree with defendants that the court erred in denying that part of the motion seeking summary judgment dismissing the complaint and any cross claims against Kaleida Health insofar as the complaint asserts a claim of vicarious liability based on the alleged conduct of Dr. Drummond … . Bieger v Kaleida Health Sys., Inc., 2021 NY Slip Op 03772, Fourth Dept 6-11-21

June 11, 2021

Contract Law, Employment Law, Municipal Law

THE CITY OF ROCHESTER LOCAL LAW WHICH PURPORTED TO TRANSFER THE POWER TO DISCIPLINE POLICE OFFICERS TO THE POLICE ACCOUNTABILITY BOARD (PAB) IS INVALID AND CANNOT BE ENFORCED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the City of Rochester Local Law which transferred the power to discipline police officers from the police chief to the Police Accountability Board (PAB) is invalid and cannot be enforced:

… [t]he challenged Local Law No. 2 necessarily falls insofar as it takes police discipline out of collective bargaining because, in that respect, it conflicts with the general law mandating collective bargaining over police discipline (see Civil Service Law § 204 [2] … ). As the Court of Appeals has explained, “a local law is inconsistent [with the general law] where local laws prohibit what would be permissible under State law”… , and by creating a permanent administrative apparatus for disciplining police officers that is impervious to alteration or modification at the bargaining table, Local Law No. 2 necessarily and structurally prohibits something that … is statutorily mandated for the City of Rochester: collective bargaining of police discipline. The court therefore properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochester police officers without regard to collective bargaining. Matter of Rochester Police Locust Club, Inc. v City of Rochester, 2021 NY Slip Op 03787, Fourth Dept 6-11-21