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PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over an extensive two-justice dissenting opinion, determined plaintiff had stated a cause of action for gender discrimination under the NYC Human Rights Law, which was deemed broader in scope than the state Human Rights Law. Plaintiff alleged she was treated less well than other employees after she rejected a sexual advance by her supervisor (Cirullo). The supervisor allegedly squeezed plaintiff’s thigh when he sat next to her:

In 2005, the City Council passed the Local Civil Rights Restoration Act of 2005 ,,, , finding that the provisions of the City Human Rights Law had been “construed too narrowly to ensure protection of the civil rights of all persons covered by the law.” The Restoration Act revised the City Human Rights Law … to state: “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.” * * *

… [T]o establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate “by a preponderance of the evidence that she has been treated less well than other employees because of her gender” … . … [F]ederal and state law, limiting actionable sexual harassment to “severe or pervasive” conduct, [is] not appropriate for the broader and more remedial City Human Rights Law … . ,,, [W]e recognize[] an affirmative defense whereby defendants can avoid liability if the conduct amounted to nothing more than what a reasonable victim of discrimination would consider “petty slights and trivial inconveniences” … . * * *

The jury must decide whether Cirullo made a sexual overture, and whether Cirullo created a hostile work environment because Suri rebuffed that overture … . Sexual advances are not always made explicitly. The absence of evidence of a supervisor’s direct pressure for sexual favors as a condition of employment does not negate indirect pressure or doom the claim … . Suri v Grey Global Group, Inc., 2018 NY Slip Op 05627, First Dept 8-2-18

EMPLOYMENT LAW (GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, GENDER DISCRIMINATION, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/MUNICIPAL LAW (GENDER DISCRIMINATION, EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/GENDER DISCRIMINATION (NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))/SEXUAL ADVANCES (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT))

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COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT).

The Second Department determined plaintiff’s employment discrimination action was properly dismissed on collateral estoppel grounds. Plaintiff had brought a discrimination action in federal court which was dismissed. The Human Rights Law (NYCHRL) causes of action in state court, alleging the same facts as alleged in the federal case, were therefore properly dismissed. Defendants were not entitled to dismissal of the breach of contract and quantum meruit causes of action. Because the defendants submitted evidence in support of their motion to dismiss , the motion court treated it as a motion for summary judgment (before issue was joined). The court noted that defendants did not make out a prima facie case in their motion papers. Therefore the sufficiency of plaintiff’s papers need not be considered. The court also explained that where there is a question about the existence of a contract, a quantum meruit cause of action may be brought and the plaintiff is not required to elect his or her remedies:

Here, the factual determinations made by the federal courts with regard to the causes of action alleging discrimination, retaliation, and hostile work environment under Title VII were determinative of the plaintiff’s identical claims asserted in this action pursuant to NYCHRL

CPLR 3211(c) provides, “[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.” Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers … . Karimian v Time Equities, Inc., 2018 NY Slip Op 05583, Second Dept 8-1-18

EMPLOYMENT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CPLR 3211 (C) (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/HUMAN RIGHTS LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CONTRACT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/QUANTUM MERUIT (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))

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PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for violation of the “prevailing wage” requirement of the Labor Law when plaintiff did work for a contractor (Zoria Housing) on properties owned by the NYC Housing Authority (NYCHA):

… [T]he plaintiff stated viable breach of contact causes of action based on violations of statutorily mandated provisions in agreements between Zoria Housing and NYCHA, requiring the payment of prevailing wages and overtime pay. “In situations where the Labor Law requires the inclusion of a provision for payment of the prevailing wage in a labor contract between a public agency and a contractor, a contractual obligation is created in favor of the contractor’s employees, and an employee covered by or subject to the contract, in his or her status as third-party beneficiary to the contract, possesses a common-law cause of action against the contractor to recover damages for breach of such a contractual obligation” … . Here, the complaint alleges, in effect, that Zoria Housing failed to pay the plaintiff “prevailing wages” and overtime pay in breach of municipal contracts that included prevailing-wage and overtime provisions pursuant to the Labor Law (see generally Labor Law §§ 220, 231). The complaint thus stated viable breach of contract causes of action … . Singh v Zoria Hous., LLC, 2018 NY Slip Op 05513, Second Dept 7-25-18

EMPLOYMENT LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/LABOR LAW (PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF STATED A BREACH OF CONTRACT CAUSE OF ACTION BASED UPON DEFENDANT CONTRACTOR’S ALLEGED FAILURE TO PAY THE PREVAILING WAGE FOR WORK ON PROPERTIES OWNED BY THE NYC HOUSING AUTHORITY (SECOND DEPT))

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AN UNPLEADED AFFIRMATIVE DEFENSE MAY BE SUCCESSFULLY RAISED TO DEFEAT A MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department noted that an unpleaded affirmative defense may be successfully raised to defeat a motion for summary judgment:

Defendants allegedly embezzled over $100,000 from plaintiffs, their alleged former employers. Plaintiffs then commenced this action for fraud, conversion, and breach of fiduciary duty. Defendants both counterclaimed for, inter alia, slander per se and the violations of Labor Law §§ 162 (2), 191 (3), 195 (1) (a), and 195 (5). Defendant Carrie Massaro also counterclaimed for a violation of section 198 and for unpaid overtime under the Federal Fair Labor Standards Act (FLSA) … . * * * … [T]he affidavit of plaintiff …. raises triable issues of fact regarding their potential entitlement to the affirmative defense provided by [Labor Law] section 198 (1-b) (ii). Contrary to defendants’ contention, ” [a]n unpleaded affirmative defense may be invoked to defeat a motion for summary judgment’ ” … . Thus, although the court properly refused to dismiss the [Labor Law] section 195 (1) (a) counterclaims, the court erred in granting defendants summary judgment on those same counterclaims given plaintiffs’ potential entitlement to the affirmative defense under [Labor Law] section 198 (1-b) (ii) … . Salahuddin v Craver, 2018 NY Slip Op 05429, Fourth Dept 7-25-18

 

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THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the arbitrator’s finding there was just cause to overlook the grievant’s one-minute tardiness for work. The collective bargaining agreement (CBA) included an eight-step disciplinary procedure for tardiness. Essentially eight instances of tardiness led to termination. Grievant had seven instances of tardiness at the time she was one minute late. She was delayed by a disabled train and she had called 10 minutes before her starting time to say she might be late because of the train:

We agree with respondent that the arbitrator’s award was not irrational. An award is irrational “if there is no proof whatever to justify” it… , and “[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached’ ” … . Here, there is a colorable justification for the arbitrator’s determination. The attendance policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the “just cause” provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases. …

We also agree with respondent that the arbitrator did not exceed a specifically enumerated limitation on his power. The CBA provided that the arbitrator “shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement.” Contrary to petitioner’s contention, the arbitrator did not impose any new requirement upon petitioner before it could discipline its employees and thus did not add to or alter the CBA. As explained above, the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld. The arbitrator did not adopt any new rules that petitioner must follow in future disciplinary cases, and we therefore reject petitioner’s slippery slope argument … . Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Fourth Dept 7-6-18

​ARBITRATION (THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/EMPLOYMENT LAW (ARBITRATION, THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT  (THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT))

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PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department determined plaintiff staffing agency was not entitled to a preliminary injunction in this action to enforce a restrictive covenant which ostensibly prohibited defendant, for a period of time, from working at the hospital where plaintiff had placed him. Defendant had terminated his contract with plaintiff, contracted with a competitor staffing agency, and continued to work at the same hospital. Defendant demonstrated the alternatives to working at the same hospital would either require a 3 to 4 hour commute, or result in his not working at all while he renewed his credentials in Pennsylvania. Plaintiff alleged allowing defendant to continue to work at the hospital would damage its business model and lead to competitors taking away contracts. The Fourth Department noted that the harm to plaintiff would only occur if the court rules in its favor, not during the pendency of the action:

It is well settled that ” [p]reliminary injunctive relief is a drastic remedy [that] is not routinely granted’ ” … . Moreover, “[i]n reviewing an order denying a motion for [a] preliminary injunction, we should not determine finally the merits of the action and should not interfere with the exercise of discretion by [the court] but should review only the determination of whether that discretion has been abused” …

“In order to establish its entitlement to a preliminary injunction, the party seeking the injunction must establish, by clear and convincing evidence, . . . three separate elements: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor’ ” … . Delphi Hospitalist Servs. LLC v Patrick, 2018 NY Slip Op 05100, Fourth Dept 7-6-18

​EMPLOYMENT LAW (RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/RESTRICTIVE COVENANTS (EMPLOYMENT LAW, PRELIMINARY INJUNCTIONS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, EMPLOYMENT LAW, RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))/PRELIMINARY INJUNCTIONS (EMPLOYMENT LAW, RESTRICTIVE COVENANTS, PLAINTIFF STAFFING AGENCY WAS NOT ENTITLED, BASED UPON A BALANCING OF THE EQUITIES, TO A PRELIMINARY INJUNCTION ENFORCING A RESTRICTIVE COVENANT WHICH OSTENSIBLY PROHIBITED DEFENDANT FROM CONTINUING TO  WORK AT THE HOSPITAL WHERE PLAINTIFF HAD PLACED HIM AFTER DEFENDANT TERMINATED HIS CONTRACT WITH PLAINTIFF (FOURTH DEPT))

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THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, reversing Supreme Court, determined that the medical professionals involved with review of an x-ray of plaintiff’s decedent’s chest on behalf of plaintiff’s decedent’s employer did not have a duty to report the findings to the decedent or decedent’s physician. The mass that was seen on the x-ray apparently was cancer and plaintiff’s decedent was not informed. He later asked his employer, NYSEG, about the findings but by then the cancer was incurable:

The chest x ray was performed at defendant Lockport Memorial Hospital and decedent signed a consent form prior to the procedure. The consent form provided, in pertinent part, the following: “I, [decedent], understand that medical examinations done at this facility are for evaluation purposes for either employment suitability or worker’s compensation injury/illness treatment. The examinations done here are not intended to detect all underlying health conditions and do not replace the medical care provided by my personal physician. I hereby consent to the examination for the stated purposes or request the services stipulated of [WNYOM]. Furthermore, I understand that all medical information related to my ability to perform the functions of my job will be reported to the designated employer representatives at my place of employment.” …

“The failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence” … . * * *

… [T]there is no dispute that defendants correctly interpreted the results of the x ray and timely conveyed the results to decedent’s employer. Notably absent from the record is the identity or even existence of decedent’s treating physician. Nor is there any indication that defendants were made aware of any treating physician. Furthermore, the consent form, executed by decedent, specifically indicated that decedent “underst[oo]d that all medical information related to [his] ability to perform the functions of [his] job w[ould] be reported to the designated employer representatives at [his] place of employment.” There is also no dispute that defendants adhered to the requirements set forth in the consent form. We therefore conclude that … there was no duty to decedent and, as stated by the Court of Appeals, “[w]e have been reluctant to expand a doctor’s duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs” … . Kingsley v Price, 2018 NY Slip Op 05088, Fourth Dept 7-6-18

​NEGLIGENCE (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))/EMPLOYMENT LAW  (THE MEDICAL PROFESSIONALS INVOLVED WITH REVIEWING AN X-RAY OF PLAINTIFF’S DECEDENT’S CHEST ON BEHALF OF DECEDENT’S EMPLOYER DID NOT HAVE A DUTY TO INFORM THE DECEDENT OR HIS PHYSICIAN OF THE CANCER FINDINGS (FOURTH DEPT))

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PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court determined plaintiff, who alleged he was punched in the face by defendant bar’s employee (Bonawitz), properly pled causes of action against the bar for negligent hiring and supervision, as well as vicarious liability. Although vicarious liability requires the employee to be acting within the scope of his employment, and a negligent hiring and supervision cause of action requires that the employee act outside the scope of employment, pleading inconsistent theories in the alternative is allowed. The court noted that the “breach of the duty to keep the premises safe” cause of action was properly dismissed because it constituted an attempt to plead vicarious liability for an intentional tort as negligence to avoid the one-year statute of limitations for intentional torts:

The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, “[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training” … . The rationale for this rule “is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training” … . As is apparent from these cases, however, this rule applies where the employee is alleged to have acted negligently, not intentionally.

Plaintiff has adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others … . Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee’s wrongful conduct was intentional … . Thus, plaintiff’s allegations of negligence were timely asserted within the applicable three-year statute of limitations (see CPLR 214 [5] …).

Plaintiff did not directly allege that Bonawitz was acting within the scope of his employment when he punched plaintiff. Even if such allegations were included, allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories in the alternative … . McCarthy v Mario Enters., Inc., 2018 NY Slip Op 05006, Third Dept 7-5-18

​NEGLIGENCE (EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENCE, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CIVIL PROCEDURE (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/CPLR 214 (STATUE OF LIMITATIONS, INTENTIONAL TORTS, ,EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/INTENTIONAL TORTS (STATUTE OF LIMITATIONS, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))/THIRD PARTY ASSAULTS (NEGLIGENCE, EMPLOYMENT LAW, BARS AND RESTAURANTS, THIRD PARTY ASSAULTS, PLAINTIFF ALLEGED HE WAS PUNCHED IN THE FACE BY A BAR EMPLOYEE AND SUED THE BAR FOR BREACH OF A DUTY TO KEEP THE PREMISES SAFE, WHICH WAS PROPERLY DISMISSED AS UNTIMELY, NEGLIGENT HIRING AND SUPERVISION, WHICH SHOULD NOT HAVE BEEN DISMISSED, AND VICARIOUS LIABILITY, WHICH ALTHOUGH INCONSISTENT WITH NEGLIGENT SUPERVISION, CAN BE PLED IN THE ALTERNATIVE (THIRD DEPT))

UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT).

The Third Department determined a seasonal employee of a public benefit corporation who was laid off and re-hired was not entitled to stay with the collective bargaining unit to which he belonged before the lay-off. Petitioner had worked for the Department of Environmental Conservation (DEC) at a ski center. The ski center was transferred from the DEC to Olympic, a public benefit corporation. Under the Public Authorities Law petitioner was entitled to stay with the collective bargaining unit to which he belonged at the DEC. However, after the lay-off, under the terms of the relevant statute, petitioner was properly transferred to the Olympic bargaining unit (with decreased benefits):

This appeal turns on the meaning of the terms “terminated” and “ceases” within the context of Public Authorities Law § 2629 (2) (a). As neither word is defined in the Public Authorities Law and both are words of ordinary import, we interpret them in a manner consistent with “their usual and commonly understood meaning” … . …

Petitioner argues that a layoff is inconsistent with these definitions and merely constitutes a temporary interruption in a career. We disagree, in light of the express statutory provision that an employee whose employment “is terminated or otherwise ceases, by any means” may not return to his or her prior collective bargaining unit upon subsequent rehire (Public Authorities Law § 2629 [2] [a] [emphasis added]). To interpret the language as petitioner urges would render the phrase “by any means” superfluous … . Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Olympic Regional Dev. Auth.. 2018 NY Slip Op 04998, Third Dept 7-5-18

​EMPLOYMENT LAW (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/UNIONS  (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/PUBLIC BENEFIT CORPORATION (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/PUBLIC AUTHORITIES LAW (UNIONS, UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))/COLLECTIVE BARGAINING UNIT (UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT))

, , ,

INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence before the Grand Jury to support several counts dismissed by the motion court. The dismissed counts related to allegedly false information on business records about farm employees’ hours and pay and the employment of a minor (a 14-year-old killed operating heavy farm equipment) in violation of the Labor Law:

“To dismiss an indictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference'” … . * * *

Viewed most favorably to the People, we find that the evidence before the grand jury provided a prima facie case of falsifying business records in the first degree and offering a false instrument for filing in the first degree. Although there was no proof that defendant himself compiled the relevant time sheets or submitted them to [the bookkeeper], the evidence established that employees reported their hours directly to defendant — who regularly paid them in cash off the books — and that defendant was solely responsible for the accuracy of the payroll information, personally certified the accuracy of two amended [the unemployment insurance] forms and instructed one of his employees to lie about the number of hours he worked. * * *

“[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a] defendant of the charge and, therefore, renders the count jurisdictionally valid” … . Here, counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibited employment of a minor in violation of Labor Law § 145, which provides that a knowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor. While County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. People v Park, 2018 NY Slip Op 04985, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/INDICTMENTS (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/GRAND JURY (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/EMPLOYMENT LAW (CRIMINAL LAW, FALSE BUSINESS RECORDS, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/LABOR LAW (CRIMINAL LAW, INDICTMENTS, GRAND JURY, EVIDENCE,  INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/MINORS (EMPLOYMENT LAW, CRIMINAL LAW, LABOR LAW, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/UNEMPLOYMENT INSURANCE (CRIMINAL LAW, EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))

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