Employment Law – Page 44 – New York Appellate Digest

THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the summary judgment motions brought by two of the defendants in this traffic accident case should have been granted. There was a question of fact whether the driver (Koureichi) who allegedly injured the plaintiff was an employee or a subcontractor of defendant Hudson. But the other two defendants, Stop & Shop and Subcontracting Concepts (SCI), demonstrated Koureichi was not an employee:

As a general rule, an employer who hires an independent contractor, as distinguished from an employee or servant, is not liable for the negligent acts of the independent contractor … . Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability … . Factors relevant to assessing control include whether a worker (1) worked at [her or] his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule … .

Contrary to Hudson's contention, the evidence it submitted in support of its motion, including, inter alia, a transcript of Koureichi's deposition testimony, did not eliminate all triable issues of fact as to whether Koureichi was an independent contractor when the accident occurred … . Among other things, the evidence submitted by Hudson indicated that Koureichi worked for Hudson six days per week, from 10:00 a.m. to 7:00 p.m., that he was required to call a supervisor employed by Hudson if he could not report to work, that he wore a t-shirt provided by Hudson, for which he paid Hudson, which had “Same-Day Delivery” printed on it, and that he had a two-way radio provided by Hudson, for which Koureichi also paid Hudson. In light of Hudson's failure to establish its prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's denial of Hudson's motion for summary judgment dismissing the complaint insofar as asserted against it, without regard to the sufficiency of the plaintiffs' opposition papers … .

However, the Supreme Court should have granted Stop & Shop's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Stop & Shop established, prima facie, its entitlement to judgment as a matter of law. That evidence included Koureichi's deposition testimony that he did not know the names of any of Stop & Shop's managers, that he had no contact with them, and that Stop & Shop's managers did not control the hours that he worked or how he made deliveries. That evidence established, prima facie, that Stop & Shop did not control the means and method of Koureichi's work. In opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court also erred in denying SCI's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by SCI, including Koureichi's deposition testimony that he did not have any contact with anyone at SCI, and that he didn't know SCI's function, other than to issue his paychecks, established that SCI did not control the means and method of Koureichi's work, and therefore, established SCI's prima facie entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact. Nachman v Koureichi, 2018 NY Slip Op 06752, Second Dept 10-10-18

NEGLIGENCE (EMPLOYMENT LAW, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, EMPLOYMENT LAW, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/SUBCONTRACTORS (NEGLIGENCE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))

October 10, 2018

PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a probationary city employee, was not given the requisite seven day's notice of termination. The remedy was to provide petitioner with seven days pay:

… [T]he petitioner correctly contends that, in terminating his employment, the City failed to comply with 4 NYCRR 4.5(b)(5)(iii). That regulation requires, among other things, that a probationer who is to be discharged from employment for unsatisfactory service receive written notice at least one week prior to termination (see 4 NYCRR 4.5[b][5][iii]). Here, the petitioner received written notice on the day his employment was terminated, and the City did not rebut the petitioner's assertion that he had not received oral notice prior to that date. Accordingly, it cannot be said that the City substantially complied with 4 NYCRR 4.5(b)(5)(iii)… .

Under the circumstances of this case, including that the petitioner was deprived of the required seven days' notice but was notified of his discharge prior to the expiration of his period of probation … , we deem it appropriate to award him the relief he has requested on appeal for the failure to comply with 4 NYCRR 4.5(b)(5)(iii), specifically, one day's pay, at the salary he was earning at the time of his discharge, for each of the seven days he was not provided the requisite notice … . The Court of Appeals has determined that such a remedy is appropriate in the analogous context in which a school authority fails to give a probationary teacher 30 days' written notice of termination, as required by Education Law § 3019-a … . Seven days of pay is what the petitioner would have received had the City complied with the applicable regulation by making the petitioner's discharge effective seven days after it provided the written notice. Matter of Santucci v City of Mount Vernon, 2018 NY Slip Op 06745, Second Dept 10-10-18

MUNICIPAL LAW (EMPLOYMENT LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))

October 10, 2018

Education-School Law, Employment Law, Negligence

NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the school, including touching:

… [T]he DOE defendants failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision of Denice. The DOE defendants' own submissions in support of their motion for summary judgment raised a triable issue of fact as to whether the DOE took the appropriate measures to evaluate Denice's employment and fitness at the time he was allowed to intern at the school… . Moreover, there is a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Denice “placed [Denice] in a position to cause foreseeable harm” … .

Generally, liability may not be imposed upon school authorities where all of the improper acts against a student occurred off school premises and outside school hours … . Here, however, the DOE defendants' submissions demonstrated that, although the sexual abuse ultimately occurred in the infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with Denice during school hours on a regular basis. During these times, Denice engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the DOE knew or should have known of such behavior and Denice's propensity for sexual abuse … . Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Second Dept 10-3-18\

NEGLIGENCE (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT)

October 3, 2018

Contract Law, Employment Law

THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an agreement signed after the employment agreement superseded the employment agreement. Therefore the dispute was subject to arbitration based upon the second agreement:

After [plaintiff] and defendant Mirae Asset Securities (USA) Inc. had entered into an employment agreement which contained a forum selection clause, plaintiff executed a “Uniform Application for Securities Industry Registration or Transfer” (Form U-4), which contains an arbitration provision. We find that the Form U-4 supersedes the employment agreement and therefore that the parties' dispute must be arbitrated.

This dispute is governed by state contract law principles … . The first principle is that “a subsequent contract regarding the same matter will supersede the prior contract” … . The determination whether a subsequent agreement is superseding is fact-driven … . Plaintiff's execution of a valid U-4 Form constituted an agreement to limit his contractual remedies when he signed the U-4 Form… . The U-4 Form encompasses the same employment-related disputes as were addressed in the employment agreement. Thus, the forum selection clause was effectively extinguished … . Hyuncheol Hwang v Mirae Asset Sec. (USA) Inc., 2018 NY Slip Op 06485, First Dept 10-2-18

EMPLOYMENT LAW (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/CONTRACT LAW (EMPLOYMENT LAW, THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/FORUM SELECTION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/ARBITRATION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))

October 2, 2018

Constitutional Law, Election Law, Employment Law, Municipal Law

DEPARTMENT OF AGRICULTURE’S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP).

The Court of Appeals, in a one-sentence memorandum, over a two-judge dissent, determined that the Department of Agriculture's regulation which prohibits employees responsible for inspecting agricultural facilities (like milk plants) from seeking public office (i.e., a county legislator) was not an unconstitutional restriction of free speech. Matter of Spence v New York State Dept. of Agric. & Mkts., 2018 NY Slip Op 06071, CtApp 9-18-18

CONSTITUTIONAL LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/ELECTION LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/MUNICIPAL LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/EMPLOYMENT LAW (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))/AGRICULTURE, DEPARTMENT OF (DEPARTMENT OF AGRICULTURE'S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP))

September 18, 2018

Employment Law, Medical Malpractice, Negligence

HOSPITAL DID NOT DEMONSTRATE PHYSICIANS ALLEGED TO HAVE COMMITTED MALPRACTICE WERE NOT EMPLOYEES AND WERE NOT NEGLIGENT, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the hospital's motion for summary judgment in this medical malpractice action was properly denied. The hospital did not demonstrate that the two physicians alleged to have committed malpractice were not employees of the hospital and did not demonstrate the two physicians did not deviate from the acceptable standards of medical care:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . Therefore, when hospital employees, such as resident physicians and nurses, have participated in the treatment of a patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees have merely carried out the private attending physician's orders … . These rules shielding a hospital from liability do not apply when: (1) “the staff follows orders despite knowing that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'”… ; (2) the hospital's employees have committed independent acts of negligence … ; or (3) the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital … . “Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice was an independent contractor and not a hospital employee'” … . …

The hospital defendants failed to establish, prima facie, that both physicians alleged to have committed malpractice, the two attending nephrologists, were independent contractors [not emplyees]. Dupree v Westchester County Health Care Corp., 2018 NY Slip Op 06000, Second Dept 9-12-18

MEDICAL MALPRACTICE (HOSPITAL DID NOT DEMONSTRATE PHYSICIANS ALLEGED TO HAVE COMMITTED MALPRACTICE WERE NOT EMPLOYEES AND WERE NOT NEGLIGENT, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, HOSPITAL DID NOT DEMONSTRATE PHYSICIANS ALLEGED TO HAVE COMMITTED MALPRACTICE WERE NOT EMPLOYEES AND WERE NOT NEGLIGENT, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EMPLOYMENT LAW (MEDICAL MALPRACTICE, HOSPITALS, HOSPITAL DID NOT DEMONSTRATE PHYSICIANS ALLEGED TO HAVE COMMITTED MALPRACTICE WERE NOT EMPLOYEES AND WERE NOT NEGLIGENT, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/HOSPITALS (MEDICAL MALPRACTICE, HOSPITAL DID NOT DEMONSTRATE PHYSICIANS ALLEGED TO HAVE COMMITTED MALPRACTICE WERE NOT EMPLOYEES AND WERE NOT NEGLIGENT, MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

September 12, 2018

Administrative Law, Employment Law, Human Rights Law

NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE’S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, in a matter of first impression, determined that terminating a person the employer (Fidessa) believed was married to another employee who had left to work for a competing employer stated a cause of action for discrimination based upon marital status under the New York City Human Rights Law:

The City HRL states, in relevant part: “It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived . . . marital status . . .(2) To refuse to hire or employ or to bar or to discharge from employment such person or (3) To discriminate against such person in compensation or in terms, conditions or privileges of employment” … .

From the complaint it appears that Fidessa treated plaintiff and his partner differently from [a] similarly situated couple based on its perception that they were married to one another and the members of the other couple were not. Thus, the question is whether discrimination based on “marital status” encompasses discrimination based on marital status in relation to a person relevant to Fidessa. In other words, is an employer prohibited from discharging an employee because of the employee's marriage to a particular person.

For the purposes of this analysis, the fact that defendant was not alleged to be “biased against” married couples in all circumstances is of no moment: the factor in terminating plaintiff's employment was plaintiff's marital status in relation to the employee who left the company. Thus, plaintiff's termination was based on his marital status. Morse v Fidessa Corp., 2018 NY Slip Op 05975, First Dept 9-6-18

HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT))/EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT))/ADMINISTRATIVE LAW (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT))/MARITAL STATUS (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE'S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT))

September 6, 2018

Employment Law, Fraud, Insurance Law, Tax Law

IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined a qui tam (whistleblower) action alleging a captive insurance company (Moody's) violated the New York False Claims Act (NYFCA) by filing false tax returns properly survived the motion to dismiss. The court further held that the relator's retaliation claim, alleging unlawful termination of employment for raising questions about Moody's taxes, also properly survived the motion to dismiss. Captive insurance company's receive favorable tax treatment only if they meet certain criteria:

While the typical NYFCA claim involves the State paying out money on account of a false claim, a “reverse false claim” occurs when someone uses a false record to conceal or avoid an obligation to pay the government … . A defendant knowingly makes a false claim under the NYFCA if the defendant had “actual knowledge” of the falsity of the claim or acted “in deliberate ignorance” or “reckless disregard” of its truth or falsity (State Finance Law § 188[3][a]).

The motion court correctly found that the complaint sufficiently alleges that Moody's “tax treatment of MAC was aggressive, risky, and/or abusive due to its sham nature,” and that Moody's knowingly submitted false claims. * * *

The complaint sufficiently alleges that defendants had knowledge of relator's protected activity and that they retaliated against him because of his protected activity. Relator alleges that he repeatedly complained about MAC's noncompliance with the tax laws to Moody's tax department as well as to his superiors … . Anonymous v Anonymous, 2018 NY Slip Op 05963, First Dept 8-30-18

INSURANCE LAW (IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/CAPTIVE INSURANCE COMPANIES (IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/TAX LAW (INSURANCE LAW, IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/FRAUD (INSURANCE LAW, TAX LAW, IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/EMPLOYMENT LAW (IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/QUI TAM (IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))/WHISTLEBLOWER (IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT))

August 30, 2018

Employment Law, Negligence, Negligent Infliction of Emotional Distress

NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant fencing club's motion for summary judgment in this negligent hiring and supervision, negligent infliction of emotional distress action should have been granted. A fencing coach (Kfir) who worked for the club engaged in an unlawful sexual relationship with infant plaintiff, for which the coach went to prison. The Second Department held that the respondeat superior cause of action was not viable because the coach was not acting within the scope of his employment. The court further found that the defendant club demonstrated it did not have notice of the coach's criminal propensities and did not breach a duty owed plaintiffs:

… Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action seeking to hold it liable under the doctrine of respondeat superior, as Kfir's misconduct was committed for wholly personal motives, and not in furtherance of Fencers Club's business and within the scope of his employment … .

… Fencers Club established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no knowledge of any propensity by Kfir to commit sexual misconduct, either prior to or during his employment with Fencers Club . The coaches, parents, and students of the club were shocked when they learned of the criminal misconduct, which took place outside of Fencers Club's premises and in Kfir's apartment. Although it was later revealed that Kfir gave massages to the infant plaintiff and another fencing … student in a workout room, and that he made sexually provocative comments toward the infant plaintiff during fencing lessons, these incidents were never reported to Fencers Club. Much of the communication between the infant plaintiff and Kfir took place by cell phone or text message, outside of Fencers Club's purview. …

Although the plaintiffs point to the fact that Fencers Club did not conduct criminal background checks prior to hiring their instructors, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Here, there was no evidence that Fencers Club had knowledge of any facts that would have caused a reasonably prudent person to conduct a criminal background check on Kfir. Moreover, the plaintiffs failed to come forward with any evidence that a criminal background check of Kfir would have revealed a propensity to commit sexual assault … . … Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent infliction of emotional distress by demonstrating that it did not breach a duty of care owed to the infant plaintiff … . KM v Fencers Club, Inc., 2018 NY Slip Op 05923, Second Dept 8-29-18

NEGLIGENCE (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT HIRING AND SUPERVISION (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RESPONDEAT SUPERIOR (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

August 29, 2018

Employment Law, Workers' Compensation

PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF’S RECOVERY RESTRICTED TO WORKERS’ COMPENSATION BENEFITS (SECOND DEPT).

The Second Department determined plaintiff, who worked for Manpower Group and was injured on property owned by Crystal Springs, was not able to sue Crystal Springs. Plaintiff was deemed to be a special employee of Crystal Springs and his only remedy was Workers' Compensation:

Pursuant to Workers' Compensation Law §§ 11 and 29(6), an employee who is entitled to receive workers' compensation benefits may not sue his or her employer based on injuries sustained by the employee. “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” … .

“A special employee is one who is transferred for a limited time of whatever duration to the service of another'”… . ” [A] person's categorization as a special employee is usually a question of fact'” … “However, the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact'” … . ” 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.'” James v Crystal Springs Water, 2018 NY Slip Op 05756, Second Dept 8-15-18

WORKERS' COMPENSATION (PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))/EMPLOYMENT LAW (SPECIAL EMPLOYEE, WORKERS' COMPENSATION, PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))/SPECIAL EMPLOYEE (WORKERS' COMPENSATION, PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF'S RECOVERY RESTRICTED TO WORKERS' COMPENSATION BENEFITS (SECOND DEPT))

August 15, 2018