Employment Law – Page 47 – New York Appellate Digest

MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff maintenance worker’s back injury, caused by picking up a heavy bag of garbage, was not actionable because the injury was from a risk inherent in the work:

The defendant [lessee] established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the subject garbage bag was not over a weight accepted or contractually agreed upon by the defendant and the plaintiff’s employer at the time of the alleged incident, and that the plaintiff’s injury resulted from a risk inherent in his assigned work as a maintenance worker … . Moody v Kelly Drye & Warren, LLP, 2018 NY Slip Op 02454, Second Dept 4-11-18

NEGLIGENCE (MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PERSONAL INJURY, MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

April 11, 2018

FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT).

The First Department determined plaintiff probationary firefighter’s death from dehydration during fire department training (functional skills training or FST) was not the type of occupational injury which is actionable under General Municipal Law 205-a and Labor Law 27-a:

Decedent … , a probationary firefighter, passed away due to dehydration while performing the Fire Academy’s physically demanding Functional Skills Training (FST) exercise course, which was designed to simulate actual firefighting tasks under a controlled environment.

Plaintiff is not entitled to recover under GML § 205-a, as the injuries decedent sustained were not the type of occupational injury that Labor Law § 27-a was designed to protect, but rather, arose from risks unique to firefighting work … . While the performance of the FST course was part of training, and not part of firefighting per se, the ability to perform it efficiently was a necessary and important part of the job, as it ensures that a firefighter could effectively perform the tasks during an actual fire. The risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor. Sears v City of New York, 2018 NY Slip Op 02430, First Dept 4-10-18

MUNICIPAL LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, LABOR LAW, FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/FIREFIGHTERS (MUNICIPAL LAW, LABOR LAW, EMPLOYMENT LAW , FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))

April 10, 2018

Arbitration, Employment Law

ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the arbitrator’s ruling in this sexual harassment action violated public policy and was irrational. The arbitrator agreed with the findings of fact made by the Equal Employment Opportunity (EEO) investigation (which supported the sexual harassment allegations made by Melendez against Aiken) but determined the behavior did not rise to the level of a dischargeable offense:

The arbitrator’s decision fashions a remedy that violates public policy. Moreover, it contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on Melendez to take appropriate action if she felt Aiken’s comments were inappropriate. Such a “blame the victim” mentality inappropriately shifts the burden of addressing a hostile work environment onto the employee. The arbitrator’s decision belies the realities of workplace sexual harassment. The fact that the victim did not earlier report Aiken’s behavior is not atypical and should in no way be construed as absolving Aiken of his misconduct.

The arbitrator’s decision effectively prevents petitioners from following their policies and fulfilling their legal obligations to protect against workplace sexual harassment. It is the employer’s responsibility to implement appropriate policies to protect against workplace harassment, including the institution of appropriate complaint procedures that encourage victims to come forward, and the implementation of appropriate sanctions that are designed to deter offensive behavior. …

Accordingly, public policy prohibits enforcement of the arbitration award in this case … . …

Further, the arbitrator’s decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that Aiken did not violate the workplace sexual harassment policy … . Matter of New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, First Dept 4-10-18

EMPLOYMENT LAW (SEXUAL HARASSMENT, ARBITRATION, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/ARBITRATION (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/SEXUAL HARASSMENT (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/DISCRIMINATION (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))

April 10, 2018

Civil Procedure, Employment Law, Negligence

ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff was not entitled to discover the reports of other accidents involving defendant bus driver. Plaintiff’s children were injured after getting off the bus. Both the driver (Morin) and his employer (CDTA) were sued. Although the bill of particulars mentioned negligent hiring and retention, the complaint did not. Therefore there were no grounds for the discovery of the reports of prior accidents:

The allegations of negligence set forth in the complaint, as they relate to Morin and CDTA, pertain solely to Morin’s operation of the bus on the day of the incident … . Specifically, the complaint alleges that, after discharging the infant passengers, Morin “negligently remained in that position for a considerable period of time, causing the bus to obstruct the path of travel for other vehicles in violation of the Vehicle and Traffic Law[].” It further alleges that Morin was “negligent, careless and reckless” in failing to illuminate his hazard lights or any other signal to alert drivers of the presence of the bus during that time. Critically absent from the complaint is any allegation of direct negligence on the part of CDTA. Thus, the complaint “gives not the slightest indication of a theory of liability of negligent supervision[, hiring or retention]”… . Although plaintiff alleged a theory of negligent hiring and retention in his bill of particulars, “[i]t is well settled that a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial . . . [, and it] may not be used to allege a new theory not originally asserted in the complaint” … . Schonbrun v DeLuke, 2018 NY Slip Op 02386, Third Dept 4-5-18

NEGLIGENCE (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/BUSES (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/TRAFFIC ACCIDENTS (BUSES, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT)/CIVIL PROCEDURE (COMPLAINTS, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/COMPLAINTS (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/BILL OF PARTICULARS (ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/DISCOVERY (ACCIDENT REPORTS, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/ACCIDENT REPORTS (NEGLIGENT HIRING AND RETENTION, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/EMPLOYMENT LAW (NEGLIGENT HIRING AND RETENTION, ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))/NEGLIGENT HIRING AND RETENTION (ACCIDENT REPORTS, DISCOVERY , ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT))

April 5, 2018

Contract Law, Employment Law

THE FACT THAT PLAINTIFF ATTORNEY (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT).

The First Department determined plaintiff’s breach of an oral contract cause of action properly survived a motion to dismiss. Plaintiff was an at-will employee of a law firm and sought to enforce an oral agreement entitling him to 50% of the fees generated by work he brought in. In addition the court noted that the breach of an implied contract and unjust enrichment were properly pled in the alternative:

The statute of frauds (General Obligations Law § 5-701[a][1]) does not bar the alleged oral agreement between plaintiff and defendant law firm, pursuant to which the firm agreed to pay plaintiff 50% of the legal fees it earned on cases that he procured or originated and performed work on. In pertinent part, the statute renders void an agreement that “[b]y its terms is not to be performed within one year from the making thereof.” The fact that plaintiff was an at-will employee, i.e., he could be terminated at any time … , made the oral agreement capable of completion within the one-year period … . The fact that legal fees earned during the one-year period would not be paid until after the period had ended did not make the agreement incapable of completion within the period … .

Plaintiff’s allegations, supplemented by email and affidavits by other associates at the firm attesting to a course of dealing, state a cause of action against the law firm for breach of implied contract… and unjust enrichment… . These causes of action are properly pleaded in the alternative … . Goldfarb v Romano, 2018 NY Slip Op 02411, First Dept 4-5-18

CONTRACT LAW (STATUTE OF FRAUDS, THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/STATUTE OF FRAUDS (THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/ORAL CONTRACT (STATUTE OF FRAUDS, THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/IMPLIED CONTRACT (THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/UNJUST ENRICHMENT (THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/EMPLOYMENT LAW (ORAL CONTRACT, STATUTE OF FRAUDS, THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))/ATTORNEYS (EMPLOYMENT LAW, ORAL CONTRACT, STATUTE OF FRAUDS, THE FACT THAT PLAINTIFF (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT))

April 5, 2018

Civil Procedure, Contract Law, Employment Law

DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that an exchange of correspondence supported plaintiff’s allegation of the existence of an employment contract and a breach of that contract. The documentary evidence submitted by the defendant did not utterly refute the allegations in the complaint. Therefore the defendant’s motion to dismiss was properly denied:

… [W]e conclude that, based on all the documentary evidence proffered by defendant, a reasonable fact-finder could determine that a binding contract was formed. Ertel’s [the CEO’S] initial email to plaintiff stated that “[t]he terms of our offer are the same [as the] terms of your existing contract” — apart from “a clarification” concerning an issue that plaintiff characterizes as minor — and outlined the core terms that were included in the 2009 Agreement. He added that, if plaintiff had “[a]ny further questions” he should consult his “existing contract.” Inasmuch as this email explained that “the terms of the offer” were to be nearly identical to the terms of plaintiff’s existing contract, a reasonable fact-finder could interpret it as evincing an objective manifestation of defendant’s intent to enter into a bargain, such that plaintiff was justified “in understanding that his assent to that bargain [was] invited and [would] conclude it”… . Put differently, it could reasonably be inferred that Ertel’s email constituted a valid offer by defendant. In response to that email, plaintiff wrote “I accept. pls [sic] send contract,” to which Ertel replied, “Mazel. Looking forward to another great run.”… Affording plaintiff the benefit of every favorable inference, this exchange — in essence, we “offer” and “I accept,” followed by an arguably congratulatory exclamation, coupled with a forward-looking statement about the next stage of the parties’ continuing relationship — sufficiently evinces an objective manifestation of an intent to be bound for purposes of surviving a motion to dismiss … . Although Ertel’s email referenced one outstanding “clarification,” the parties’ further communications indicate that such clarification was incorporated into the first draft of the new agreement sent by Zeliger [general counsel] to plaintiff, and no evidence was offered to suggest that plaintiff resisted that change to the terms of the 2009 Agreement. We reject defendant’s argument that plaintiff’s contract claim should have been dismissed because the additional correspondence defendant proffered in support of its motion to dismiss reflects a lack of mutual assent to material terms — such as plaintiff’s minimum guaranteed compensation and the length of the non-compete term — and that this indefiniteness renders the purported contract invalid as a matter of law. As the Appellate Division concluded, that correspondence does not conclusively refute contract formation … . Kolchins v Evolution Mkts., Inc., 2018 NY Slip Op 02209, CtApp 3-29-18

CONTRACT LAW (CORRESPONDENCE, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMPLOYMENT LAW (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CIVIL PROCEDURE (MOTION TO DISMISS, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CPLR 3211 (DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CORRESPONDENCE (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMAILS (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/LETTERS (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))

March 29, 2018

Employment Law, Negligence

PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this slip and fall case should have been granted. The risk to plaintiff was inherent in her work:

… [T]he plaintiff testified that at the time of the accident she was employed by a nonparty to clean the subject building. Her duties included the weekly removal of garbage and material to be recycled from the basement of the building. The plaintiff was engaged in the performance of that task when the accident occurred. When asked what caused her to fall, she explained that “there was a lot of garbage” in the basement, including “cardboard all around.”

Where, as here, the plaintiff is a worker whose claim is based upon premises liability, the landowner’s duty is to provide the worker with a safe place to work. A landowner “need not guard against hazards inherent in the worker’s work, hazards caused by the condition the worker is engaged to repair, or hazards which are readily observed by someone of the worker’s age, intelligence, and experience” … .

Under the circumstances here, the defendant established its prima facie entitlement to judgment as a matter of law by showing that the risk of slipping on a piece of cardboard in the building’s basement was inherent in the plaintiff’s work … . Rojas v 1000 42nd St., LLC, 2018 NY Slip Op 02194, Second Dept 3-28-18

NEGLIGENCE (SLIP AND FALL, EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (SLIP AND FALL, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

March 28, 2018

Civil Rights Law, Employment Law, Human Rights Law, Municipal Law

PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) plaintiff, an administrative law judge for the New York City Department of Consumer Affairs, stated a cause of action for age discrimination under the NYC Human Rights Law (NYCHRL), (2) plaintiff’s failure to file a Notice of Claim required dismissal of the cause of action alleging a free speech violation of the State Constitution, and (3) plaintiff’s motion for leave to amend the complaint to assert a First Amendment retaliation cause of action pursuant to 42 USC 1983, should have been granted:

The allegations that there was disparate treatment of older employees, including the plaintiff, and that the plaintiff’s disciplinary charges were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the NYCHRL … . …

The plaintiff’s failure to serve a notice of claim requires dismissal of the cause of action alleging violations of the State Constitution … . Contrary to the plaintiff’s contention, the action does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of the plaintiff, and the disposition of the claim will not directly affect or vindicate the rights of others … . Further, although the complaint named the individual defendants in their individual capacities, it alleged retaliation by them as part of their employment, and, thus, the notice of claim requirement applied … . …

The Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross motion pursuant to CPLR 3025(b) for leave to amend the complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC § 1983, for which a notice of claim is not required… . In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit … . Mirro v City of New York, 2018 NY Slip Op 02154, Second Dept 3-28-18

EMPLOYMENT LAW (DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, DISCRIMINATION, RETALIATIO.. N, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/AGE DISCRIMINATION (EMPLOYMENT LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983) (EMPLOYMENT LAW, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))MUNICIPAL LAW (NOTICE OF CLAIM, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/FREE SPEECH (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/FIRST AMENDMENT (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/RETALIATION (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/DISCRIMINATION (EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CIVIL PROCEDURE (AMENDMENT OF COMPLAINT, EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))/CPLR 3025 (AMENDMENT OF COMPLAINT, EMPLOYMENT LAW, DISCRIMINATION, RETALIATION, PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRED A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT))

March 28, 2018

Employment Law, Municipal Law

VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT).

The Fourth Department determined that the termination of a village employee (Jakubowicz) was arbitrary and capricious. The employee was fired because he did not have a commercial driver’s license. However, the Mechanic II position does not explicitly require a commercial driver’s license:

The Village, as limited by its brief, contends that a commercial driver’s license is a minimum qualification for Jakubowicz’s position as a Mechanic II in the Village and that his failure to maintain such minimum qualification required the termination of his employment. We reject that contention. The Mechanic II position in the Village requires, inter alia, “[p]ossession, at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator’s license appropriate for the type of vehicles which the employee may from time to time operate.” ” [B]oth due process and fundamental fairness require that a qualification or requirement of employment be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee’ ” … . Here, the requirement of a commercial driver’s license is not “expressly stated” … . Furthermore, while “an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it” … , the Village here offered Jakubowicz a hearing “to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment.” There is no dispute that a hearing was never held. Matter of Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Fourth Dept 3-23-18

MUNICIPAL LAW (VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))/CIVIL SERVICE LAW (VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT))

March 23, 2018

Civil Rights Law, Employment Law, Intentional Infliction of Emotional Distress, Municipal Law, Negligence

COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff’s child and allegedly false complaints by the officer to the Administration for Children’s Services (ACS):

… [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. …

…[W]e cannot say, as a matter of law, that DeBellis’s actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. …

Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff’s constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home … . …

Despite … allegations of repeated notice to DeBellis’s superiors of her actions, there is no indication … any action was taken to restrain her. Accordingly … plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis’s unconstitutional actions … . …

…[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis … . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment … . Contrary to the City’s argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, “had some personal axe to grind.” Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983) (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

March 22, 2018