Employment Law – Page 52 – New York Appellate Digest

AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT.

The Third Department noted that an agreement to pay commissions is an agreement that can be performed in one year, so an oral agreement to pay commissions is not subject to the statute of frauds:

“An agreement to pay an at-will employee commissions earned during the period of his or her employment is capable of performance within one year and does not violate the [s]tatute of [f]rauds” … . Here, the gravamen of plaintiff’s complaint is not about renewal commissions that accrued after his resignation from WorldClaim … . Rather, plaintiff seeks the payment of commissions that he claims were earned while he was still employed by WorldClaim … . Indeed, the complaint alleged that plaintiff, “[d]uring the period from approximately April 2011 to January 2012, . . . earned $104,525 in commissions from sales, [and] $25,000 in monthly bonuses.” Given that plaintiff was still employed by WorldClaim during this alleged time period, the statute of frauds does not bar plaintiff’s claim for unpaid commissions … . Kieper v The Fusco Group Partners Inc., 2017 NY Slip Op 05782, 3rd Dept 7-20-17

EMPLOYMENT LAW (STATUTE OF FRAUDS, COMMISSIONS, AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)/CONTRACT LAW (EMPLOYMENT LAW, COMMISSIONS, STATUTE OF FRAUDS, AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)/STATUTE OF FRAUDS (EMPLOYMENT LAW, COMMISSIONS, AN AGREEMENT TO PAY COMMISSIONS CAN BE PERFORMED IN ONE YEAR AND THEREFORE IS NOT SUBJECT TO THE STATUTE OF FRAUDS 3RD DEPT)

July 20, 2017

Arbitration, Civil Procedure, Employment Law, Insurance Law

A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT.

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Moskowitz, over a two-justice dissenting opinion, determined an arbitration provision in plaintiff insurance agent’s employment contract was unenforceable with respect to collective actions, here a class action concerning wage and hour claims:

… [W]e conclude … that arbitration provisions such as the one in [plaintiff’s] contract, which prohibit class, collective, or representative claims, violate the National Labor Relations Act (NLRA) and thus, that those provisions are unenforceable.

In reaching this conclusion, we agree with the reasoning in Lewis v Epic Sys. Corp. (823 F3d 1147 [7th Cir 2016], cert granted __ US __, 137 S Ct 809 [2017]), the recent case from the United States Court of Appeals for the Seventh Circuit, which addressed the enforceability of arbitration agreements prohibiting collective actions. In Lewis, the plaintiff employee agreed to an arbitration agreement mandating that wage and hour claims could be brought only through]individual arbitration and requiring employees to waive “the right to participate in or receive money or any other relief from any class, collective, or representative proceeding” … . The arbitration agreement also included a clause stating that if the waiver were unenforceable, “any claim brought on a class, collective, or representative action basis must be filed in a court of competent jurisdiction” … .

… The plaintiff [in Lewis] argued that the arbitration clause violated the NLRA because it interfered with employees’ right to engage in concerted activities for mutual aid and protection, and was therefore unenforceable … .

The Seventh Circuit denied the employer’s motion to proceed under the arbitration clause, declining to enforce a clause that precluded employees from “seeking any class, collective, or representative remedies to wage-and-hour disputes” because the clause “violate[d] Sections 7 and 8 of the NLRA” (id. at 1161). According to the Court, section 7 of the NLRA provided that employees have the right to engage in concerted activities, and concerted activities “have long been held to include resort to . . . judicial forums” (id. at 1152) [internal quotation marks omitted]. The Seventh Circuit also found that a lawsuit filed “by a group of employees to achieve more favorable terms or conditions of employment” is considered to constitute “concerted activity” under section 7 of the NLRA (id.) [internal quotation marks omitted). Accordingly, the Court held, contracts such as the one at issue were unenforceable under the NLRA because they “stipulate away employees’ [s]ection 7 rights or otherwise require actions unlawful under the NRLA” (id. at 1155). Gold v New York Life Ins. Co., 2017 NY Slip Op 05695, 1st Dept 7-18-17

CIVIL PROCEDURE (CLASS ACTIONS, EMPLOYMENT LAW, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CLASS ACTIONS (EMPLOYMENT LAW, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/EMPLOYMENT LAW (CLASS ACTIONS, ARBITRATION, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/ARBITRATION (EMPLOYMENT LAW, CLASS ACTIONS, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CONTRACT LAW (EMPLOYMENT LAW, ARBITRATION, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/INSURANCE LAW (EMPLOYMENT LAW, ARBITRATION, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)

July 18, 2017

Defamation, Employment Law, Immunity, Municipal Law

QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was a child molester and she had tapes to prove it. There was evidence the statements were motivated solely by malice (and therefore not protected by qualified immunity) and were made within the scope of Cramer’s employment:

We conclude that defendants met their initial burden of establishing that any alleged statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with plaintiff’s application for membership, and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice’ ” … . “If [Cramer’s] statements were made to further the interest protected by the privilege, it matters not that [she] also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication’ ” … . Plaintiff provided the deposition testimony of the assistant fire chief, who testified that Cramer told him to “go tell [plaintiff] for me that if he continues with this application I’m going to pull out tapes that I have that shows he’s a child molester and that it’s going to ruin his life.” Plaintiff also provided the deposition testimony of a woman who was at the Fire Department … and heard Cramer call plaintiff a “child molester”; that same witness heard Cramer call plaintiff a pedophile in 2011. A Fire Department employee testified in his deposition that he heard Cramer say to her husband that she had proof that plaintiff was a “child molester.” In light of that evidence, we therefore conclude that plaintiff raised an issue of fact whether Cramer’s statements were motivated solely by malice and thus are not protected by a qualified privilege.

“An employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made”… . We further conclude that defendants failed to establish their entitlement to judgment as a matter of law that Cramer was not acting within the scope of her employment when she allegedly made the statements to the assistant fire chief and/or at the meeting … . Stevenson v Cramer, 2017 NY Slip Op 05353, 4th Dept 6-30-17

June 30, 2017

Civil Procedure, Employment Law

PLAINTIFF’S MOTION TO COMPEL POST-JUDGMENT DISCOVERY TO DETERMINE DAMAGES SHOULD HAVE BEEN GRANTED, DEFENDANTS’ ANSWER HAD BEEN STRUCK FOR FAILURE TO COMPLY WITH A DISCOVERY ORDER AND A DEFAULT JUDGMENT HAD BEEN GRANTED.

The Fourth Department determined plaintiff’s motion seeking discovery to determine damages after defendants’ answer had been struck should have been granted. Plaintiff alleged defendants had breached “noncompete” provisions of an employment agreement. Defendant (Morrow) did not show up for a deposition and defendants did not provide discovery. Supreme Court granted plaintiff’s motion to strike the answer and enter judgment for plaintiff, but denied plaintiff’s motion for post-judgment discovery:

We agree with plaintiff that it is entitled to discovery in order to establish its damages … . A “defendant’s obligation to afford [a] plaintiff the opportunity to pursue discovery [is not] terminated when the answer [is] stricken,” inasmuch as a plaintiff should not be “handicapped in the proof of its damages by [a] defendant’s prior defiance of orders, notices, or subpoenas calling for his production of records or the taking of a deposition” … . Thus, a “plaintiff, if it chooses to do so, may press its right to discovery in advance of the inquest, whether for direct use as evidence in proving its damages or for the procurement of information that may lead to such evidence” … . Here, plaintiff is entitled to an order compelling Morrow’s compliance with the discovery demands insofar as those demands are “material and necessary” to establish plaintiff’s damages (CPLR 3101 [a]). We therefore reverse the order insofar as appealed from and grant that part of the motion seeking an order to compel discovery from Morrow with respect to damages only. ICM Controls Corp. v Morrow, 2017 NY Slip Op 05355, 4th Dept 6-30-17

June 30, 2017

Employment Law, Human Rights Law

THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION.

The Second Department, reversing Supreme Court, determined the sexual discrimination and retaliation causes of action against supervisors, to whom plaintiffs complained about the alleged sexual harassment by the president of the company, should not have been dismissed. It was alleged the supervisors failed to take appropriate action on the complaints and thereby aided and abetted the discrimination and (re: one supervisor) the retaliation causes of action:

An employee who did not participate in the primary violation itself, but who aided and abetted that conduct, may be individually liable based on those actions under both the NYSHRL [New York State Human Rights Law] and the NYCHRL [New York City Human Rights Law] … . The NYSHRL and the NYCHRL each provide that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [thereunder], or to attempt to do so” … . Where a defendant provided, or attempted to provide, assistance to the individual or individuals participating in the primary violation, he or she may be found liable for aiding and abetting discriminatory conduct … .

“[T]he law is clear that a supervisor need not make derogatory comments or unwelcome sexual advances to subject himself or herself to liability under the [NYSHRL]. Rather, . . . a supervisor’s failure to take adequate remedial measures can rise to the level of actual participation’ under [the NYSHRL]” … . Indeed, a failure to conduct a proper and thorough investigation or to take remedial measures upon a plaintiff’s complaint of discriminatory conduct is sufficient to impose liability on an aiding and abetting theory … . * * *

… [The]submissions demonstrated that triable issues of fact exist as to whether [defendant supervisor] had the “power to do more than carry out personnel decisions made by others”… and, thus, may be held individually liable for the alleged retaliation. Ananiadis v Mediterranean Gyros Prods., Inc., 2017 NY Slip Op 05058, 1st Dept 6-21-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/SEXUAL DISCRIMINATION (EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/RETALIATION (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/AIDING AND ABETTING (SEXUAL DISCRIMINATION AND RETALIATION, EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, RETALIATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)

June 21, 2017

Education-School Law, Employment Law

SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW).

The Third Department, in a full-fledged opinion by Justice Devine, reversing (modifying) Supreme Court, determined the respondent school district’s unilaterally contracting with an outside party for a prekindergarten program, without first negotiating with the teachers’ union, did not constitute an improper practice:

Respondent Lawrence Union Free School District (hereinafter the District) implemented a universal prekindergarten program pursuant to Education Law § 3602-e. Program tasks were first performed by employees working in a collective bargaining unit exclusively represented by petitioner [teachers’ union] but, in 2012, the District unilaterally contracted with an outside eligible agency to staff and operate it. Petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging a violation of the Public Employees’ Fair Employment Act (… the Taylor Law… ), namely, that the District did not negotiate in good faith about outsourcing the work … . * * *

The Legislature … created a “comprehensive package for a school district’s decision to” fashion a prekindergarten program plan and “withdr[e]w that decision from the mandatory bargaining process,” crafting a mechanism for public consultations that included affected collective bargaining units and left little time for traditional collective bargaining… . A school district was empowered by Education Law § 3602-e (5) (d) to contract without interference in implementing a plan crafted after that process … .

… “[T]here is no absolute bar to collective bargaining over” the outsourcing of prekindergarten work to an outside agency… and, as we have held, an agreement reached after collective bargaining on the subject is enforceable… . Inasmuch as the clear language of Education Law § 3602-e compels the conclusion that negotiation is not required to begin with, however, PERB was right to determine that the absence of negotiation did not constitute an improper practice under the Taylor Law. This does not preclude petitioner from seeking impact negotiations in the future. Matter of Lawrence Teachers’ Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, 3rd Dept 6-15-17

EDUCATION-SCHOOL LAW (TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/EMPLOYMENT LAW (TEACHERS’ UNION, TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/COLLECTIVE BARGAINING AGREEMENT (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/PREKINDERGARTEN PROGRAM (EDUCATION-SCHOOL LAW, TAYLOR LAW, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/TAYLOR LAW (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/IMPROPER PRACTICE (EDUCATION-SCHOOL LAW, COLLECTIVE BARGAINING AGREEMENT, TEACHERS’ UNION, PREKINDERGARTEN PROGRAM, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))

June 15, 2017

Employment Law, Human Rights Law

PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination suit should not have been dismissed:

As ostensibly nondiscriminatory reasons for terminating plaintiff, defendants pointed to plaintiff’s alleged management deficiencies; her alleged insubordination, by, among other things, refusing a directive to extend her vacation; and her alleged concealment of her romantic relationship with a subordinate.

In response, plaintiff raised issues of fact as to pretext … . Among other things, plaintiff points out that her termination on June 30, 2011, represented a drastic shift from the favorable performance review which she received only three weeks earlier. Indeed, plaintiff was on vacation for nearly a week of that three-week time period. Nothing in the record explains why any defects in plaintiff’s management style, identified in her otherwise favorable performance review, suddenly warranted her termination. Defendants’ assertion that plaintiff was insubordinate and hostile is belied by the record, which shows nothing more than innocuous e-mail exchanges between plaintiff and her superior … during the several days prior to the termination. Finally, defendants’ assertion that plaintiff’s concealing of her relationship with her subordinate was a ground for termination is belied by, among other things, emails exchanged only a week earlier, demonstrating that the subordinate would be reporting to another manager, in order to avoid any appearance of impropriety.

Plaintiff has also pointed to evidence of gender bias, in the form of [her superior’s] holding women, including plaintiff, to a different standard than men in the workplace. Nor were these mere “stray remarks.” To the contrary, [her superior] told plaintiff that she lacked “emotional intelligence and empathy toward others,” which were perceived as shortcomings in her ability to manage her subordinates, and which were “amplified because [she was] in a high profile seat and female.” Barone v Emmis Communications Corp., 2017 NY Slip Op 04787, 1st Dept 6-13-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/GENDER DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)

June 13, 2017

Employment Law, Municipal Law

UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge Garcia, determined two nurses facing disciplinary action for alleged time-card irregularities were entitled to some of the information upon which the charges were based. The nurses were employed by New York City’s Human Resources Administration (HRA). When the request for the information was denied, the “New York State Nurses Association (NYSNA, or the Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to information, under New York City Collective Bargaining Law (NYCCBL) … “. The Board found most of the requested information should be turned over to the NYSNA and the Court of Appeals agreed:

The Board held that section 12-306 (c) (4) [of the NYCCBL] extended to information “relevant to and reasonably necessary for the administration of the parties’ agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining,” citing several decisions of PERB [Public Employees Relations Board], the Board’s analogue for state employees … . As noted by the Board, PERB “has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances” … .

* * * Article VI, section 1.D. of the CBA [Collective Bargaining Agreement] defines “grievance” to include: “a claimed wrongful disciplinary action taken against an employee.” Thus, by defining “grievance” to include disciplinary action, the CBA, has, as a matter of contract, incorporated as to disciplinary actions the information requirements applicable to grievances. Matter of City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, CtApp 6-8-17

MUNICIPAL LAW (EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/EMPLOYMENT LAW (MUNICIPAL EMPLOYEES, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/DISCIPLINARY PROCEEDINGS (MUNICIPAL LAW, EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)

June 8, 2017

Civil Procedure, Employment Law, Negligence

CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, in an action stemming from a traffic accident, determined the complaint stated a cause of action for negligent hiring, retention and supervision for which punitive damages were sought. The facts were not discussed, but the court explained when a cause of action for negligent hiring seeking punitive damages is not precluded by the doctrine of respondeat superior:

Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a demand for punitive damages insofar as asserted against the defendant driver. At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support the allegation that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages … .

” Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training'” … . However, “such a claim is permitted when punitive damages are sought based upon facts evincing gross negligence in the hiring or retention of an employee” … . Gipe v DBT Xpress, LLC, 2017 NY Slip Op 04258, 2nd Dept 5-31-17

NEGLIGENCE (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/EMPLOYMENT LAW (NEGLIGENCE, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/CIVIL PROCEDURE (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/PUNITIVE DAMAGES (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENT HIRING, RETENTION, SUPERVISION (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/TRAFFIC ACCIDENTS (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)

May 31, 2017

Administrative Law, Civil Procedure, Employment Law

SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER.

The Second Department noted that the administrative law judge (ALJ) in this action which resulted in the termination of petitioner’s employment as a corrections officer must be authorized to conduct the disciplinary proceedings by the commissioner of corrections. The petitioner contested his termination on the ground the ALJ was not so authorized. Supreme Court relied upon a letter of authorization which was not in the record. The Second Department held that was error and remitted the matter to allow the respondent to submit an authorization letter:

Civil Service Law § 75, which governs the procedure applicable to the subject disciplinary proceeding, provides that “[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose” (Civil Service Law § 75[2]). In the absence of a written designation, the removing body or hearing officer has no jurisdiction to recommend the discipline of an employee and any disposition flowing from such a proceeding will be void … . This jurisdictional defect is not waived by a petitioner’s failure to object at a disciplinary hearing … .

Here, in denying the petition and dismissing the CPLR article 78 proceeding, the Supreme Court erred in considering and relying upon the 1992 letter as a written designation pursuant to Civil Service Law § 75(2) since that letter was outside the record, and was not relied upon by the respondents, whose papers were rejected by the court … .

Moreover, the Supreme Court also erred in not considering the respondents’ cross motion to dismiss the petition. Pursuant to CPLR 404(a), the respondents were permitted to raise objections in point of law by a motion to dismiss the petition. Given the improper rejection of the respondents’ papers and the particular circumstances of this case, the court should have afforded the respondents an opportunity to submit a designation letter conferring jurisdiction upon the ALJ who conducted the subject disciplinary hearing prior to determining the petition on the merits. Matter of Lindo v Ponte, 2017 NY Slip Op 04282, 2nd Dept 5-31-17

ADMINISTRATIVE LAW (SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/EMPLOYMENT LAW (CIVIL SERVICE LAW, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL PROCEDURE (CIVIL SERVICE LAW, ADMINISTRATIVE LAW JUDGES, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CORRECTIONS OFFICER (DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/ADMINISTRATIVE LAW JUDGES (CORRECTIONS OFFICERS, DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL SERVICE LAW (EMPLOYMENT LAW, DISCIPLINARY PROCEEDINGS, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)