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“Independent Contractor Rule”

The Second Department noted the general rule that one who hires an independent contractor will not be liable for the contractor’s negligence:

“As a general rule, one who hires an independent contractor may not be held liable for the independent contractor’s negligent acts” … . Here, the defendant established, prima facie, that the alleged negligence was committed solely by an independent contractor and that, by reason of the above-described “independent contractor rule,” it could not be held liable … Braun v Star Community Publ Group LLC, 2015 NY Slip Op 01599, 2nd Dept 2-25-15

 

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Four-Month Statute of Limitations for Challenging Termination of a Firefighter Runs from the Effective Date of Termination, Not the Date of Notification

The Second Department noted that the four-month statute of limitations for challenging the termination of a probationary firefighter ran from the effective date of the termination, not the date of notification of the termination:

“[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217[1]). Where, as here, a governmental employee is not entitled to a hearing in connection with his or her discharge, the limitations period for commencing a CPLR article 78 proceeding to challenge that discharge “runs from the notice of discharge or the effective date of discharge, if later” … .

Here, although the petitioner was notified of the termination of his probationary employment by letter dated September 13, 2013, and was told not to report for further shifts, the notice set the effective termination date of the petitioner’s probationary employment as September 23, 2013. Accordingly, … the statute of limitations began to run on September 23, 2013. Matter of Bruno v Greenville Fire Dist, 2015 NY Slip Op 01630, 2nd Dept 2-25-15

 

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Criteria for Common Law Indemnification Explained (Not Met Here)—Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property

In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification.  Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma.  Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:

“The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner” … . A party that has actually participated in the wrongdoing is not entitled to indemnification … .

Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff’s injuries … . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor … . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not “patently defective” … . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action … . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15

 

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Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor

The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim).  Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant’s building. The panel had been installed by an independent contractor.  The court explained the relevant analytical criteria:

“The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts” … . One of the exceptions to this general rule is the “nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party “is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated” … .

Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition … . However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel … , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition … . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15

 

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Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant Did Not Submit Proof that Defendant’s Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff’s Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee’s Propensity for Such Conduct

The Second Department determined the motion for summary judgment made by defendant-employer, R & K,  was properly denied. The plaintiff alleged that defendant’s employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair.  The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment.  The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment” … . “Intentional torts as well as negligent acts may fall within the scope of employment” … . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer’s business …, or for conduct which could not have been reasonably expected by the employer … .

Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press’s alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff’s cell phone. * * *

“To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . R & K failed to submit any proof establishing that it did not know and should not have known about Press’s alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press … . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15

 

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No Notice of Claim Requirement for Human Rights Law Action Against City/Questions of Fact About City’s Motivation for Allowing Firefighter Promotion Eligibility Lists to Expire Precluded Summary Judgment in Favor of White Firefighters Alleging Reverse, Disparate Treatment Racial Discrimination

The Court of Appeals, in a full-fledged opinion by Judge Lippman, with concurring and concurring/dissenting opinions, determined that summary judgment should not have been granted to white firefighters who sued the city alleging the promotion eligibility lists were improperly allowed to expire resulting in reverse, disparate treatment racial discrimination. The court first held that the notice of claim requirement for actions against a municipality (General Municipal Law 50-i) does not apply to actions brought under the Human Rights Law.  The court went on to hold that questions of fact about the city’s motivation for allowing the promotion eligibility lists to expire precluded summary judgment:

…[W]e reject the City’s argument for dismissal on the basis of plaintiffs’ failure to file a notice of claim prior to commencement of this action. General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises “[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation.” General Municipal Law § 50-i (1) precludes commencement of an action against a city “for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,” unless a notice of claim has been served in compliance with section 50-e. The Appellate Division departments addressing the issue have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law and “[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” … . Human rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims. Accordingly, we conclude that there is no notice of claim requirement here. * * *

In this case, the issue of liability turns on the factual circumstances behind the City’s actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action” … . * * *

Based on the record before us, we conclude that whether the City had “a strong basis in evidence to believe it [would] be subject to disparate-impact liability” at the time that it terminated the promotion eligibility lists … raises issues of fact that cannot be determined on motions for summary judgment.  Margerum v City of Buffalo, 2015 NY Slip Op 01378, CtApp 2-17-15

 

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Plaintiff Placed Her Mental Condition In Controversy—Defendant Entitled to Have Her Examined by a Psychiatrist

The First Department, in the context of an action for retaliatory discharge, sexual harassment and intentional infliction of emotional distress, determined plaintiff had placed her mental condition in controversy and defendant was entitled to have plaintiff examined by a psychiatrist.  Plaintiff had alleged “extreme mental and physical anguish,” “severe anxiety,” eczema, hair pulling, depression and suicidal feelings:

Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition “in controversy” by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims (CPLR 3121[a]…). Although plaintiff asserts that an examination would be unduly intrusive into private matters, she did not propose conditions or seek a protective order limiting the scope or extent of the examination … . Clark v Allen & Overy LLP, 2015 NY Slip Op 01398, 1st Dept 2-17-15

 

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Town Board and Police Commission Members Entitled to Immunity and Qualified Privilege Re: Defamation Causes of Action—Criteria Described/Power to Terminate Probationary Police Officer Described

The Fourth Department determined statements attributed to members of the town board and police commission with respect to the reasons for plaintiff’s termination as a probationary police officer were protected by governmental immunity and qualified privilege (explaining the relevant criteria).  In addition, the court explained the power to terminate a probationary police officer:

There is complete immunity from liability for defamation for ” an official [who] is a principal executive of State or local government who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension’ . . . , with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, the Town Board has the statutory authority to “make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and of the members thereof” (Town Law § 154) and, as members of the Police Commission, [defendants] were delegated “all the powers relative to police matters conferred upon the town board” (§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” …, and “[t]he privilege of absolute immunity . . . extends to those of subordinate rank who exercise delegated powers’ ” … . …

A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest’ ” … . Here, defendants submitted evidence that, at the time of the alleged slanderous communications, Ulinski was a member of the Police Commission and, therefore, had an interest in plaintiff’s performance as a probationary police officer, and that Ulinski made the communications to persons with a corresponding interest in plaintiff’s performance, namely to a member of the Town Board, and to the president of the union that represented plaintiff … . We further conclude that plaintiffs “failed to raise a triable issue of fact whether the statements were motivated solely by malice” … . * * *

As a probationary police officer, plaintiff could be ” dismissed for almost any reason, or for no reason at all[,]’ . . . [and he] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason” … . Fiore v Town of Whitestown, 2015 NY Slip Op 01361, 4th Dept 2-13-15

 

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QUESTIONS OF FACT WHETHER DENTIST WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR AND WHETHER PLAINTIFF GAVE INFORMED CONSENT (THIRD DEPT).

After finding there was a question of fact whether the dentist (Weiss) who treated plaintiff was an employee of defendant-Toothsavers or an independent contractor, the Second Department determined there was a question of fact about whether plaintiff gave informed consent to the procedure:

“The Toothsavers defendants contend that because Weiss was an independent contractor, not an employee, they cannot be vicariously liable for Weiss’s malpractice. The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced or, more importantly, the means used to achieve the results” … . …

“To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Chan v Toothsavers Dental Care Inc, 2015 NY Slip Op 01236, 2nd Dept 2-11-15

 

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“Arbitrary and Capricious” Defined/Criteria for Elimination of a Public-Employee Position Explained

In affirming the school district's actions in creating a new position and eliminating an existing position, the Fourth Department explained the relevant review standards:

“The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact' . . . Arbitrary action is without sound basis in reason and is generally taken without regard to the facts… . * * *

“It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency . . . , but it may not act in bad faith in doing so . . . , nor may it abolish positions as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged . . . A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith” … . Matter of Ifedigbo v Buffalo Pub Schools, 2015 NY Slip Op 01125, 4th Dept 2-6-15


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