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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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Lowering Health Insurance Benefits for School-District Retirees Below Level Afforded Active Employees Violated the Insurance Moratorium Statute

The Fourth Department determined lowering the health insurance benefits for retired school district employees below the level of benefits afforded active employees violated the Insurance Moratorium Statute:

The moratorium statute sets a minimum baseline or “floor” for retiree health benefits, and that “floor” is measured by the health insurance benefits received by active employees … . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees … . Matter of Anderson v Niagara Falls City School Dist, 2015 NY Slip Op 01098, 4th Dept 2-6-15


Criteria for Determining the Propriety of the Termination of a Probationary State Employee Explained

The Second Department explained the criteria for determining the propriety of the termination of a probationary (state) employee:

“The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law” … . Here, the petitioner failed to carry his burden of presenting competent proof that his termination was improper … . The record demonstrates that the petitioner's performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith… . Matter of Triola v Daines, 2015 NY Slip Op 00896, 2nd Dept 2-4-15


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Appellate Court Defers to Agency Interpretation of a Statute When Specialized Knowledge Required

The Third Department affirmed the State Budget Director’s determination that state employees normally not entitled to overtime pay are eligible for overtime pay if they worked more than 47.5 hours in a week as a result of Hurricane Sandy.  Petitioners sought overtime pay for those who worked more than 40 hours per week.  The Third Department explained when an appellate court must defer to the statutory interpretation made by a state agency (the court so deferred here):

Initially, we must determine whether the Budget Director’s interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency’s expertise in the matters covered by the statute, but will accord no such deference when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” … . Although the Civil Service Law provides that the “workweek for basic annual salary” for employees who are eligible for overtime shall not exceed 40 hours (Civil Service Law § 134 [1]), overtime-ineligible employees are expressly excluded from the coverage of that section, and nothing else in the legislation defines the phrase “normal workweek” as used in Civil Service Law § 134 (6) for such employees or prescribes the number of hours contained in such a workweek. Under these circumstances, in our view, the number of hours in the “normal workweek” of an overtime-ineligible state employee necessarily implicates the Budget Director’s specialized knowledge of state employment practices and “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . Accordingly, this Court will defer to the Budget Director’s determination and uphold it if it is not irrational or unreasonable … . Matter of Kent v Cuomo, 2015 NY Slip Op 00680, 3rd Dept 1-29-15

 

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Proof Requirements for an Employment-Discrimination Action (Executive Law 296) Explained

In finding that the employer demonstrated a non-discriminatory reason for firing the plaintiff, the Third Department explained the employment-discrimination proof requirements and analytical criteria under the Human Rights Law (Executive Law 296 (1)(a)):

To support a prima facie case of discrimination under the Human Rights Law (see Executive Law § 296 [1] [a]), a plaintiff must establish: “(1) that he [or she] is a member of the class protected by the statute; (2) that he [or she] was actively or constructive discharged; (3) that he [or she] was qualified to hold the position from which he [or she] was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of . . . discrimination” … . Assuming that low threshold is met, “[t]he burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” … . If, in turn, the employer proffers the required nondiscriminatory reasons, “the plaintiff can avoid summary judgment by proving that the employer’s stated reasons were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” … . “Notably, a challenge by a discharged employee to the correctness of an employer’s decision does not, without more, give rise to the inference that the employee’s discharge was due to . . . discrimination” … . Stated another way, “[i]t is not enough for the plaintiff to show that the employer made an unwise business decision, or an unnecessary personnel move. Nor is it enough to show that the employer acted arbitrarily or with ill will. These facts, even if demonstrated, do not necessarily show that [discrimination] was a motivating factor. [A] [p]laintiff cannot meet his [or her] burden of proving pretext simply by refuting or questioning the defendant[‘s] articulated reason” for terminating the plaintiff’s employment … . Miranda v ESA Hudson Val Inc, 2015 NY Slip Op 00670, 3rd Dept 1-29-15

 

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