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Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available

The Fourth Department determined Supreme Court should have allowed discovery of documents from MREC which included trade secrets because the documents were indispensable to the defense and were otherwise unavailable:

We agree … that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff’s execution of a confidentiality agreement … . We therefore modify the order accordingly. “Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]”… . Here, MREC met its burden of establishing that the documents sought by plaintiff contained information “not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated” … . We nevertheless conclude that plaintiff established that the documents sought “were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]”  … . Conley & Son Excavating Co Ltd v Delta Alliance LLC, 2014 NY Slip Op 06468, 4th Dept 9-26-14

 

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Teacher’s Subpoena for School Records of a Student Who Testified at the Teacher’s Education Law 3020-a Proceeding Should Have Been Quashed

The Fourth Department determined a subpoena for a student’s school records should have been quashed. The subpoena was served on the school district on behalf of the respondent, a tenured teacher who was the subject of an Education Law 3020-a proceeding.  The alleged misconduct of the student (who testified at the proceeding) occurred outside the classroom and the teacher did not demonstrate the relevance of the requested records:

The record establishes that, following an initial prehearing conference in the section 3020-a proceeding, the Hearing Officer granted respondent’s request for production of the testifying high school students’ records, notwithstanding protections under the Family Educational Rights and Privacy Act of 1974 (FERPA), and thereafter limited production of students’ records to those from seventh grade forward. In connection with that request, the Hearing Officer issued a subpoena duces tecum ordering the production of those student records. Although the Hearing Officer had the authority to order the production of student records that were material and relevant to respondent’s defense (see § 3020-a [3] [c] [iii] [A], [C]), it is well established that, “[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence” … . Where, as here, “the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation,” to show “that the material sought bears a reasonable relation to the matter under investigation” … . Here, the allegations of misconduct against respondent involved activities outside of the classroom, and respondent stated only generally that the students’ records were “highly relevant” in asserting a defense and that the records are “necessary and relevant to the preparation of a defense to the charges on its face.” Thus, in light of respondent’s failure to indicate how the records are reasonably related to respondent’s defense and a factual basis establishing their relevance …, we conclude that the court abused its discretion in refusing to quash the subpoena duces tecum … . Matter of Watertown City Sch Dist v Anonymous, a Tenured Teacher, 2014 NY Slip Op 06444, 4th Dept 9-26-14

 

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Provision in Separation Agreement Which Called for Employment of the Wife by the Husband Deemed an Employment Contract Breached When Wife Opened a Competing Business

The Fourth Department reversed Supreme Court and determined that a provision in a separation agreement which was incorporated but not merged into the divorce decree constituted an employment contract breached when the plaintiff wife opened a competing business.  The reason for the agreement was to allow plaintiff wife to be paid maintenance by defendant husband’s business during the time when the husband was obligated to pay child support.  The wife was a consultant to defendant’s business:

It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” … , and “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . By entering into the Agreement, defendant agreed to employ plaintiff in the event his maintenance obligation terminated during the period of time in which he was still obligated to pay child support. Inasmuch as the language of the Agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence” … .

While we agree with plaintiff and the court that the clear and unambiguous intent of the Agreement was to provide a substitute source of monetary support for plaintiff after defendant’s maintenance obligation terminated, we conclude that the reason defendant agreed to employ plaintiff does not change the fact that the Agreement established an employment relationship with corresponding rights and obligations for both parties.

As we have previously stated, “[a]n employee may not compete with his [or her] employer’s business during the time of his [or her] employment” … . When plaintiff opened a business in direct competition with defendant’s business, plaintiff breached her duty of loyalty to her employer … , thereby permitting defendant to terminate the consultation fees and the employment relationship. Anderson v Anderson, 2014 NY Slip Op 06415, 4th Dept 9-26-14

 

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Election of Remedies Provision in Labor Law 740 Precluded Retaliation Action Based Upon an Alleged Violation of NYC Administrative Code

The Second Department determined plaintiffs’ action for retaliation in employment in violation ov the NYC Administrative Code was barred by the election of remedies provision of Labor Law 740 (7):

[The Administrative Code-based] claim is barred by the election of remedies provision contained in Labor Law § 740(7). Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation … .

The plaintiffs in this action alleged retaliation pursuant to Labor Law § 740 in a prior action … . The claim asserted here pursuant to Administrative Code of the City of New York § 8-107 arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. It is, therefore, barred by the Labor Law § 740(7) election of remedies provision … . The waiver may not be avoided by amending the complaint to withdraw the section 740 claim, as the plaintiffs did in the prior action … . Charite v Duane Reade Inc, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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Election of Remedies Provision of Labor Law 740 (Retaliation in Employment) Does Not Bar a Separate Claim Pursuant to Labor Law 203-c (Placement of Cameras in Employee Restrooms)

The Second Department determined the election of remedies provision of Labor Law 740 (retaliation in employment) did not bar a separate and independent claim pursuant to Labor Law 203-c (placement of video cameras in employee restrooms):

Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” However, the waiver only applies to causes of action arising out of or relating to the same underlying claim of retaliation … . The Labor Law § 203-c cause of action here asserts the separate and independent claim of illegal placement of video cameras in employee restrooms. Thus, it is not barred by the Labor Law § 740(7) election of remedies provision … . Davis v Duane Reade Inc, 2014 NY Slip Op 06295 2nd Dept 9-24-14

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

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One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)

The First Department, over a dissent, determined plaintiff’s action was time-barred pursuant to Labor Law 740 and was not covered by Labor Law 741. Plaintiff sued the NYC Health & Hospitals Corp (HHC) after she was terminated.  She alleged her termination was in retaliation for her objecting to the documentation submitted concerning human-subject research programs.  Plaintiff’s job entailed reviewing the documentation and did not involve caring for patients:

We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because …HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740[4][a]). General Municipal Law § 50-e(5), made applicable to HHC by HHC Act § 20(2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act … .

Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741[2]) taken “because the employee does any of the following:

“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”

Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741[1][a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” … . Matter of Moynihan v New York City Health & Hosps Corp, 2014 NY Slip Op 06038, 1st Dept 9-4-14

 

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Police Officer’s Tripping Over a Fire Hose at the Scene of a Fire Was Not a “Service-Related Accident”

The First Department, over a dissent, determined that a police officer who tripped over a fire hose at the scene of a fire was entitled to ordinary (ODR) , as opposed to accidental (ADR), disability retirement benefits:

Not every line of duty injury will result in an award of ADR … . When the denial of ADR benefits to a police officer is the result of a tie vote by the Board of Trustees, this Court is required to uphold the denial unless “it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident” … . Thus, the issue before us is whether, reviewing the record, it can be said, as a matter of law, that petitioner’s disability was the natural and proximate result of a service-related accident.

In the context of ADR benefits, the Court of Appeals has defined an accident as a ” sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'” while ” an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury'” … . It is petitioner’s burden to establish that his injuries resulted from an accident as defined in the context of ADR … .

Normal risks in most jobs are not unexpected * * *.

While it is true that petitioner was a police officer, not a firefighter, it cannot be said as a matter of law that his ordinary employment duties did not include responding to a fire emergency. As the Board of Trustees had before it some credible evidence of lack of causation, it did not err as a matter of law in concluding that petitioner’s disability was not the result of an accident within the meaning of Administrative Code § 13-252 … . Finally, contrary to the dissent, we do not regard the charging of fire hoses at the scene of a fire as a sudden, fortuitous, or unexpected event. Matter of Pastalove v Kelly, 2014 NY Slip Op 05922, 1st Dept 8-21-14

 

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Question of Fact Whether Hospital Vicariously Liable for Actions of Non-Employees

The Third Department determined there was a question of fact whether defendant hospital could be held vicariously liable for the actions of nonemployee doctors with respect to plaintiff’s decedent who was initially treated in the emergency room.  The court explained the applicable law:

Under settled law, a hospital ordinarily may not be held liable for the negligent acts of treating physicians who are not hospital employees … . Vicarious liability for malpractice on the part of nonemployee physicians may be imposed, however, on a theory of ostensible or apparent agency … . “‘Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority’ to act on behalf of the principal” … . Consequently, “a hospital may [face vicarious liability] for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician” … . Friedland v Vassar Bros Med Ctr, 2014 NY Slip Op 05388, 3rd Dept 7-17-14

 

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Arbitration Award Based Upon Collective Bargaining Agreement Does Not Have a Preclusive Effect Upon a Subsequent Employment Discrimination Action Based on the Same Facts

The Second Department noted that an arbitration award based upon the terms of a collective bargaining agreement does not bar a subsequent employment discrimination action under the doctrine of collateral estoppel.  Here the employee was terminated based upon excessive absences.  He subsequently  brought a discrimination action alleging the employee failed to accommodate his disability.  (The Second Department determined the “disability” alleged by the employee did not require accommodation):

An arbitrator’s award may be given preclusive effect in a subsequent judicial proceeding … . However, arbitration is an inappropriate forum for the disposition of an employment discrimination claim where “the arbitrator’s sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination . . . The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature” … . Thus, the arbitrator’s decision did not have preclusive effect on the plaintiff’s separate action based on unlawful discrimination in employment …, and the complaint is not barred by the doctrine of collateral estoppel. Caban v New York Methodist Hosp, 2014 NY Slip Op 05292, 2nd Dept 7-16-14

 

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