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“Hostile Work Environment” (Allegedly Offensive Sex-Related Remarks) and “Retaliation for Opposition to Discriminatory Practices” Causes of Action Explained

The Second Department determined defendant-employer was entitled to summary judgment on plaintiff-employee’s “hostile work environment” cause of action (allegedly offensive sex-related remarks) but was not entitled to summary judgment on plaintiff-employee’s “retaliation for opposing discriminatory conduct” cause of action. Defendant was able to demonstrate the allegedly offensive remarks were isolated incidents which did not permeate the work environment.  But a question of fact was raised about the “retaliation” cause of action. Plaintiff was terminated one day after the employer received a letter about the alleged discrimination from plaintiff’s attorney.  The Second Department explained the elements of “hostile work environment” and “retaliation for opposing discriminatory conduct” causes of action:

A hostile work environment exists where the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” … . Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a “mere offensive utterance,” and whether the alleged actions “unreasonably interfere[ ] with an employee’s work” are to be considered in determining whether a hostile work environment exists … . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an “objectively hostile or abusive environment—one that a reasonable person would find to be so” … . * * *

Under the New York State Human Rights Law, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[7]…). In order to make out a cause of action for retaliation, “[a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … . “To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . La Marca-Pagano v Dr. Steven Phillips, P.C., 2015 NY Slip Op 05162, 2nd Dept 6-17-15

 

 

Acceptance of Unsolicited Rent After Expiration of a Lease and After the Requisite Nonrenewal Notice Does not Waive the Intention Not to Renew or Vitiate the Notice

The Second Department, in a full-fledged opinion by Justice Cohen, determined the acceptance of unsolicited rent payments after the lease for a rent-stabilized apartment had expired, and after the tenant had received the requisite nonrenewal notice, did not constitute a waiver of the intention not to renew:

… [W]e are asked to determine whether a landlord’s acceptance of unsolicited rent in the “window period” between the expiration date of a lease and the commencement of a holdover proceeding nullifies a landlord’s previous service of a notice of intention not to renew the lease. We conclude that the acceptance of unsolicited rent in these circumstances does not, by itself, demonstrate an intentional waiver of a previously served notice of intention not to renew the lease and, thus, does not vitiate that notice. Matter of Georgetown Unsold Shares, LLC v Ledet, 2015 NY Slip Op 05185, 2nd Dept 6-17-15

 

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Negligence and Proximate Cause Inextricably Interwoven—Verdict Finding that Defendant Was Negligent but Such Negligence Was Not the Proximate Cause of Plaintiff’s Injury Properly Set Aside as Against the Weight of the Evidence

The plaintiff-student was sexually assaulted at school.  The jury found the school was negligent in its supervision of its students, but that the negligence was not the proximate cause of plaintiff’s injury.  The Second Department determined the verdict was properly set aside as against the weight of the evidence.  The issues of negligence and proximate cause were inextricably interwoven, such that finding the negligence was not the proximate cause of injury was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'” … .

Under the circumstances of this case, the issues of negligence and proximate cause were inextricably interwoven, such that the jury’s finding that the defendants were negligent, but that their negligence was not a substantial factor in causing the infant plaintiff’s injuries, was contrary to the weight of the evidence … . Victoria H. v Board of Educ. of City of N.Y., 2015 NY Slip Op 05156, 2nd Dept 6-17-15

 

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Petitioner’s Position Properly Abolished by Enactment of Town Budget

The Second Department determined that the town did not act in bad faith when it abolished petitioner’s position through the enactment of the town budget. The court explained the applicable law:

A public employer may abolish civil service positions to “promote efficiency and economy,” provided that the employer acts in good faith … . Where a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law … . “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee” … . “[W]hen there exists a triable issue of fact with regard to bad faith, a full hearing must be held” … .

Here, contrary to the petitioner’s contention, adoption of a municipal budget may properly serve, under certain circumstances, to abolish an employee’s position … . Matter of Grant v Town of Lewisboro, 2015 NY Slip Op 05187, 2nd Dept 6-17-14

 

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Child’s Out-of-Court Statements Not Sufficiently Corroborated for Admission Into Evidence

The Second Department determined Family Court properly refused to admit evidence of the child’s out-of-court statements in an abuse and neglect proceeding because the statements were not corroborated:

A child’s prior out-of-court statements may provide the basis for a finding of abuse or neglect, provided that these hearsay statements are corroborated so as to ensure their reliability … . Any other evidence tending to support the reliability of the child’s previous statements shall be sufficient corroboration (see Family Ct Act § 1046[a][vi]…). There is a threshold of reliability that the evidence must meet … . The Family Court has considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated … . Here, the Family Court did not improvidently exercise its discretion in determining that the statements of the subject child Anthony W. were insufficient to corroborate the statements of the subject child Sally W. as to the alleged sexual abuse perpetrated upon her. Matter of Gerald W. (Anne R.), 2015 NY Slip Op 05198, 2nd Dept 6-17-15

 

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Signed Consent Form Precluded Cause of Action for Assault and Battery (Re: a Hysterectomy)—Defendant Demonstrated the Allegation Plaintiff Did Not Consent to the Hysterectomy Was “Not a Fact At All”–Question of Fact Raised Re: the “Lack of Informed Consent” Cause of Action

The Second Department, over a partial concurrence/dissent, determined defendant was entitled to dismissal of the assault and battery cause of action, which was based on the allegation a hysterectomy was performed without plaintiff’s consent.  The evidence however demonstrated plaintiff signed a consent form, and thereby demonstrated that the “without consent” factual allegation was “not a fact at all.”  Plaintiff did, however raise a question of fact concerning the “lack of informed consent” cause of action. The court explained the elements of assault and battery in this context, the elements of a “lack of informed consent” cause of action, as well as how to handle a motion to dismiss for failure to state a cause of action which is accompanied by evidentiary submissions:

“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one . . . [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact'” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . Here, the evidence in the record upon which the Supreme Court relied established that “a material fact as claimed by the plaintiff” was “not a fact at all” … . Notwithstanding the plaintiff’s allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper … .

“To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff’s position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3])…). Here the plaintiff’s deposition testimony indicates that she was not fully advised of the risks, benefits, and alternatives to the procedure or treatment, including the fact that one of the risks was a total hysterectomy and/or perforation of the bowel, nor was it established as a matter of law that if the plaintiff received full disclosure, she still would have consented to the procedure. Since the defendants’ submissions included the plaintiff’s deposition testimony, they failed to establish, prima facie, that there were no triable issues of fact with respect to the cause of action alleging lack of informed consent … . Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging lack of informed consent. Thaw v North Shore Univ. Hosp., 2015 NY Slip Op 05173, 2nd Dept 6-17-15

 

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Motion to Compel Plaintiff to Submit to a Psychological Test Should Have Been Granted—Plaintiff Placed Her Mental Condition In Issue and Did Not Demonstrate the Test Was Invasive or Harmful

Reversing Supreme Court, the Second Department determined the defendants’ motion to compel plaintiff to submit to the administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) should have been granted.  Plaintiff amended the bill of particulars to allege she suffered from post-traumatic stress disorder (stemming from the underlying car accident). Plaintiff placed her mental condition in issue, and there was no showing the MMPI-2 would be invasive or harmful:

Where the mental or physical condition of a party is in controversy, the party may be required to submit to a medical examination … . However, a plaintiff who places his or her physical or mental condition in controversy will not be required to undergo an examination or objective testing procedure which is invasive, painful, or presents the possibility of danger to life or health … .

Here, it is undisputed that the plaintiff’s mental condition was put into controversy by her service of the bill of particulars denominated a second supplemental bill of particulars, in which she alleged that she has post-traumatic stress disorder that was caused by the accident. In support of their motion, the defendants established, through the affidavit of a psychologist, that the MMPI-2 is a conventionally accepted noninvasive test utilized for the assessment of a diagnosis of post-traumatic stress disorder.

In opposition, the plaintiff failed to establish that subjecting herself to the MMPI-2 would be invasive or harmful to her health … . Peculic v Sawicki, 2015 NY Slip Op 05168, 2nd Dept 6-17-15

 

Question of Fact About Sequence of Rear-End Collisions Precluded Summary Judgment

The Second Department determined a question of fact had been raised about whether the middle driver in a three-car rear-end collision was negligent. Although the middle-car driver alleged she was struck from behind and pushed into the lead car, the third-car driver alleged the middle car struck the lead car before he struck the middle car:

Supreme Court erred in granting the motions of the plaintiff [lead car driver] and [the middle-car driver] for summary judgment. Based on the plaintiff’s account of the accident, those movants established, prima facie, their freedom from comparative fault and that [third-car driver] was negligent based on the presumption of negligence that arises from a rear-end collision with a stopped or stopping vehicle … . However, [third-car driver’s] affidavit, which recited that his vehicle only struck the [middle] vehicle after the [middle] vehicle had already collided with the lead vehicle, raised triable issues of fact as to the sequence of the collisions, whether [the middle-car driver] was at fault, and the proximate cause of the plaintiff’s alleged injuries …. . Gavrilova v Stark, 2015 NY Slip Op 05153, 2nd Dept 6-17-15

 

Defendant-Homeowner’s Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant’s Liability for the Ladder’s Slipping and Plaintiff’s Fall—Cause of Accident Can Be Proven by Circumstantial Evidence

The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant’s ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff’s injury. In response to defendant’s argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):

“[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” … . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident …, the absence of rubber shoes on a ladder is a “visible and apparent defect,” evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice … . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with Billis’s testimony that the ladder had not been used between the time of the accident and the plaintiff’s inspection, raised a triable issue of fact.

Contrary to the defendants’ contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence … . Here, Billis’s testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder’s rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage … . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15

 

Liability for a Defective or Dangerous Condition on Real Property Must Be Predicated Upon Ownership, Occupancy, Control, or Special Use of the Property—Here Defendant Demonstrated None of Those Factors Applied

The Second Department, finding that defendant’s motion for summary judgment in a slip and fall case was properly granted, noted that in order for a defendant to be liable for a dangerous or defective condition on real property the liability must be predicated “upon ownership, occupancy, control, or special use of that property …”.  Here no such factors were demonstrated (defendant denied the allegation that it acted as the property manager).  Reynolds v Avon Grove Props., 2015 NY Slip Op 05169, 2nd Dept 6-17-15

 

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