EMPLOYMENT LAW/HUMAN RIGHTS LAW

 

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

 

 

EMPLOYMENT LAW/HUMAN RIGHTS LAW

 

Question of Fact Whether Plaintiff-Employee Indicated Employer's Sexual Advances Were "Unwelcome"--Dismissal of Employment Discrimination Complaint Reversed

 

The Second Department reversed Supreme Court, finding that there were questions of fact whether plaintiff-employee indicated by her conduct that defendant's (Cohen's) sexual advances toward plaintiff were "unwelcome" and whether plaintiff's termination was for a non-discriminatory reason.  Supreme Court erred when it focused on whether plaintiff participated in sexual activity "voluntarily:"

 

The New York State Human Rights Law (Executive Law § 296, et seq.) and the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) both make it an unlawful discriminatory practice for an employer to refuse to hire, to discharge, or to discriminate in compensation or in terms, conditions, or privileges of employment because of the sex of any individual (Executive Law § 296[1][a]; Administrative Code of the City of New York § 8-107[1][a]). Moreover, under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[1][e], [7]; Administrative Code of the City of New York § 8-107[7]).

 

To establish its prima facie entitlement to judgment as a matter of law in a retaliation case commenced pursuant to either the New York State or New York City Human Rights Law, "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" ... . To prevail on a motion for summary judgment dismissing a cause of action alleging discrimination in violation of the New York State Human Rights Law, a defendant must demonstrate "either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [the] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual" ... . With respect to a cause of action alleging discrimination in violation of the New York City Human Rights Law, where a defendant moves for summary judgment and has " put forward evidence of one or more nondiscriminatory motivations for its actions,' a court should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences' in the plaintiff's favor, no jury could find the defendants liable under any evidentiary route" ... . * * *

 

... [T]he evidence submitted by the defendants, which included a transcript of the plaintiff's deposition testimony, failed to eliminate all triable issues as to whether Cohen used his position to intimidate her into the relationship and as to whether the sexual conduct on his part was, in fact, "unwelcome." In this regard, the plaintiff, at her deposition, consistently testified that the sexual relations were not welcome, that she felt as though she had no other choice but to participate, and that when she complained to Cohen, he made it very clear that there would be repercussions if she did not participate. In considering this testimony, we recognize that the question of whether particular conduct was "unwelcome" presents "difficult problems of proof and turns largely on credibility determinations committed to the trier of fact" ... . The Supreme Court appears to have focused on the voluntariness of the plaintiff's participation in the claimed sexual episodes. However, "the fact that sex-related conduct was voluntary,' in the sense that the [plaintiff] was not forced to participate against her will, is not a defense," and the "correct inquiry is whether [the plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome" ... . Overbeck v Alpha Animal Health PC, 2015 NY Slip Op 00736, 2nd Dept 1-28-15

 

 

FAMILY LAW

 

Access to Financial Support from Family Properly Considered In Calculating Father's Child Support and Child Care Obligations

 

The Second Department explained that Family Court properly imputed income to the father based upon access to financial support from his family:

 

Pursuant to Family Court Act § 413(1)(b)(5)(iv), the Family Court is entitled to impute income to a parent based upon various factors, including "money, goods, or services provided by relatives and friends" (Family Ct Act § 413[1][b][5][iv][D]). Here, the Family Court properly determined that the father has access to, and receives, financial support from his family. Considering, among other things, the father's employment history, his monthly expenses, and the resources provided to him by his own father over a number of years, the Family Court providently exercised its discretion in imputing income to the father in the sum of $30,000 per year for the purpose of calculating his child support and child care obligations ... . Matter of Recco v Turbak, 2015 NY Slip Op 00770, 2nd Dept 1-28-15

 

 

FAMILY LAW

 

Claimed Gestation Period of 303 Days Requires Reliable Medical Evidence It Is Scientifically Possible/Acknowledgment of Paternity by Another Did Not Preclude Petitioner from Bringing His Paternity Action

 

The Second Department determined that petitioner must produce reliable medical evidence that a 303-day gestation period (the time between sexual intercourse and birth) is scientifically possible before proceeding with a paternity action.  The court noted that an acknowledgment of paternity by another did not preclude petitioner from bringing his paternity action:

 

Appellate courts have held that the generally accepted period of gestation is between 38 and 40 weeks... . However, pregnancy periods can exceed that timeframe ... . Indeed, in 1992, the Appellate Division, Third Department, held that a period of gestation measured from the last menstrual period prior to the child's birth can be between 265 and 299 days ... . In the beginning of the last century, this Court, citing Code Napoleon, found that the period between sexual intercourse and birth could be up to 300 days ... . Here, the petitioner alleges that 303 days, or 43 weeks and 2 days, elapsed between the last date of sexual intercourse with the mother and the birth of the child.

 

Any material deviation from the generally accepted average period of gestation must be explained with a reliable medical opinion ... . Although no such evidence was presented at the hearing, under the circumstances of this case, a new hearing should be conducted to afford the petitioner an opportunity to present such evidence. Since the petitioner has the burden of proof, he must present reliable medical evidence to demonstrate that the 303-day gestational period alleged here is scientifically possible

 

A prior acknowledgment of paternity made in accordance with Family Court Act § 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment ... . * * * Therefore, upon remittal, if the petitioner satisfies his burden of demonstrating at the hearing, with reliable medical evidence, that a 303-day gestational period is scientifically possible, then the Family Court must determine whether to direct a DNA or genetic marker test in the child's best interest.

 

 

FREEDOM OF INFORMATION LAW (FOIL)

 

District Attorney's Office Did Not Adequately Justify Its Denial of Inmate's Requests for Color Photographs and Unredacted Documents Re: 18-Year-Old Murder Prosecution

 

The Second Department determined that the Records Access Officer (RAO) of a district attorney's office did not adequately justify its failure to comply with petitioner requests for color photographs and unredacted documents related to an 18-year-old murder prosecution against him.  The Second Department explained the relevant law in some depth:

 

In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]... . This showing requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" ... . "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" ... . Because FOIL is "based on a presumption of access to the records" ..., "FOIL compels disclosure, not concealment'" wherever the agency fails to demonstrate that a statutory exemption applies ... .

 

In this case, in response to the petitioner's FOIL requests, the respondent provided the petitioner with certain documents that contained numerous redactions, and denied the petitioner's request for photographs of the deceased victim. The respondent based the redactions and the denial of the request for the photographs upon the "unwarranted invasion of personal privacy" statutory exemption (Public Officers Law § 87[2][b]). However, since the respondent failed to proffer more than conclusory assertions to support these claims, the Supreme Court erred in determining that the respondent met his burden of demonstrating that the redactions and denial of the request for the photographs of the deceased victim fell within this statutory exemption (see Public Officers Law § 89[5][e], [f];...).

 

The Supreme Court also erred in determining that the petitioner was not entitled to receive color copies of certain photographs that were disclosed to him. Public Officers Law § 86(4) provides that photographs are records within the meaning of the statute, and section 87(1)(b) of the statute requires an agency to provide copies or reproductions of records. Pursuant to Public Officer Law § 87(1)(c)(ii), an agency may engage an outside professional service to prepare a copy of a record if its information technology equipment is inadequate to prepare a copy. Applying these principles, we find that since the respondent did not claim he was unable to comply with the petitioner's request, FOIL requires him to provide the petitioner with color copies of all disclosable photographs in his possession. Matter of Baez v Brown, 2015 NY Slip Op 00754, 2nd Dept 1-28-15

 

 

INSURANCE LAW/CONTRACT LAW

 

Where Extrinsic Evidence Indicates a Party's Interpretation of Ambiguous Language Is the Only Fair Interpretation, Summary Judgment Is Appropriate

 

In finding that the meaning of a title insurance policy was properly determined as a matter of law, the Second Department explained the complicated analytical criteria:

 

Generally, courts determine the rights and obligations of parties under insurance contracts based on the specific language of the policies ... . However, where the language is reasonably susceptible of more than one interpretation, and thus ambiguous, "the parties to the policy may, as an aid in construction, submit extrinsic evidence of their intent at the time of contracting" ... . "[I]f the tendered extrinsic evidence is itself conclusory and will not resolve the equivocality of the language of the contract, the issue remains a question of law for the court" ... . "Under those circumstances, the ambiguity must be resolved against the insurer which drafted the contract" ... .

 

"It is only where such evidence does not resolve the equivocality that the ambiguity must be resolved against the insurer" ... . Where there is ambiguity and the "determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury" ... . Where, however, a party's extrinsic evidence demonstrates "not only that its interpretation is reasonable but that it is the only fair interpretation," summary judgment is appropriate ... . Demetrio v Stewart Tit Ins Co, 2015 NY Slip Op 00720, 2nd Dept 1-28-15

 

 

INSURANCE LAW/CIVIL PROCEDURE

 

Criteria for Denial of Coverage Based Upon Noncooperation of the Insured Party Explained/Default Judgment In Favor of Defendant American States Re: Other Defendants Did Not Preclude, Under the Doctrine of Collateral Estoppel, Plaintiff's Direct Action Against American States

 

The Second Department determined a question of fact existed about whether the "noncooperation-of-an-insured-party" rationale for denying coverage applied.  The court noted that a prior default judgment in favor of defendant American States re: other defendants did not preclude, under the doctrine of collateral estoppel, plaintiff's direct action against American States:

 

American States prevailed in that declaratory judgment action against the defendants in the underlying action which determined that American States is not obligated to defend and indemnify the defendants in the underlying action. However, those orders were entered upon the underlying defendants' default, and thus, did not collaterally estop the plaintiff from bringing the instant, direct action against American States pursuant to Insurance Law § 3420(a)(2) ... . ...

 

The noncooperation of an insured party in the defense of an action is a ground upon which an insurer may deny coverage, and may be asserted by the insurer as a defense in an action on a judgment by an injured party pursuant to Insurance Law § 3420(a)(2) ... . In order to establish a proper disclaimer based on its insured's alleged noncooperation, an insurer is required to demonstrate that "it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of wilful [sic] and avowed obstruction'" ... . The insurer has a "heavy" burden of proving lack of cooperation ... . Here, the submissions of the American States defendants were insufficient to sustain their prima facie burden on the cross motion for summary judgment, with respect to American States. West St Props LLC v American States Ins Co, 2015 NY Slip Op 00751, 2nd Dept 1-28-15

 

 

LABOR LAW-CONSTRUCTION LAW

 

Question of Fact Whether Failure to Wear a Harness Precluded Recovery in a Labor Law 240 (1) Action

 

The Second Department determined defendant had raised a question of fact whether plaintiff's actions were the sole proximate cause of the accident (which would preclude recovery in a Labor Law 240 (1) action).  Plaintiff was injured when plywood flooring collapsed. However the defendant presented evidence plaintiff was aware he was required to wear a harness which would have prevented him from falling to the floor below:

 

" Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'" ... . To prevail on a cause of action pursuant to Labor Law § 240(1), the plaintiff must establish a violation of the statute and that the violation was a proximate cause of his injuries ... . Although contributory negligence on the part of the worker is not a defense to a Labor Law § 240(1) claim ..., where a plaintiff's actions are the sole proximate cause of his injuries, liability under Labor Law § 240(1) does not attach ... .

 

Here, although the plaintiff met his prima facie burden of establishing a violation of Labor Law § 240(1) ... the defendants produced evidence that a safety harness and line were available to the plaintiff, that he was aware that he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that the plaintiff had consciously decided not to anchor his line on the 15th floor as instructed. The defendant's submissions were sufficient to raise a triable issue of fact as to whether the plaintiff's actions were the sole proximate cause of his accident ... . Bascombe v West 44th St Hotel LLC, 2015 NY Slip Op 00712, 2nd Dept 1-28-15

 

 

LABOR LAW-CONSTRUCTION LAW

 

 

"General Supervisory Authority" Over Work Not Sufficient to Impose Liability Under the Labor Law

 

In affirming summary judgment in favor of the defendants, the Second Department described the nature of work-supervision necessary to hold a defendant liable under Labor Law 240 (1), 241 (6), 200 and common-law negligence theories.  "General supervisory authority" is not enough to impose liability:

 

"Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents" ... . "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" ... . "Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work" ... . * * *

 

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that they were not owners, contractors, or statutory agents under those provisions ... . The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence through the submission of evidence which demonstrated that they did not have the authority to supervise or control the manner in which the injured plaintiff performed his work ... . 

 

To the extent that the defendants had general supervisory authority over the work, this was insufficient in itself to impose liability under the Labor Law ... . Fucci v Plotke, 2015 NY Slip Op 00726, 2nd Dept 1-28-15

 

 

LABOR LAW-CONSTRUCTION LAW

 

Construction Manager Did Not Have the Contractual Authority to Control the Manner In Which Work Was Done and In Fact Did Not Control the Manner In Which Work Was Done---Labor Law 240 (1) and 200 Causes of Action Properly Dismissed

 

The Third Department determined Supreme Court properly dismissed Labor Law 240 (1) and 200 causes of action against the construction manager because the construction manager (Sano-Rubin) did not possess the contractual authority to control, and in fact did not control, the manner in which the work was done.  The court explained the analytical criteria:

 

At the time of plaintiff's injury, Sano-Rubin was serving as the construction manager for various construction projects occurring throughout the school district pursuant to a contract it had entered into with the school district. Plaintiff initially contends that there are factual issues as to whether Sano-Rubin's role renders it a statutory defendant under Labor Law § 240 (1), which "imposes liability only on contractors, owners or their agents" ... . Under this provision, a party that is operating as a construction manager is not deemed a statutory agent unless that party has "the authority to direct, supervise or control the work which brought about the injury" ... . "The key criterion in ascertaining Labor Law § 240 (1) liability is not whether the party charged with the violation actually exercised control over the work, but rather whether [that party] had the right to do so" ... . Similarly, under Labor Law § 200, which codifies the common-law duty of care as between owners, general contractors and their agents, the imposition of liability requires a showing that the defendant possessed the authority to direct or control the activity resulting in injury ... . 

 

Sano-Rubin's contract with the school district provided that Sano-Rubin "shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the [w]ork of each of the [c]ontractors" and further, that if Sano-Rubin "observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the [o]wner." This contract was submitted upon the cross motion, together with proof of the implementation of these contractual limitations on Sano-Rubin's authority ... , These submissions were sufficient to establish its prima facie right to judgment as a matter of law... . Larkin v Sano-Rubin Constr Co Inc, 2015 NY Slip Op 00672, 3rd Dept 1-29-15