Opinion
Index No. 907624-23
01-25-2024
J.S.M., Plaintiff, v. City of Albany Department of General Services, Defendant.
C.A. Goldberg, PLLC Attorneys for Plaintiff By: Ann S. Seifullah, Esq. Marisa Franchini, Esq. Corporation Counsel, City of Albany Attorneys for Defendant By: Robert Magee, Deputy Corporation Counsel
C.A. Goldberg, PLLC Attorneys for Plaintiff
By: Ann S. Seifullah, Esq.
Marisa Franchini, Esq. Corporation Counsel, City of Albany Attorneys for Defendant
By: Robert Magee, Deputy Corporation Counsel
DAVID A. WEINSTEIN ACTING SUPREME COURT JUSTICE
By Verified Complaint filed August 10, 2023, plaintiff J.S.M. pleads causes of action for hostile work environment/sexual harassment under New York Human Rights Law ("HRL") § 290 et seq., and for negligent supervision, retention & training against defendant Albany Department of General Services (the "Department" or "DGS"). These claims arise out of M.'s employment with DGS between 1998 and 2012. The matter is now before me on defendant's pre-answer motion to dismiss the complaint as untimely and for failure to state a claim, or in the alternative to strike certain portions thereof. Plaintiff, for her part, argues that her complaint was timely filed under the Adult Survivors Act ("ASA"), codified in CPLR 214-j.
Plaintiff's complaint alleges that she was "constantly passed over for opportunities, harassed, assaulted, and abused because of her gender," and when she complained "she suffered severe retaliation; an intensely hostile environment caused by male supervisors and some of her co-workers; and additional abuses directed at her on the basis of her gender" (Complaint ¶ 4). The key allegations in the pleading are as follows:
M. began her employment with DGS in 1998, and in 2000 was assigned to a sanitation garage, at which she was the only woman (id. ¶¶ 11-16). In the middle of the year, one of her managers grabbed her by her jacket and threw her against the wall while she was waiting to clock out (id. ¶ 16). Although her union representative tried to get her to file a complaint with the police, she "felt unsafe" doing so (id. ¶¶ 20-22). M. asserts that no one at the Department investigated, it failed to provide her with "support or protection," and the manager was not disciplined for his conduct as a result (id. ¶ 23).
M. was transferred to the Capitol Hills Golf Course in 2004, and she characterizes the four-year period that followed as one in which she was subjected to a hostile work environment, in that (1) the foreman "made it clear that he did not like [J.]'s presence because she was the female employee at the golf course" (id. ¶ 26); (2) the all-male crew "expressed outward disdain for [her] presence," complaining that they could not watch or keep pornography because of her (id. ¶ 27); (3) she was routinely called sexist slurs (id. ¶ 28); (4) she witnessed pornographic images on the foreman's computer (id. ¶ 29); (5) the foreman "expressed annoyance" that the employees' beer drinking had to stop "at the arrival of a 'lady'" (id. ¶ 30); and (6) one employee ("Mark") spoke "loudly and aggressively" with M. present on sexual topics, including how he had forced a woman to give him oral sex, and her complaints about such were ignored (id. ¶¶ 31-32). She also describes a circumstance in which she reported Mark to the Commissioner for fraudulently claiming overtime, after which she was denied a transfer, was yelled at by the foreman, and faced more hostility (id. ¶¶ 33-37). According to the complaint, M. also sought light duty because of pain she was suffering, and it was denied her but approved for one of her male co-workers who "upon information and belief" had less serious injuries (id. ¶ 39).
At or about the end of 2008 and beginning of 2009, M. was transferred to the DGS garage, where she alleges that she "became the target of sexual harassment by the Foreman... Dave Sherry" (id. ¶ 41). Specifically, she states that Sherry would wait for her in the women's restroom and refuse her requests that he leave (id. ¶¶ 42-43). Once, according to the complaint, he cornered her and kissed the back of her neck, until she yelled at him to stop (id. ¶ 44). She did not report this incident "for fear of retaliation" and because "[s]he had already learned that as a woman in DGS, her complaints would not be investigated" (id. ¶ 48). On another occasion, Sherry's presence in the women's bathroom was seen by M.'s co-workers and was investigated by the OGS Commissioner, but "[o]ut of reasonable and legitimate fear that retaliation would ensue" she declined to make a report of this incident, and Sherry was never disciplined (id. ¶ 52-53).
M. also alleges that starting in 2008 or 2009, another official, "Chief of the City" Tom Kelly harassed her by making "flirtatious comments" and engaging in conversations regarding his desire to pursue her sexually (id. ¶ 54). She states that in one instance in the winter of 2011, he pushed her against the wall, forcibly kissed her, and compelled her to give him oral sex (id. ¶¶ 56-60). She reported this to three DGS supervisors, but no one followed up (id. ¶ 62).
According to the complaint, after this incident Kelly called her constantly, and showed up at her workplace when she did not answer (id. ¶¶ 63-65). After she eventually refused to take his calls, she says that he made a "false report" against her for theft of time, i.e., clocking in for hours she had not worked (id. ¶ 70). She then recorded a conversation with Kelly, in which she asked him why he had "hurt" her and "tr[ied] to have [her] suspended," and he said: "I would never let that happen" (id. ¶ 73). She brought the tape to her supervisors, which led to Kelly being transferred to a job as a street sweeper, although he was not terminated (id. ¶¶ 75-76). Plaintiff states that she was then retaliated against by being given "more physically difficult job assignments," and "treated with outright disdain" by her co-workers, who "shunned and ignored her," called her names and made degrading statements about her (id. ¶ 78). Ultimately, she retired early (id. ¶ 80).
Defendant has now moved to dismiss the complaint under CPLR 3211(a)(2), (7) and (8) as untimely and failing to state a claim, or alternatively under CPLR 3024(b) to strike "all allegations of tortious conduct not in violation of Article 130 of the Penal Law," which governs sex offenses (see Affirmation in Support ["Aff Supp"] ¶ 2]).
This statute provides that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading"
At the core of defendant's motion - and of the legal dispute between the parties presented in the submissions now before me - is to whether and to what extent the causes of action asserted by plaintiff are timely under the Adult Survivors Act ("ASA"). That statute, set forth in CPLR 214-j, provides in relevant part as follows:
"Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older, or incest as defined in section 255.26 or 255.27 of the penal law committed against such person who was eighteen years of age or older, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section"
There is no dispute that unless this statute applies, the causes of action in the complaint are all time-barred under General Municipal Law §§ 50-e and 50-i, which provides that a notice of claim be serve within 90 days, and all actions against a municipality be brought within one year and ninety days (see McKie v LaGuardia Community College/CUNY, 85 A.D.3d 453, 454 [1st Dept 2011] [statute of limitations for employment discrimination claims against municipality is one year and ninety days]; see also Memorandum of Law in Support of Defendant's Motion to Dismiss ["Def Mem"] 3).
Plaintiff argues, however, that because at least one of the actions in the complaint - the alleged sexual assault by Kelly - is covered by the ASA, the sexual harassment claim is timely, and the other allegations can be considered by the Court to the hostile work environment on which this cause of action is based. In plaintiff's view, there is a direct causal connection between what her counsel characterizes as "a lack of oversight, attention, and safeguards implemented by management to account for and prevent sexual harassment in the workplace" reflected in the other allegations in the complaint, and the sexual assault allegation rendered timely by the ASA (see Plaintiff's Memorandum of Law ["Pl Mem"] 1).
For its part, DGS contends that, with the exception of the allegations of sexual assault against Kelly, the complaint - and both causes of action which are pled therein - are "not violations of Article 130 of the NY Penal Law" as covered by the ASA, and therefore must be dismissed as untimely (see Affirmation in Support ["Aff Supp"] ¶ 60). Further, it argues that (1) CPLR 214-j is unconstitutional as applied to defendant; (2) the complaint fails to plead a sufficient claim of hostile work environment because it contains no allegations that defendant knew or should have known of the alleged conduct covered by the ASA; (3) no facts are alleged regarding Kelly's tortious propensities, as necessary to support a negligent hiring claim; and (4) no claim is made against defendant under a theory of respondeat superior (see id.). In the alternative to dismissal, defendant asks that I dismiss all allegations not constituting sexual offenses in violation of Penal Law Article 130, leaving (in its view) only the allegation that Kelly had sexually assaulted plaintiff in the winter of 2011 (see id. ¶ 61).
Discussion
As defendant's motion to dismiss is brought under CPLR 3211, I must "accord the complaint a liberal construction, assume its factual allegations to be true, draw every possible favorable inference therefrom and determine only whether any cognizable cause of action has been alleged" (Esposito-Hilder v SFX Broadcasting, 236 A.D.2d 186, 187-188 [3d Dept 1997]). However, allegations "consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.'" Simkin v Blank, 19 N.Y.3d 46, 52 [2012] quoting Maas v Cornell Univ, 94 N.Y.2d 87, 91 [1999]). I consider defendant's arguments in light of this standard below.
I. The "As Applied" Constitutional Challenge
In the discussion that follows, I make frequent reference to caselaw under the Child Victims Act ("CVA"). The material language of that statute is the same as the ASA, reviving as against a timeliness defense "every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law," albeit only as to those who were under 18 at the time the offense occurred (CPLR 214-g). Therefore, that law is relevant and persuasive to the ASA issues before me.
The constitutionality of a statute that revives claims previously time-barred was addressed most recently by the Court of Appeals in World Trade Ctr Lower Manhattan Disaster Site Litigation (30 N.Y.3d 377 [2017]). That case stated that such statutes present no issue under the Due Process Clause of the federal constitution, except in circumstances not relevant here (id. at 394). Under the New York State Constitution, a claim revival statute is constitutional so long as it "was enacted as a reasonable response in order to remedy an injustice" (id. at 400; see also id. at 399-400 [statute constitutional if there was "an identifiable injustice that moved the legislature to act," and the revival must be "reasonable in light of that injustice"]).
The ASA clearly meets this standard. The Legislature enacted the statute to address what it deemed to be New York's previously "insufficient statutes of limitations" regarding sexual assaults, and the presence of other obstacles which faced victims of such in bringing suit, so that those who were unable previously to seek recompense for sexual offenses may "be given the opportunity to seek civil redress against their abuser[s]... in a court of law" (see Carroll v Trump, 650 F.Supp.3d 213, 222 [SD NY 2023] [discussing ASA's legislative history]). These grounds for the legislation easily meet the deferential "reasonable response" test, as has been found in regard to both the ASA and the CVA, which has the same essential purpose (see id. at 222-223 [upholding ASA against due process challenge]; Schearer v Fitzgerald, 217 A.D.3d 980, 982 [2d Dept 2023] [upholding CVA against due process challenge; statute "was a reasonable response to remedy the injustice to [child sexual assault survivors] caused by application of the relevant statute of limitations"], citing PB-36 Doe v Niagara Falls City Sch. Dist., 213 A.D.3d 82, 85 [4th Dept 2013]; Matarazzo v CHARLEE Family Care, Inc., 218 A.D.3d 941 [3d Dept 2013] [CVA's one-year revival statute based, inter alia, on the "unique character of sex crimes"; constitutionality upheld]).
Defendant, however, does not present a facial challenge to the constitutionality of the statute. Rather, it contends that the ASA is unconstitutional "as applied" to the circumstances of this case and specifically in regard "to employers such as the Defendant, which, as alleged in the Complaint, did not know and did not have reason to know of an employee's propensity to commit a sexual offense and who disciplined said employee upon learning of that employee's sexual offense and where no further acts of sexual aggression are alleged to have been committed by that employee" (id. at 15-16).
Framed this way, this is nothing more than a challenge to the sufficiency of complaint's allegations on their merits, which is addressed below. To the extent it raises a due process challenge to ASA based on its fairness to this particular defendant, courts have rejected such arguments when presented against a claim revival statute, on the ground that the Legislature may reasonably choose to impose an across-the-board rule reviving untimely claims as to all defendants, without regard to its fairness in individual circumstances (see Hymowitz v Eli Lilly & Co., 73 N.Y.2d 487, 515 [1989]). As the Court of Appeals put it, even if the circumstances of a particular claim might not implicate the reasons for a revival statute, "the Legislature properly determined that it would be more fair for all plaintiffs to uniformly now have one year to bring their actions, rather than for the courts to begin drawing arbitrary lines transecting this area's shades of gray" (id.). On this basis, courts have rejected such "as applied" challenges to the ASA and CVA (see Matarazzo, 218 A.D.3d at 944-945 [rejecting as applied challenge to the CVA, since the Legislature had "specifically considered" the problems facing defendants in litigating claims many years after the events at issue as they "relate[] to all parties," and had reasonably determined the revival statute to be necessary despite those issues]; Carroll, 650 F.Supp. at 223-224 [rejecting as applied challenge to ASA, citing Hymowitz ]; Monahan v Toback, 2023 WL 2895178, at *4 [Sup Ct, New York County April 11, 2023] [rejecting "as applied" constitutional challenge to ASA]). Indeed, if defendant's argument were correct, it would require the courts to adjudicate the fairness of the revival statute in every case, determining in each instance, under some undefined standard, whether to allow the claim to proceed. The governing case law does not require courts to adopt such a case-by-case analysis when the Legislature has not provided for such an approach. Thus, there is no basis to the Department's constitutional challenge
II. Application of the ASA to the Facts of this Case
As noted supra, defendant argues that the ASA has no application to the causes of action at issue here, and even if applicable, they argue that it shields only one allegation in the complaint from dismissal as untimely - M.'s allegation of a sexual assault against her by Kelly (see Def Mem 17).
The first of these arguments misreads the statute. The ASA applies to allegations of "intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense" (CPLR 214-j [emphasis added]). The focus is thus on the conduct which caused injury, not on the nature of the legal theory under which the cause of action was brought. Nothing in the statute requires that the cause of action include a sexual offense as a necessary element, so long as a sexual offense is the conduct that caused injury in this case. Thus, courts have allowed causes of action under the Human Rights Law to go forward under both the ASA and CVA (see Doe v New York City Board of Education, - F.Supp.3d -, 2023 WL 9227096, at *3 [ED NY Jan 12, 2024 ] ["the plain language of the CVA embraces these civil claims" brought under the Human Rights Law, as it "revives 'every civil claim or cause of action,' language that definitively encompasses the NYSHRL..."]; Segal v New York Military Academy, 2023 WL 5211229, at *6 [SD NY Aug 14, 2023] [denying motion to dismiss state law discrimination claims on ground that they are not covered by the CVA]; see also Wilkie v Village of Hempstead, 2023 WL 5952056 [ED NY June 20, 2023] [rejecting argument that "since the ASA only covers conduct that constitutes a sexual offense as defined in NY Penal L. § 130, false imprisonment and false arrest, which are not such offenses, cannot be asserted under the ASA"]). Indeed, the reference in the statute to "negligent" acts shows that the ambit of the ASA was intended to be broader than merely allowing suits for the sexual offenses themselves; rather, as stated in the Memorandum in Support, the law was intended to provide for redress against both an abuse and the "abuser's enablers" (Chapter 203 of the Laws of 2022, Senate Memorandum in Support). That clearly contemplates that the Act will apply to a broader set of causes of action than the assault itself, including negligent supervision and hostile work environment, provided the ultimate injury was the result of a sexual offense.
The opinion lists a December 2023 signing date; from the context, it is clear that date should be 2024.
Defendant's second argument - that if the ASA applies, only the alleged 2011 sexual assault falls under its rubric - is correct with one exception. There is a second act which, at this early point in the litigation and drawing all inferences in plaintiff's favor, may also be actionable under the ASA: the allegation that in 2010 foreman Sherry "pushed into [J.] with his body" and then "cornered [her] and kissed the back of her neck," at which point plaintiff yelled at him to stop (see Complaint ¶ 44). This is sufficient to allege a claim of forcible touching under Penal Law § 130.52, which would be covered by the ASA. Section 130.52 renders guilty a person who "intentionally, and for no legitimate purpose[ ] forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire." Although a strict reading of the statute might not seem to apply to the conduct at issue, New York law sets a "low threshold for the forcible component" such that "any bodily contact involving the application of some level of pressure qualifies" if done with the "relevant mens rea" (see People v Guaman 22 N.Y.3d 678, 684 [2014]), and New York Courts have found that an individual's neck and feet may constitute intimate parts under section 130.52 (see Morrison v Scotia Capital (USA) Inc., 2023 WL 8307930, at *3 [SD NY Dec 1, 2023] [collecting cases; finding that allegations that co-worker caressed plaintiff's foot and hugged her from behind were sufficient to allege forcible touching at the pleading stage, so that the claim fell under the ASA]; see also People v Sene, 66 A.D.3d 427, 427 [1st Dept 1999] [upholding conviction under § 130.52 "premised on nonconsensual contact between defendant's mouth and the victim's neck"]).
Plaintiff does not argue that any of the other acts alleged fall under the section 130 of the Penal Law. Rather, she contends that the other events set forth in the complaint "illustrate the extent to which Plaintiff endured an abusive environment before, during, and after the 2011 sex assault" (see Plaintiff's Memorandum of Law 13-14). I will address these arguments below after considering the other challenges to the claim presented by defendant.
Indeed, plaintiff does not argue specifically that Sherry's conduct constituted a sexual offense under the Penal Law, but that is not surprising, given that her overall argument is that so long as one of the allegations of harassment constituted a sexual assault, all of the others are timely under the ASA as well.
III. Employer's Knowledge
To prove a sexual harassment claim based on hostile work environment, an employee must show her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment" (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310 [2004] [internal quotation marks, citations and brackets omitted]). In some circumstances "a few extraordinarily severe instances of sexual harassment can establish a hostile and abusive work environment" (Pawson v Ross, 137 A.D.3d 1536, 1539 [3d Dept 2106]) - and even a single incident of sexual assault may meet this standard, if it is "extraordinarily severe" (see San Juan v Leach, 278 A.D.2d 299, 300 [1st Dept 2000] [citation omitted]). Moreover, a claim of "hostile work environment" does not require any demonstration of a link between the conduct and any adverse employment decision (see Father Belle Community Center v New York State Div. Of Human Rights, 221 A.D.2d 44, 50-51 [4th Dept 1996], lv denied 89 N.Y.2d 809 [1997]).
Plaintiff's allegations of two incidents of forcible sexual contact - one quite severe - would appear sufficient to survive a motion to dismiss for failure to state a claim. DGS argues, however, that no viable cause of action has been pled here, in the absence of any allegation that the incidents at issue were "reported to senior management" or otherwise brought to the attention of defendant, and because it does not "include any facts whereby it could be concluded that the Defendant should have been aware" of such (Def Mem 9-11). Moreover, there is no allegation that "the employees alleged to have engaged in the misconduct were upper-level supervisors" (id. at 11-12).
For these arguments, defendant relies on the Third Department's decision in Reynolds v State of New York (180 A.D.3d 1116 [3d Dept 2020]), and in particular the following language: "If 'the [plaintiff] is harassed by a low-level supervisor or a coemployee, the [plaintiff] is required to establish only that the upper-level supervisors had knowledge of the conduct and ignored it; if so, the harassment will be imputed to the corporate employer and will result in [the] imposition of direct liability'" (id. at 1118, quoting (Vitale v Rosina Food Prods., 283 A.D.2d 141, 143 [4th Dept 2001]). Defendant argues that nothing in the complaint indicates that foreman Sherry, alleged to have "cornered" and kissed plaintiff in the bathroom, was more than a low level supervisor (Def Mem 11). As to Kelly, alleged to have sexually assaulted M. in 2011, DGS states that while he is identified as "chief of the city," there is no such title at DGS (id. at 12; Aff in Supp ¶ 31).. Moreover, it argues that given the allegations in the complaint that Kelly was disciplined by being made a street sweeper and "lacked the authority to punish the plaintiff for time theft" himself, it "cannot be concluded... that [he] was the kind of upper-level supervisor whose awareness of or contribution to a hostile work environment may be imputed to the Defendant" (Def Mem 12, citing Aff in Supp § 31). Finally, defendant maintains that these incidents are not alleged to have been brought to the attention of any senior officials (id. at 11-12).
The language Reynolds cites from Vitale comes from the Fourth Department's decision in the Father Belle Community Center case, which explained at length the threshold for holding an employer liable for sexual harassment by an employee. Prior to that decision, the Court of Appeals had held that an "employer cannot be found to have violated the [Human Rights] statute solely because of an employee's discriminatory act; in order to hold the employer responsible the agency must demonstrate that the employer approved of, or acquiesced in, the employee's conduct" (see Totem Taxi, Inc. v New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 304 [1985]). Thus, the Fourth Department noted that under State law "there [must] be some basis for imputing the employee's conduct to the employer; neither imposes liability on the employer based solely on the employment relationship" (221 A.D.2d at 51). The complainant must demonstrate that the employer acquiesced in the discriminatory conduct or subsequently condoned it (id. at 53). An employer may be deemed to have condoned an offense when there has been "knowing, after-the-fact forgiveness or acceptance of [the] offense," which may be reflected by "an employer's calculated inaction in response to discriminatory conduct" (id.). On the other hand, condonation "may be disproved by a showing that the employer reasonably investigated a complaint of discriminatory conduct and took corrective action" (id. at 53-54).
It distinguished this rule from that applicable in federal law, under which an employer will be liable when the harassser is a supervisor, if "the supervisor used his actual or apparent authority to engage in the harassment or... the supervisor otherwise was aided in creating a hostile work environment by the agency relationship" (221 A.D.2d at 52).
The Fourth Department considered how to apply these rules when the individual carrying out the harassment is also a supervisor. It found that the employer "may be held directly liable for acts of discrimination perpetrated by a high-level managerial employee" (id. at 54). In such an instance, there is no need for the employee to report the conduct, which may be imputed to the employer (id.). If, on the other hand, the harasser is a "low-level supervisor," then "the complainant is required to establish only that upper-level supervisors had knowledge of the conduct and ignored it" (id.).
The other Appellate Divisions have adopted the Fourth Department's view that conduct by a high-level supervisor may without more be sufficient to show the employer's condonation, while the actions of a low-level supervisor will not suffice without evidence of notice and acceptance (see Franco v Hyatt Corporation, 189 A.D.3d 569, 570 [1st Dept 2020] ["Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy"]; Ellis v Child Development Support Corp., 5 A.D.3d 430, 431-432 [2d Dept 2004] [granting defendant summary judgment on sexual harassment claim; alleged harasser "was not a high-level managerial employee whose conduct could be imputed to the appellant"]; Pascal v Amscan, Inc., 290 A.D.2d 426, 426 [2d Dept 2002] [summary judgment properly granted for defendant on sexual harassment claim; "the alleged perpetrator of the harassment was not of such a high rank in the company as to invoke the rule of imputed liability for his actions"]).
There is also caselaw that intimates a possible additional basis for liability: that a low-level supervisor was "acting within the scope of his employment when he engaged in the offensive conduct" (Jara v Initial Contract Services, Inc., 267 A.D.2d 106, 107 [1st Dept 1999]). It is difficult to imagine conduct that would both constitute sexual harassment and be within the scope of a supervisor's employment (see Wilkie, 2023 WL 5952056 , at *5 ["under New York law, an employee's sexual assault is considered outside the scope of an employee's duties and does not form the basis for vicarious liability"]). In any case, a sexual assault on a municipal employee would certainly not qualify as "within the scope" of the assailant's employment.
Applying the standards set forth in Reynolds and Father Belle to the two instances identified above as falling within the ASA, I find that they may not be dismissed at this early stage as insufficiently pled.
Defendant asserts that the claims fall short because the individuals at issue are not identified as high-level supervisors, and "[i]n no case does the Plaintiff allege that the misconduct continued after it was brought to the Defendant's attention" (Def Mem 9). The complaint identifies Sherry as the "Foreman of Fleet Management" and as a "Supervisor," and states that he "had actual or apparent authority to alter the terms, conditions, and privileges of Plaintiff's employment" (Complaint ¶¶ 41, 54, 84). The information regarding Kelly's role is similarly limited and vague, although it too alludes to him being vested with supervisory authority. He is identified as "Chief of the City" (without specificity as to his responsibilities), who also possessed "actual or apparent authority" over the terms of M.'s employment (id. ¶ 85). While defendant asserts that there is no such position, it does so in the affirmation of counsel and in its legal memorandum; no admissible evidence or documents are submitted to this effect (see Def Mem 19; Affirmation in Support ¶ 31).
Given that I am asked at this stage only to evaluate the sufficiency of the causes of action pled in the complaint, which I must take as true and draw all reasonable inferences therefrom, I cannot say that the above-cited allegations demonstrate as a matter of law that they were not sufficiently high level such that there actions could not be attributed to DGS (see Poolt v Brooks, 38 Misc.3d 1216[A], at *8 [Sup Ct, New York County Jan 18, 2023] ["it has yet to be determined if [alleged harasser] was plaintiff's supervisor, a low-level supervisor, or any kind of supervisor at all, but under the applicable standards, for purposes of defendants' summary judgment motion the court must consider David to have been plaintiff's supervisor"]). Accordingly, I find that defendant has not shown it is entitled to dismissal of the complaint on this ground.
M. also asserts that she went to three DGS Supervisors to report what had happened, her complaints were ignored, and Kelly persisted in his advances and then retaliated against her until she recorded their conversation and made a further report leading to his demotion (id. ¶¶ 62-76). The failure to discipline an employee may constitute condoning of his actions (see Medical Exp. Ambulance Corp. v Kirkland, 79 A.D.3d 886, 887 [2d Dept 2010] [citations and internal quotation marks omitted]["condonation contemplates a knowing, after-the-fact forgiveness or acceptance of an offense"]). In light of the above, I need not decide whether the alleged initial failure to discipline Kelly could constitute condonation if it was followed subsequently by disciplinary measures. I note the issue only so as not to preclude either party from subsequently raising such arguments.
IV. Negligent Hiring and Supervision
Defendant also seeks dismissal of plaintiff's second cause of action for negligent hiring and supervision, on the ground that the complaint "fails to sufficiently allege foreknowledge of the wrongdoers' tortious propensities" (Def Mem 12).
To plead causes of action for negligent hiring and retention, plaintiff must "sufficiently plead that the district knew or should have known about [the relevant employee's] propensity for the type of conduct at issue" (Doe v Hauppauge Union Free Sch. Dist., 213 A.D.3d 809, 810-811 [2d Dept 2023]; see also Fuller v Family Services of Westchester, Inc. 209 A.D.3d 983, 984 [2d Dept 2022] [dismissing negligent hiring/retention claim where "complaint failed to sufficiently allege that [the employer] knew of, or should have known, of a propensity on the part of the youth mentor, since it failed to sufficiently allege that [the employer] knew, or should have known of a propensity on the part of the youth mentor to commit the alleged wrongful acts"]). Such a cause of action "need not be pleaded with specificity," but the complaint must contain more than "bare legal conclusions" as to the individual's propensity for improper conduct that [are]... unsupported by the alleged facts" (Doe, 213 A.D.3d at 811).
No allegations are made as to any knowledge by defendant of Sherry's propensity for sexual misconduct prior to his alleged forcible touching and kissing of plaintiff, and thus any negligent hiring or supervision claim as to him must be dismissed. As to Kelly, M. alleges the following relating to defendant's purported knowledge of his propensities:
• "Based upon what the City of Albany knew or should have known about City Chief Tom Kelly's dangerous propensities towards Plaintiff, the City of Albany had a duty to control City Chief Tom Kelly's conduct during all times that he was acting, or otherwise empowered to act, as an employee of the City of Albany, including but not limited to controlling City Chief Tom Kelly's actions relating to female employees of the City of Albany by virtue of his position" (Complaint ¶ 101).
• The City of Albany was required "to act with reasonable care in its retention of City Chief Tom Kelly based upon what City of Albany knew or should have known about City Chief Tom Kelly's dangerous propensities towards women" (id. ¶ 103).
• "Given actual and/or constructive knowledge of City Chief Tom Kelly's propensity to target women, the sexual assault of Plaintiff was reasonably foreseeable to City of Albany" (id. ¶ 105).
• Kelly was provided by the City "with unfettered access to Plaintiff. Despite knowing that women who encountered City Chief Tom Kelly by virtue of his position as a senior official in the City of Albany, were in the zone of foreseeable risk for sexual misconduct by City Chief Tom Kelly" (id. ¶ 106).
• The City "created an environment which fostered sexual harassment and sexual abuse of female staffers" (id. ¶ 107).
Courts have not been entirely consistent as to what allegations of prior notice are sufficient to set forth a a negligent hiring/retention claim, and whether such conclusory "known or should have known" language will suffice (compare Doe, 213 A.D.3d at 811 [complaint that contained "little more than bare legal conclusions as to [employee's] propensity for improper conduct that were entirely unsupported by alleged facts insufficient to state claim for negligent hiring/retention"] and Herskovitz v Equinox Holdings, Inc., 2013 WL 2642956, at *10 [Sup Ct, NY County June 3, 2013] ["conclusory allegations" that defendant "knew or should have known of [the employee's] propensity to commit injury" insufficient to state a negligent hiring claim] with Wagner v State, 214 A.D.3d 930, 932 [2d Dept 2023] [allegation that defendant "became aware, or should have become aware" of employee's "propensity to commit sexual abuse" was sufficient to plead this element of a negligent claim, so as to meet higher pleading standard under Court of Claims Act § 11(b)] and Belcastro v Roman Catholic Diocese of Brooklyn, New York, 213 A.D.3d 800, 802 [2d Dept 2023] [negligent hiring/supervision claim adequately alleged when complaint stated that defendants knew employees were abusing plaintiff or "had the propensity to abuse"]). But the Third Department has now squarely addressed this question of whether such conclusory language is sufficient to allege the requisite knowledge of an employee's propensity, and answered it in the negative. In Eaterbrooks v Schenectady County (218 A.D.3d 969 [3d Dept 2023]) the Court considered a CVA case alleging negligent hiring and retention against Warren County in regard to a foster father who was alleged to have abused plaintiff. The complaint asserted that defendants "knew or in the exercise of reasonable care, should have known" that the father "had the propensity to engage in sexual abuse of children" (id.). The Court found that the "complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm" (id. [emphasis in original]). As a result, it found the negligent hiring and retention claim should have been dismissed as to Warren County. In regard to other counties, where plaintiff alleged "that [plaintiff]] reported the sexual abuse thereby providing the municipal defendants with notice of the dangerous condition," the complaint was allowed to go forward (id.).
The boilerplate language found insufficient in Easterbrooks is virtually identical to what was alleged here. The only allegation in the complaint that DGS was aware of any propensity by Kelly towards abuse is that the DGS "knew or should have known" of such propensity for unspecified reasons. No other language in the pleading salvages this cause of action. The allegation that the City "created an environment" in which sexual harassment was fostered does not support a negligent hiring or retention claim. And the allegation that DGS continued to employ Kelly after M. complained about his conduct does not provide a basis for such a claim whose timeliness is preserved by the ASA, since no actions falling under that statute are alleged to have occurred subsequent to any complaint by M. (see 106 N. Broadway, LLC v Lawrence, 189 A.D.3d 733, 736 [2d Dept 2020] [allegation of complaint by employee insufficient to support negligent hiring/retention cause of action, because the complaint "fails to allege that Levy continued to engage, during her remaining tenure with Houlihan Lawrence, in the alleged conduct after the plaintiff complained"]).
For these reasons, I find that plaintiff failed to sufficiently plead her negligent hiring and retention cause of action, and defendant's motion to dismiss is granted as to this claim.
V. Striking Material under CPLR 3024(b )
CPLR 3024(b) permits a Court "to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Defendant argues that to the extent this case is not dismissed on the grounds set forth above, all allegations besides the 2012 alleged assault should be struck under this provision.
Under section 3024(b), the Court may strike allegations that are not relevant to plaintiff's causes of action, "but it could serve to prejudice respondent" (see Matter of Albany Law School v New York Office of Mental Retardation & Dev. Disabilities, 81 A.D.3d 145 [3d Dept 2011] [striking historical account of abuse in New York State facilities, as irrelevant to application to access various current clinical records in those places], affirmed as modified on other grounds, 19 N.Y.3d 106 [2012]).
Defendant argues that all of the allegations except those in regard to Kelly's alleged sexual assault should be struck under this provision. Plaintiff, for her part, contends that because the events detailed in the complaint are part of the same "series of transactions and occurrences," none of it should be struck (see Pl Mem 13). The answer lies somewhere in between.
Plaintiff's assertion ignores the fact that the complaint as a whole would be untimely were it not for the ASA. The fact that some of the allegations are now potentially timely does not mean that everything alleged in the complaint therefore evades the limitations bar by virtue of sharing a pleading with these revived claims. Rather, the question is whether, under the laws of sexual harassment, the other acts described are sufficiently related to the now-potentially timely allegations that they may remain a part of the complaint even though the limitations period would have passed for them standing alone.
There are instances when courts have allowed conduct barred by the statute of limitations to be considered in assessing the merits of timely claims asserted by plaintiff. For example, in Long v Aerotek, Inc. (202 A.D.3d 1216 [3d Dept 2022]), the Court found that conduct beyond the statute of limitations by the alleged primary creator of a hostile work environment, which included threats to impede plaintiff's career is she did not give in to his sexual advances, were "relevant to events during the [subsequent] period" and thus such earlier conduct "may be considered on what is indisputably a timely hostile work environment claim" (id. at 1218-1219; see also Fitzgerald v Henderson, 251 F.3d 345, 365 [2d Cir 2001] [while dismissing what Court termed "Phase I" of harassment allegations as untimely, that did not make it irrelevant to events that fall within the limitations period]).
As the Second Circuit has noted in this regard: "A statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period." (Fitzgerald, 251 F.3d at 365). It also said, however, that it would have been "skeptical as to the relevance of [the earlier evidence if there were a significant hiatus" between the time-barred and the timely phase of harassment, although it had "no serious doubts as to its relevance where there is evidence of a swift transition from entreaty [in the first phase] to retribution [in the second]" (id.).
Further, under the law of sexual harassment, particular acts occurring outside the limitations period may be considered timely under the "continuing violation" doctrine; that applies "where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" ((Matter of Lozada v Elmont Hook & Ladder Co. No. 1, 151 A.D.3d 860, 862 [2d Dept 2017]). To demonstrate such a continuing violation, plaintiff must show that the "discriminatory conduct within the limitations period sufficiently similar to the conduct without the limitations period to justify the conclusion that both were part of a single discriminatory practice" (Clark v State, 302 A.D.2d 942, 944 [4th Dept 2003]).
Applying these principles to this case, the kind of connection at issue in Long and Fitzgerald simply does not exist here between the events of 2008 and prior, and those that succeeded them to establish that the former are relevant to the latter - much less that they allege a "continuing violation." The 2000 allegations involve a physical assault with no alleged sexual component, and while the details alleged for the 2004-2008 period certainly set forth claims of sexual harassment, they involve a different set of individuals, at a different work location than the later claims. The only connection between the pre-2009 and subsequent violations is that they involve allegations against sexual harassment against the same employer. But as both Fitzgerald and Lozada make clear, that is not enough to establish either that the time-barred claims are relevant, or that they are part of a continuing violation (see Mario v New York State Division of Human Rights, 200 A.D.3d 1591, [4th Dept 2021] ["petitioner failed to establish that the alleged acts occurring before and during the limitations period were not separate and unrelated incidents," and thus continuing violation doctrine did not apply]).
Given the above rulings, however, the allegations against Sherry and Kelly remains part of the sexual harassment claim. Moreover, as to these allegations, I do not agree with defendant's contention that only the assault itself remains relevant (see Def Mem 17). As Fitzgerald notes, conduct may be relevant even if it is not part of the claim. All of the allegations involving the conduct of these two individuals is sufficiently related to the revived assault allegations to pass the relevance threshold, and thus there is no basis to strike them from the complaint.
I make no finding as to whether any non-assault allegations regarding Sherry or Kelly (such as allegations regarding Sherry's entry into the woman's bathroom), may be viewed as part of a "continuing violation" with the assault allegations revived by the ASA, and thus may be considered as part of the hostile work environment claim. On the motion to strike, the only issue is the relevance of these portions of the complaint, which I resolve above.
As a result, defendant's motion to strike is granted to the extent that paragraphs 16 to 40 are stricken from the complaint, and is otherwise denied.
Accordingly, it is hereby ORDERED that defendant's motion is granted to the extent that plaintiff's second cause of action for negligent hiring and retention is dismissed, and paragraphs 16 through 40 (inclusive) of the complaint are stricken pursuant to CPLR 3024(b), but is otherwise denied.
The original Decision and Order is being electronically filed with the County Clerk, with a copy e-mailed to counsel. The electronic filing of the Decision and Order does not relieve counsel from the applicable provisions of the CPLR concerning filing and service of Notice of Entry.
Papers Considered:
1. Notice of Motion and Attorney Affirmation in Support of Robert Magee, Esq., dated September 1 2023, with Exhibits annexed thereto, and Memorandum of Law, September 1, 2023.
2. Plaintiff's Memorandum of Law in Opposition, dated September 25, 2023.
3. Reply Affirmation of Robert Magee, Esq., dated September 29, 2023, with Exhibits annexed thereto, and Memorandum of Law in Reply, dated September 29, 2023.