Opinion
December 21, 1990
Appeal from the Supreme Court, Herkimer County, O'Donnell, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Lawton, JJ.
Judgment unanimously reversed on the law with costs and motion denied. Memorandum: The court erred in granting defendants' motion for summary judgment because defendants failed to meet their burden of proving as a matter of law that the remarks made by their employee, a waitress, to a customer about plaintiff's sexual preference were outside the scope of her employment (see generally, Riviello v. Waldron, 47 N.Y.2d 297, 303; Murray v. Watervliet City School Dist., 130 A.D.2d 830), particularly in light of the fact that her job responsibilities included making conversation with the customers (cf., Heindel v. Bowery Sav. Bank, 138 A.D.2d 787). We further find that plaintiff has raised a question of fact whether defendants ratified their employee's statements (see, e.g., Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684; see generally, 52 N.Y. Jur 2d, Employment Relations, § 358).