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Hart v. Sullivan

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 1981
84 A.D.2d 865 (N.Y. App. Div. 1981)

Summary

analyzing sexual harassment and discrimination in the workplace claims under the workers' compensation statute, and dismissing them because the lack of willfulness on the part of the corporate employer — as opposed to the harassing co-workers — necessitated the conclusion that the complaint against the employer was barred by workers' compensation

Summary of this case from Torres v. Pisano

Opinion

November 19, 1981


Appeal from an order of the Supreme Court at Special Term (Shea, J.), entered September 23, 1980 in Clinton County, which, inter alia, denied the motion by defendant P C Food Markets, Inc., to dismiss the complaint against itself and defendants Kenneth Sullivan and Mike Buker, in their capacity as managerial employees of P C Food Markets, Inc., for failure to state a cause of action. Plaintiff June Hart alleges in the first cause of action of her second amended complaint that defendants Sullivan and Buker, coemployees of defendant P C Food Markets, Inc., intentionally inflicted emotional distress upon her because she resisted sexual advances by Sullivan, and that such acts were performed in the course of their employment. In a second cause of action, plaintiff alleges that the corporate defendant discriminated against her in the terms, conditions and privileges of employment because of her sex in violation of section 296 Exec. of the Executive Law. A third cause of action was a derivative claim for loss of services by plaintiff's husband. P C Food Markets, Inc., moved to dismiss the complaint against itself and the individual defendants in their managerial capacity (CPLR 3211). The motion was denied by Special Term and this appeal ensued. A sympathetic reading of the first cause of action of the second amended complaint fails to surface any specific allegation that the corporate defendant committed any intentional, tortious or willful act against plaintiff that would trigger the intentional tort exception to the exclusivity provision of the Workers' Compensation Law. Willfulness on the part of the employer is a prerequisite to a deprivation of the exemption afforded by the Workers' Compensation Law, and a mere allegation of agency and liability by way of respondeat superior will not suffice to strip the employer of the protection of the statute (Estupinan v Cleanerama Drive-In Cleaners, 38 A.D.2d 353, 355). Next, since the Workers' Compensation Law provides that excluded actions include those of spouses of injured employees, plaintiff's husband's derivative action is also barred. Finally, plaintiff's second cause of action based on an alleged violation of section 296 Exec. of the Executive Law must be dismissed. The doctrine of respondeat superior is not applicable in cases involving sex discrimination (Matter of State Univ. of N.Y. at Albany v. State Human Rights Appeal Bd., 81 A.D.2d 688). To resist a motion to dismiss, the complaint must allege that the employer had knowledge or acquiesced in the discriminatory conduct of a supervisor or co-worker (State Div. of Human Rights v. Henderson, 49 A.D.2d 1026). Here, no such allegations are made in the second cause of action. Needless to say, the husband's derivative action is barred and, in any event, could not be maintained even if the wife had alleged a valid cause of action based on a violation of section 296 Exec. of the Executive Law. Violation of a person's civil rights exposes the person or entity guilty of the discriminatory act to civil penalties to be received by the person aggrieved (Civil Rights Law, §§ 40-c, 40-d; see Executive Law, § 291, subd 1). Order modified, on the law, by reversing so much thereof as denied the motion to dismiss the complaint against P C Food Markets, Inc., and Kenneth Sullivan and Mike Buker, in their managerial capacity; motion granted and complaint against P C Food Markets, Inc., and Kenneth Sullivan and Mike Buker, in their managerial capacity dismissed; and, as so modified, affirmed, with costs. Mahoney, P.J., Sweeney, Kane, Casey and Weiss, JJ., concur.


Summaries of

Hart v. Sullivan

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 1981
84 A.D.2d 865 (N.Y. App. Div. 1981)

analyzing sexual harassment and discrimination in the workplace claims under the workers' compensation statute, and dismissing them because the lack of willfulness on the part of the corporate employer — as opposed to the harassing co-workers — necessitated the conclusion that the complaint against the employer was barred by workers' compensation

Summary of this case from Torres v. Pisano

dismissing plaintiff's sexual harassment and discrimination claims because the lack of willfulness on the part of the corporate employer, as opposed to wilful conduct by plaintiff's co-workers, necessitated the conclusion that plaintiff's negligence claim was barred by workers' compensation

Summary of this case from Lai v. Deiorio Foods Inc.
Case details for

Hart v. Sullivan

Case Details

Full title:JUNE HART et al., Respondents, v. KENNETH SULLIVAN et al., Individually…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 19, 1981

Citations

84 A.D.2d 865 (N.Y. App. Div. 1981)

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