Published on:

Plaintiff has made a prima facie showing of entitlement

A Queens Sex Crime Lawyer said that, on August 19, 2008, plaintiffs jointly commenced the instant action by filing a summons and complaint with the King’s County Clerk’s office under index number 23739/08. The defendants joined issue by answer dated September 8, 2008. On August 20, 2008, the other plaintiff commenced her own separate action by filing a summons and verified complaint with the Nassau County Clerk’s office under index number 11424/2009. The defendants joined issue by verified answer dated September 4, 2008. On April 21, 2009, the two complaints were consolidated for joint trial in Kings County Supreme Court.

A Queens Criminal Lawyer said that, the first action alleges forty-six allegations of fact in support of three causes of action. Their first two causes of action claim violations of Executive Law 296(1): the first for sex harassment by the creation of a hostile work environment; and the second for constructive discharge. The third cause of action is for intentional infliction of emotional distress. All plaintiffs in the first action seek summary judgment on liability on the entire complaint. With the exception of plaintiff the complaint alleges that each plaintiff worked at MCPC up until June 13, 2008, when they discovered that defendant had installed and used a hidden camera in the only working restroom.

A Queens Sex Crime Lawyer said that, the second complaint alleges thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim violations of Executive Law Section 296(1): the first for sexual harassment by the creation of a hostile work environment; and the second for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for prima facie tort. The second action seeks summary judgment on liability on the first, second and fourth causes of action.

A Queens Sex Crime Lawyer said that, the plaintiffs’ joint motion papers consist of an attorney’s affirmation and seven annexed exhibits labeled 1 through 5, and A and B. Exhibit 1 is the summons and verified complaint. Exhibit 2 is defendants’ verified answer to verified complaint. Exhibit 3 is a district court felony criminal complaint against defendant. Exhibit 4 is a certificate of disposition of indictment dated January 25, 2011. Exhibit 5 is a certified transcript of the sentencing of criminal defendant on January 21, 2011 before Honorable Judge for the sex crime of unlawful surveillance in the second degree, a violation of Penal Law section 250.45(3)(a). Exhibit A is the summons and complaint in the first action. The defendants oppose the motion with an attorney’s affirmation, a memorandum of law, and a certified copy of the transcripts of defendant’s bench trial under indictment 2394N/2009 for the crime of unlawful surveillance in the second degree.

The issue in this case is whether defendant’s motion for summary judgment dismissing the compliant should be granted.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact.

Executive Law § 296(1)(a) states that: “It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

Discrimination claims brought under the NYSHRL are reviewed by New York State Courts borrowing many of the same standards that apply to federal claims brought under Title VII discrimination claims. “In order to state a claim for hostile work environment sexual harassment, the complaint must assert that plaintiff is a member of a protected class, that the conduct or words upon which the claim of sexual harassment is predicated were unwelcome, that the conduct or words created a hostile work environment which affected a term, condition or privilege of the employment and that the defendant is liable for such conduct. Under Federal and New York State Law, a plaintiff must also set forth that the alleged harassment was also sufficiently severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.”

Liability for non-supervisory employees’ creation of a hostile work environment will be imputed to the employer on the plaintiff’s showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action. However, employers are presumed absolutely liable for a hostile work environment created by its supervisors. Under Title VII, an employer need not have actual knowledge of the harassment; an employer is considered to have notice of sexual harassment if the employer-or any of its agents or supervisory employees, with immediate or successively higher authority over the employee, knew or should have known of the conduct. It is an affirmative defense of the employer that (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise”.

Penal § 250.45(3)(a), unlawful surveillance in the second degree provides in pertinent part as follows: A person is guilty of unlawful surveillance in the second degree when: For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent.

CPLR 3212 (b) states that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.

The defendants have admitted in paragraph five of their answer to the complaint that the plaintiffs worked for them at 75 Plandome Road, Manhasset, New York. However, there is no allegation of fact by anyone with personal knowledge indicating that any of the plaintiffs were employees of MCPC at the time the hidden camera was installed. Furthermore, there is no allegation of facts by anyone with personal knowledge that any of the plaintiffs suffered any embarrassment or mental anguish as a result of discovering the hidden camera or that any of them resigned upon discovery of same. In sum, the plaintiffs have not provided the court with an affidavit or sworn testimony by anyone with personal knowledge to any fact alleged in their unverified complaint.

The second verified complaint does not mention any fact regarding any plaintiff in the Moreno complaint. The felony complaint, certificate of disposition and sentencing minutes also make no reference to any plaintiff in the first complaint. In sum, there is not one allegation of fact or supporting document that satisfies the first plaintiffs’ burden to show prima facie entitlement to summary judgment on liability.

Plaintiff’s ‘ first cause of action is for sexual harassment in violation of Executive Law § 296(1)(a) through the creation a hostile work environment. She personally verified her complaint, therefore, pursuant to CPLR 105(u), it may be used as an affidavit. She swore to the following facts within her complaint based on her personal knowledge. In December of 2007, she began working at MCPC. Defendant is a licensed physician practicing as a cardiologist at MCPC and is also its president, principal and owner. In the first week of June 2008, he informed her and other employees that the staff bathroom was out of order, and directed all employees and patients to use the only other bathroom in the office. He showed her what appeared to be an air purifier that he plugged in and positioned directly in front of the toilet. Hughes did not know at the time that the air purifier installed in the bathroom contained a hidden camera. Defendant purchased the item from an online spy store. The camera was capable of transmitting images to a monitor in his office. She used this bathroom at least twice a day. On June 13, 2008, two Nassau County detectives walked into MCPC, arrested defendant and charged him with the felony of unlawful surveillance. After learning of his unlawful conduct, Hughes was overcome with great personal distress, humiliation, and embarrassment which eventually required her to seek medical treatment, and which continues to cause her great mental anguish and emotional distress. She resigned on June 13, 2008 and asserts that his conduct amounted to a constructive termination of employment.

A reasonable person would find the act of surreptitiously observing an individual’s private bathroom function to be an abusive act. Plaintiff by her reaction after discovery of the unlawful surveillance has demonstrated that she subjectively perceived the environment to be hostile Based on the foregoing plaintiff made a prima facie showing that defendant violated Executive Law §296(1)(a) by his acts which created a hostile work environment.

Plaintiff’s second cause of action is for intentional discrimination and constructive termination. To make out a prima facie showing that defendants committed this tort. Plaintiff must demonstrate the following: (i) she is a member of a protected class; (ii) she was constructively discharged; (iii) she was qualified to hold the position from which she was terminated; and (iv) the discharge occurred under circumstances giving rise to an inference of discrimination. To demonstrate that work conditions rise to the level of constructive discharge an employee must show that the employee’s working conditions are so intolerable that a reasonable person in the employee’s position would feel compelled to resign. Defendant’s conduct sufficiently satisfies the elements of a claim for constructive discharge. By installing a hidden camera in the business restroom, defendant deliberately made plaintiff’s working conditions so intolerable that a reasonable person in her position would have felt compelled to resign. Furthermore, she did resign in disgust after discovering the hidden camera. Plaintiff has made a prima facie showing of entitlement to summary judgment on the claim that defendants constructively discharged her in violation of Executive Law 296(1)(a).

In sum, plaintiff has made a prima facie showing of entitlement to summary judgment on liability in the first, second and fourth causes of action against both defendants. Therefore, the burden now shifts to the defendants to produce evidentiary proof sufficient to establish the existence of material issues of fact.

Accordingly, the court held that, plaintiffs’ motion to restore the action to the active trial calendar is granted as unopposed.

If you are involved in a similar situation, seek the help of a Queens Criminal Attorney and/or Queens Sex Crime Attorney in order to file the appropriate case against the culprit. Call us at Stephen Bilkis and Associates.

Posted in:
Published on:
Updated:

Comments are closed.

Contact Information