Rosa v Levinson

[*1] Rosa v Levinson 2009 NY Slip Op 51997(U) [25 Misc 3d 1207(A)] Decided on September 30, 2009 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 30, 2009
Supreme Court, Kings County

Marilyn Rosa, Plaintiff,

against

Eugene Levinson, DDS & Eugene Levinson, DDS, P.C., Defendants.



16441/06



ATTORNEYS FOR PLAINTIFF

BERNFELD, DEMATTEO & BERNFELD, LLP

600 THIRD AVENUE 15TH FLOOR

NEW YORK, NEW YORK 10016

212-661-1661

ATTORNEY FOR DEFENDANTS

LAW OFFICES OF JASON L. ABELOVE

666 OLD COUNTRY ROAD, SUITE 304

GARDEN CITY, NEW YORK 11530

516-222-7000

Martin Schneier, J.

The primary issue presented in this motion is whether a dentist who is the principal of his professional dental corporation should be treated as an "employee" of the corporation for purposes of this sexual harassment lawsuit where it is alleged that his dental assistant was sexually abused by him over a long period of time, under New York's Human Rights Laws which requires that an employer have [*2]"at least four persons in his employ" to be liable for damages.

This is apparently an issue of first impression in this State.

In this case alleging sexual harassment and related causes of action defendants move, pursuant to CPLR § 3212, for an Order granting summary judgment dismissing the complaint.

Background

Plaintiff alleges that while she was employed as dentalassistant and office manager by defendant, Eugene Levinson, DDS, P.C., from August 2002 to March 31, 2005, she was sexually harassed by its principal owner, sole shareholder and officer, defendant, Dr. Eugene Levinson. This harassment allegedly included both comments of a sexual nature, as well as physical touching. The last act of physical touching, an unwanted kiss, occurred on May 31, 2005. On that day, the plaintiff resigned.

Plaintiff in her complaint avers six causes of action in pertinent part as follows: "8. Almost immediately upon beginning her employment, Plaintiff was subjected to a continuous stream of inappropriate comments and conduct of a sexual nature, by Dr. Levinson."

"FIRST CAUSE OF ACTION"

(Sex Discrimination in Violation of New York State Human Rights Law) "47. At all relevant times, Defendants' were an "employer"for purposes of the New York State Human Rights Law48. Plaintiff endured sexual insults, comments and questioning and sexual physical contact from Dr. Levinson that was unwelcome, sever, pervasive, regular, repeated and continuous."

"SECOND CAUSE OF ACTION"

(Sex Discrimination in Violation of New York City Human Rights Law) "57. At all relevant times, Defendants' were an "employer" for purposes of the New York City Human Rights Law.58. Plaintiff endured sexual insults, comments and questioning and sexual physical contact from Dr. Levinson, that was unwelcome, severe, pervasive, [*3]regular, repeated and continuos."

"THIRD CAUSE OF ACTION"

(Sex Discrimination in Violation of the Title VII)

"FOURTH CAUSE OF ACTION"

(Assault and Battery) "78. On several occasions during Plaintiff's employment, she was subjected to unwanted physical contact, and/or attempted physical contact by Defendant Dr. Levinson".

"FIFTH CAUSE OF ACTION"

(Intentional and Negligent Infliction of Emotional Distress) "84. The defendants owed a duty, as an employer, to refrain from making knowingly engaging in conduct and commentary of an explicitly sexual nature, that it knew to be greatly upsetting and degrading to Plaintiff.86. As a direct result of the breaches of duty described herein, the Plaintiff was made to suffer extreme emotional and psychological damages in an amount to be determined at trial, as well as punitive damages, in an amount to be determined at trial."

"SIXTH CAUSE OF ACTION'

(Prima Facia Tort) "88. The wrongful and illegal acts described herein were undertaken with the knowledge and intent that these acts would cause Plaintiff grievous injury and damage.""90. By reason of the conduct described herein, the Defendants have caused the Plaintiff to suffer substantial economic, emotional and psychological damages in an amount to be determined at trial, as well as punitive damages [*4]in an amount to be determined at trial."

Previously, the Court in its "Decision and Order" of March 16, 2007, denied without prejudice defendant's motion to dismiss the First and Second of Cause of Action; granted dismissal of the Third Cause of Action and denied defendant's request to dismiss the Fourth and Fifth Cause of Action.

Plaintiff filed the Note of Issue on February 20, 2009 and the case is scheduled for trial on October 14, 2009.

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied."(Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]).

A defendant moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.

(Alverez v Prospect Hosp., 68 NY2d 320 [1986]); Napolitano v Suffolk county Dept. Of Public Works, 65 AD3d 676 [2d Dept 2009]). Once the defendant has satisfied this obligation, the burden shifts and the plaintiff in opposing to the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY 2d557, 560 [1980]).

"FIRST AND SECOND CAUSES OF ACTION"

(Sex Discrimination in Violation of New York State Human Rights Law)

(Sex Discrimination in Violation of New York City Human Rights Law)

New York Executive Law Section 292(5) in pertinent part states:

"The term "employer" does not include any employer with fewer than four persons in his employ."

New York City Administrative Code Section 8-102 in pertinent part states: "the term "employer" does not include any employer with fewer than four persons in his or her employ."

The copies of New York State Forms NYS-45 (Quarterly Combined Withholding, Wage Reporting and Unemployment Insurance Return) submitted by defendants show that during the years of plaintiff's employment defendants only [*5]had two or three employees. Dr. Eugene Levinson in his affidavit avers that: "8. They also accurately reflect the number of employees that theDefendant Corporation employed during the relevant time period. At no time did the corporation employ more than (3) individuals."

Accordingly, defendants have established their prima facie entitlement to summary judgment dismissing the First and Second Causes of Action as a matter of law by showing that the defendants had less than four employees during the relevant time period. Plaintiff argues that, "in the circumstances of this case, defendant himself should be considered an employee for purposes of the Human Rights Law" as plaintiff and defendant worked side by side as dentist and dental technician/office manager during plaintiff's employment. Plaintiff also argues that this case presents an instance where the principal should be considered an employee.

The issue of whether a principal of a corporation should be considered an "employee" for purposes of the Human Rights Law is not well-settled in New York. In the leading case of Germakian v Kenny International Corp. (151 AD2d 342 [1st Dept 1989]) the Appellate Division held that: "[t]here may be instances where principals may be counted as employees for purposes of the Executive Law."

Accordingly, the opposition papers are sufficient to raise a triable issue of fact as to whether defendant, Dr. Eugene Levinson, should be treated as an "employee" for purposes of the Human Rights Law.

"THIRD CAUSE OF ACTION"

(Sex Discrimination in Violation of Title VII.)The Third Cause of Action was previously dismissed by this court in its "Decision and Order" of March 16, 2007.

"FOURTH CAUSE OF ACTION"

(ASSAULT AND BATTERY)The requisite elements of a cause of action for battery are: (1) bodily contact, (2) that such contact be harmful and offensive, and (3) that the defendant intended to make the contact (Cerilli v. Kezis, 16 AD3d 363 [2d Dept 2005]; Siegell v. Herricks, Union Free School Dist., 7 AD3d 607, 609 [2d Dept 2004]). "To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Cotter v. Summit Sec. Servs., 14 AD3d 475 [2d Dept 2005]; Fugazy v. Corbetta, 34 AD3d 728 [2d Dept 2006]).

The plaintiff in alleging that defendant forced an unwanted kiss upon the plaintiff, satisfied the elements of "Assault and Battery".

Defendants have failed to make a prima facie showing of entitlement to summary judgment dismissing the assault and battery cause of action as a matter of law by offering sufficient evidence to demonstrate the absence of any material issue of fact. Dr. Eugene Levinson [*6]in his affidavit does not deny the allegedly unwanted, forced kiss upon plaintiff.

The failure to make a prima facie showing requires the denial of defendant's motion to dismiss the assault and battery cause of action regardless of the sufficiency of the opposing papers (Napolitano v Suffolk County Dept. Of Public Works, 65 AD3d 676 [2d Dept. 2009]).

"FIFTH CAUSE OF ACTION"

(Intentional and Negligent Infliction of Emotional Distress)The motion to dismiss the Fifth Cause of Action is denied as moot in view of the Courts previous "Decision and Order" of March 16, 2007 in which, "the Court finds that the allegations are sufficient to sustain the claim".

"SIXTH CAUSE OF ACTION"

(Prima Facie Tort)

The requisite elements of a cause of action for prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful. (Freihofer v Hearst Corp. 65 NY2d 135 [1985]).

Here, no special damages are alleged and apparently none exist.

Accordingly, defendants have established their prima facie entitlement to summary judgment dismissing the prima facie tort cause of action as a matter of law by showing that special damages are not alleged by the plaintiff. In opposition, the plaintiff fails to raise a triable issue of fact.

CONCLUSION

In sum, the defendants' motion for summary judgment is granted only to the extent that the causes of action for sex discrimination in violation of Title VII and prima facie tort are dismissed. The remaining causes of action for sex discrimination in violation of New York State Human Rights Law and New York City Human Rights Law; assault and battery; and intentional and negligent infliction of emotional distress are not dismissed.

This constitutes the Decision and Order of the Court.

______________________

J.S.C.