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April 2020

New York Employment Team Creates New Precedent

New York attorneys Misty Marris and Brittany Primavera, members of Gordon Rees Scully Mansukhani's employment group, were successful in obtaining a complete dismissal of all claims against their client, a private New York college, in New York Supreme Court, Westchester County.

Plaintiff brought claims of common law negligence against the college relating to an alleged assault by a fellow student and co-defendant. Plaintiff claimed the college was negligent in failing to protect her in an off-campus assault and for failing to provide adequate assistance and subsequent security. Because the doctrine of in loco parentis does not apply to colleges or universities in the State of New York, the claim was dismissed.

Plaintiff also brought a claim under a relatively new statute, New York Civil Rights Law § 79-n. The statute, entitled “Bias-related violence or intimidation; civil remedy,” creates a basis of civil liability against "any person who intentionally selects a person or property for harm or causes damage to the property of another or causes physical injury or death to another in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.”

The Gordon & Rees team argued that a cause of action under this statute could only be brought against an individual actor, not an entity, due to the use of the word “person” and how it is applied in the context of the statute. Prior to the decision in the instant matter, only one published decision had addressed this statute – Gottwald v. Sebert, 2016 NY Slip Op 32815(U), 2016 NY Misc LEXIS 5202 [Sup Ct NY County, Korneich, J.], which involved litigation between the recording artist “Kesha” and music publisher Lukasz Gottwald and his companies. The court in that matter specifically declined to reach the issue of whether 79-n extended beyond individuals and included corporations as defined as “persons” under General Construction Law § 37.

The court in this matter addressed this question directly, and held that the statute’s use of the word “person” refers only to individual actors and not organizational entities. The court held that not only the strict interpretation of the word “person” led to its conclusion, but the language that the “person” had to have taken action based upon his or her beliefs or perceptions.

This is an interesting and exciting new precedent created by the New York Supreme Court and obviates all doubt that a cause of action under this statute cannot be sustained against defendant corporate entities.

Misty D. Marris
Brittany L. Primavera