Doe v. Clark

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 2026
• Docket: 2025-03300
• Status: Published

Opinion

Doe v Clark - 2026 NY Slip Op 04279

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Doe v Clark

2026 NY Slip Op 04279

July 8, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jane 07 Doe, respondent,

v

Thomas L. Clark, et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2025-03300, (Index No. 900047/23)

Angela G. Iannacci, J.P.

Helen Voutsinas

Janice A. Taylor

James P. McCormack, JJ.

Littler Mendelson, P.C., Melville, NY (Ellen R. Storch and Vernée C. Pelage of counsel), for appellants.

Fiscella & Associates, P.C., Garden City, NY (James B. Fiscella of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and intentional infliction of emotional distress, the defendants appeal from an order of the Supreme Court, Nassau County (Sarika Kapoor, J.), entered January 23, 2025. The order, insofar as appealed from, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss so much of the second amended complaint as was based upon acts occurring after the plaintiff turned 18 years old and the demand for punitive damages under the fourth cause of action insofar as asserted against the defendant Goodyear Tire and Rubber Company.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss so much of the second, fourth, and fifth causes of action as were based upon acts occurring after the plaintiff turned 18 years old and the demand for punitive damages under the fourth cause of action insofar as asserted against the defendant Goodyear Tire and Rubber Company, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants.

The plaintiff commenced this action, among other things, pursuant to the Adult Survivors Act (see CPLR 214-j) against the defendants, Thomas L. Clark and Goodyear Tire and Rubber Company (hereinafter Goodyear), to recover damages for intentional infliction of emotional distress (second cause of action), hostile work environment on the basis of sex in violation of Executive Law § 296 (third cause of action), negligent retention, training, and supervision (fourth cause of action), and negligence (fifth cause of action). The second amended complaint alleged, inter alia, that the plaintiff, while employed by Goodyear, was sexually abused by Clark, her general supervisor/manager at retail stores owned and operated by Goodyear, for more than a nine-year period. The defendants moved pursuant to CPLR 3211(a) to dismiss the second amended complaint, including the demand for punitive damages. The plaintiff opposed the motion. In an order entered January 23, 2025, the Supreme Court, among other things, denied those branches of the defendants' motion which were to dismiss so much of the second amended complaint as was based upon acts occurring after the plaintiff turned 18 years old and the demand for punitive damages under the fourth cause of action insofar as asserted against Goodyear. The defendants appeal from that portion [*2]of the order.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Barrack v Village of Piermont, 245 AD3d 779, 779). Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery (see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142; Barrack v Village of Piermont, 245 AD3d at 779).

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 121; Joo Tae Yoo v Choi, 210 AD3d 1062, 1064). In the second cause of action, the plaintiff alleged, inter alia, that Goodyear was vicariously liable for the actions of its employees who knew that Clark was sexually abusing her but refused to report it in support of a "culture of silence." Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment (see Riviello v Waldron, 47 NY2d 297, 302; Browne v Lyft, Inc., 219 AD3d 445, 446). Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment (see Riviello v Waldron, 47 NY2d at 304; Browne v Lyft, Inc., 219 AD3d at 446). An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business (see Doe v Grant Wilfley Casting, Inc., 246 AD3d 1038, 1039; Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1359).

Where an employee's actions are taken for wholly personal reasons, which are not job-related, the challenged conduct cannot be said to fall within the scope of employment (see Doe v Grant Wilfley Casting, Inc., 246 AD3d at 1039; Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1360). A sexual assault perpetrated by an employee is not in furtherance of an employer's business and is a clear departure from the scope of employment, having been committed for wholly personal motives (see Doe v Grant Wilfley Casting, Inc., 246 AD3d at 1039; Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1360). Here, treating as true the allegations in the second amended complaint, that Clark sexually assaulted the plaintiff while at work and that Goodyear's employees consciously chose not to report the sexual assaults committed by Clark, such conduct was a departure from their duties as employees of Goodyear and cannot be said to have been within the scope of their employment (see Doe v Grant Wilfley Casting, Inc., 246 AD3d at 1039; Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1359). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was to dismiss so much of the cause of action alleging intentional infliction of emotional distress as was based upon acts occurring after the plaintiff turned 18 years old insofar as asserted against Goodyear.

Under the Workers' Compensation Law, an employee's recovery of workers' compensation benefits is his or her exclusive remedy against his or her employer or coworkers for injuries sustained in the course of his or her employment (see Workers' Compensation Law §§ 11[1]; 29[6]; Hamer v FPG Am., LLC, 235 AD3d 624, 625). "While an intentional tort may give rise to a cause of action outside the ambit of the Workers' Compensation Law, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to this particular employee" (Kruger v EMFT, LLC, 87 AD3d 717, 718-719 [internal quotation marks omitted]). Here, contrary to the plaintiff's contentions, the allegations of the fourth cause of action, alleging negligent retention, training, and supervision, and the fifth cause of action, alleging negligence, do not rise to the level of "an intentional tort committed, instigated or authorized by the employee's employer" (Randall v Tod-Nik Audiology, 270 AD2d 38, 39), such that the exclusivity provisions of the [*3]Workers' Compensation Law would not apply to bar the causes of action (see Workers' Compensation Law § 11[1]; Rodriguez v Dickard Widder Indus., 150 AD3d 1169, 1171). Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were to dismiss so much of the fourth and fifth causes of action as were based upon acts occurring after the plaintiff turned 18 years old and the demand for punitive damages under the fourth cause of action insofar as asserted against Goodyear.

However, the Supreme Court properly denied that branch of the defendants' motion which was to dismiss so much of the cause of action alleging a hostile work environment on the basis of sex as was based upon acts occurring after the plaintiff turned 18 years old insofar as asserted against Goodyear. A plaintiff claiming a hostile work environment animated by discrimination in violation of the New York State Human Rights Law (see Executive Law § 296) must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment (see Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003). To determine whether a hostile work environment exists, a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiff's work performance (id.). Even a single incident of sexual harassment can create a hostile work environment if the alleged conduct is sufficiently severe (see Beharry v Guzman, 33 AD3d 742, 743).

Under Executive Law § 296, an employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it (see Doe v State of New York, 89 AD3d 787, 788; Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886, 887). Only after an employer knows, or should have known, of the improper conduct can it undertake or fail to undertake action which may be construed as condoning the improper conduct (see Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d at 887). Here, assuming the facts alleged in the second amended complaint to be true and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the second amended complaint sufficiently alleged that Goodyear, by its managers and supervisors, knew or should have known about the offensive conduct and that its inaction in response to the offensive conduct may have indicated condonation or acceptance of the conduct (see Godino v Premier Salons, Ltd., 140 AD3d 1118, 1120; Mitchell v TAM Equities, Inc., 27 AD3d 703, 705-706).

IANNACCI, J.P., VOUTSINAS, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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