Majtan v. Howard D. Johnson Co.

Appellate Division of the Supreme Court of New York

Majtan v. Howard D. Johnson Co.

168 A.D.2d 912

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 1990·Published·Cited by 1 cases

Opinion

Judgment unanimously reversed on the law with costs and motion denied. Memorandum: The court erred in granting defendants’ motion for summary judgment because defendants failed to meet their burden of proving as a matter of law that the remarks made by their employee, a waitress, to a customer about plaintiff’s sexual preference were outside the scope of her employment (see generally, Riviello v Waldron, 47 NY2d 297, 303; Murray v Watervliet City School Dist., 130 AD2d 830), particularly in light of the fact that her job responsibilities included making conversation with the customers (cf., Heindel v Bowery Sav. Bank, 138 AD2d 787). We further find that plaintiff has raised a question of fact whether defendants ratified their employee’s statements (see, e.g, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684; see generally, 52 NY Jur 2d, Employment Relations, § 358). (Appeal from judgment of Supreme Court, Herkimer County, O’Donnell, J.—summary judgment.) Present—Callahan, J. P., Doerr, Boomer, Pine and Lawton, JJ.

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Judgment unanimously reversed on the law with costs and motion denied. Memorandum: The court erred in granting defendants’ motion for summary judgment because defendants failed to meet their burden of proving as a matter of law that the remarks made by their employee, a waitress, to a customer about plaintiff’s sexual preference were outside the scope of her employment (see generally, Riviello v Waldron, 47 NY2d 297, 303; Murray v Watervliet City School Dist., 130 AD2d 830), particularly in light of the fact that her job responsibilities included making conversation with the customers (cf., Heindel v Bowery Sav. Bank, 138 AD2d 787). We further find that plaintiff has raised a question of fact whether defendants ratified their employee’s statements (see, e.g, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684; see generally, 52 NY Jur 2d, Employment Relations, § 358). (Appeal from judgment of Supreme Court, Herkimer County, O’Donnell, J.—summary judgment.) Present—Callahan, J. P., Doerr, Boomer, Pine and Lawton, JJ.

Majtan v. Howard D. Johnson Co., 168 A.D.2d 912 (N.Y. Ct. App. 1990).

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Opinion

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