Employee's complaint alleging constructive dismissal and violation of the Freedom of Information Law dismissed

Plaintiff was employed by the New York City Department of Transportation [DOT] in 1997. In 2014 he resigned from his position and in 2017 commenced this action alleging that [1] he had been constructively discharged from his employment by DOT as the result of his reporting "other employees' misconduct," and [2] that the City of New York had failed to respond to his request to disclose certain records in violation of New York State's Freedom of Information Law [FOIL].

Supreme Court denied DOT's motion to dismiss Plaintiff's causes of action and DOT appealed. The Appellate Division reversed the lower court's order "on the law."

Addressing Plaintiff's complaint alleging constructive dismissal, the Appellate Division, citing Golston-Green v City of New York, 184 AD3d 24, explained that an "employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign."

Here, however, the Appellate Division, "accepting the facts as alleged to be true, and according the [Plaintiff] the benefit of every possible favorable inference," opined that Plaintiff's complaint "fails to state a cause of action alleging constructive discharge, as the allegations are either vague and conclusory" or involve events that allegedly occurred after the Plaintiff had resigned from DOT.

Addressing Plaintiff's complaints contending that New York City had violated FOIL, the Appellate Division said that a person alleging the denial of requested information within the meaning of Public Officers Law §89(4)(a), "must appeal the denial in writing to the head of the entity or other designated person within 30 days." Finding that Plaintiff did not submit an appeal within 30 days of the alleged denial, the Appellate Division said that Plaintiff had "failed to exhaust his administrative remedies" and because of this failure "could not resort to a judicial forum to gain relief."

Accordingly, the Appellate Division held that Supreme Court should have granted those branches of the City's motion seeking dismissal of Plaintiff's causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to FOIL.

Click HEREto access the Appellate Division's decision posted on the Internet.

Negligent hiring and, or, retention of employees

One of the issues considered by the Appellate Division in this action was the Plaintiff's allegation that the employer was negligent in its appointment and retention of certain employees.

A majority of the court, Judge Friedman dissenting in part in a separate Opinion, sustained this branch of Plaintiff's cause of action, noting:

1. "A cause of action for negligent hiring and retention requires allegations that an employer knew of its employee's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others;

2. "The cause of action does not need to be pleaded with specificity; and  

3. "Liability for negligent hiring and retention does not require a special relationship between the defendant and the alleged victim."

Further, opined the Appellate Division, "[l]iability for negligent hiring and retention is not limited to employees' actions within their scope of employment," explaining it obtains where the employer's negligence is a proximate cause of a plaintiff's injury.

Click HEREto access the Appellate Division's opinion.

Interested in becoming a New York City police officer?

Below are some of the titles of articles recently posted by Kevin P. Sheerin, Esq. on his Law Blog, Civil Service Disqualification Appeals Attorney.

NYPD Hiring Process

How to Become a NYPD Police Officer

Can I become a NYPD Police Officer without a HS diploma?

Appealing a NYPD Psychological Disqualification

NYPD Psychological Disqualification – Second Interview

Click the title highlighted in COLOR above to access the articles of interest.