MARTINEZ v. HANDS OF HOPE (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for a violation of Administrative Code of the City of New York § 8–107, the plaintiff appeals from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated March 3, 2025.  The order, insofar as appealed from, granted that branch of the motion of the defendant Hands of Hope P.T., P.C., which was for summary judgment dismissing the cause of action alleging a violation of Administrative Code of the City of New York § 8–107 insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action in 2022 against, among others, the defendant Hands of Hope P.T., P.C. (hereinafter HOH), inter alia, to recover damages for a violation of the New York City Human Rights Law (NYCHRL) (Administrative Code of City of NY § 8–107), arising out of an alleged sexual assault committed against her during a physical therapy appointment by a physical therapist assistant (hereinafter the employee).

In May 2024, HOH moved, among other things, for summary judgment dismissing the cause of action alleging a violation of the NYCHRL insofar as asserted against it.  In an order dated March 3, 2025, the Supreme Court, inter alia, granted that branch of the motion.  The plaintiff appeals.

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 N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 251;  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 Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933;  Doe v Grant Wilfley Casting, Inc., 246 AD3d 1038, 1039).  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 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 id.).  “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” (id.;  see N.X. v. Cabrini Med. Ctr., 97 NY2d at 251).  Here, HOH established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of the NYCHRL insofar as asserted against it by demonstrating that the employee's alleged conduct was a departure from his duties as a physical therapist assistant and, thus, outside the scope of his employment (see Judith M. v. Sisters of Charity Hosp., 93 NY2d at 933;  Rizzo v. Estate of Polifrone, 192 AD3d 564, 564;  Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1360).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of HOH's motion which was for summary judgment dismissing the cause of action alleging a violation of the NYCHRL insofar as asserted against it.

BARROS, J.P., WAN, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.