Supreme Court, Albany County, January 25, 2024

Marisa Franchini, Corporation Counsel, Albany (Robert Magee of counsel), for defendant.

C.A. Goldberg, PLLC, Brooklyn (Ann S. Seifullah of counsel), for plaintiff.

By verified complaint filed August 10, 2023, plaintiff J.S.M. pleads causes of action for hostile work environment/sexual harassment under the New York State Human Rights Law (HRL), Executive Law § 290 et seq., and for negligent supervision, retention and training against defendant Albany Department of General Services (the Department or DGS). These claims arise out of J.S.M.'s employment with DGS between 1998 and 2012. The matter is now before me on defendant's pre-answer motion to dismiss the complaint as untimely and for failure to state a claim, or in the alternative to strike certain portions thereof. Plaintiff, for her part, argues that her complaint was [*2]timely filed under the Adult Survivors Act (ASA), codified in CPLR 214-j.

Plaintiff's complaint alleges that she was "constantly passed over for opportunities, harassed, assaulted, and abused because of her gender," and when she complained "she suffered severe retaliation; an intensely hostile environment caused by male supervisors and some of her co-workers; and additional abuses directed at her on the basis of her gender" (complaint ¶ 4). The key allegations in the pleading are as follows:

J.S.M. began her employment with DGS in 1998, and in 2000 was assigned to a sanitation garage, at which she was the only woman (id. ¶¶ 11-16). In the middle of the year, one of her managers grabbed her by her jacket and threw her against the wall while she was waiting to clock out (id. ¶ 16). Although her union representative tried to get her to file a complaint with the police, she "felt unsafe" doing so (id. ¶¶ 20-22). J.S.M. asserts that no one at the Department investigated, it failed to provide her with "support or protection," and the manager was not disciplined for his conduct as a result (id. ¶ 23).

J.S.M. was transferred to the Capitol Hills Golf Course in 2004, and she characterizes the four-year period that followed as one in which she was subjected to a hostile work environment, in that (1) the foreman "made it clear that he did not like [J.S.M.]'s presence because she was the female employee{**83 Misc 3d at 1084} at the golf course" (id. ¶ 26); (2) the all-male crew "expressed outward disdain for [her] presence," complaining that they could not watch or keep pornography because of her (id. ¶ 27); (3) she was routinely called sexist slurs (id. ¶ 28); (4) she witnessed pornographic images on the foreman's computer (id. ¶ 29); (5) the foreman "expressed annoyance" that the employees' beer drinking had to stop "at the arrival of a 'lady' " (id. ¶ 30); and (6) one employee (Mark) spoke "loudly and aggressively" with J.S.M. present on sexual topics, including how he had forced a woman to give him oral sex, and her complaints about such were ignored (id. ¶¶ 31-32). She also describes a circumstance in which she reported Mark to the Commissioner for fraudulently claiming overtime, after which she was denied a transfer, was yelled at by the foreman, and faced more hostility (id. ¶¶ 33-37). According to the complaint, J.S.M. also sought light duty because of pain she was suffering, and it was denied for her but approved for one of her male coworkers who "upon information and belief" had less serious injuries (id. ¶ 39).

At or about the end of 2008 and beginning of 2009, J.S.M. was transferred to the DGS garage, where she alleges that she "became the target of sexual harassment by the Foreman . . . Dave Sherry" (id. ¶ 41). Specifically, she states that Sherry would wait for her in the women's restroom and refuse her requests that he leave (id. ¶¶ 42-43). Once, according to the complaint, he cornered her and kissed the back of her neck, until she yelled at him to stop (id. ¶ 44). She did not report this incident "for fear of retaliation" and because "[s]he had already learned that as a woman in DGS, her complaints would not be investigated" (id. ¶ 48). On another occasion, Sherry's presence in the women's bathroom was seen by J.S.M.'s coworkers and was investigated by the DGS Commissioner, but "[o]ut of reasonable and legitimate fear that retaliation would ensue" she declined to make a report of this incident, and Sherry was never disciplined (id. ¶¶ 52-53).

J.S.M. also alleges that starting in 2008 or 2009, another official, "Chief of the City" Tom Kelly, harassed her by making "flirtatious comments" and engaging in conversations regarding his desire to pursue her sexually (id. ¶ 54). She states that in one instance in the winter of 2011, he pushed her against the wall, forcibly kissed her, and compelled her to give him oral sex (id. ¶¶ [*3]56-60). She reported this to three DGS supervisors, but no one followed up (id. ¶ 62).

{**83 Misc 3d at 1085}According to the complaint, after this incident Kelly called her constantly, and showed up at her workplace when she did not answer (id. ¶¶ 63-65). After she eventually refused to take his calls, she says that he made a "false report" against her for theft of time, i.e., clocking in for hours she had not worked (id. ¶ 70). She then recorded a conversation with Kelly, in which she asked him why he had "hurt" her and "tr[ied] to have [her] suspended," and he said: "I would never let that happen" (id. ¶ 73). She brought the tape to her supervisors, which led to Kelly being transferred to a job as a street sweeper, although he was not terminated (id. ¶¶ 75-76). Plaintiff states that she was then retaliated against by being given "more physically difficult job assignments," and "treated with outright disdain" by her coworkers, who "shunned and ignored her," called her names and made degrading statements about her (id. ¶ 78). Ultimately, she retired early (id. ¶ 80).

Defendant has now moved to dismiss the complaint under CPLR 3211 (a) (2), (7) and (8) as untimely and failing to state a claim, or alternatively under CPLR 3024 (b)^[FN1] to strike "all allegations of tortious conduct not in violation of Article 130 of the Penal Law," which governs sex offenses (see affirmation in support [aff in supp] ¶ 2).

At the core of defendant's motion—and of the legal dispute between the parties presented in the submissions now before me—is whether and to what extent the causes of action asserted by plaintiff are timely under the Adult Survivors Act (ASA). That statute, set forth in CPLR 214-j, provides in relevant part as follows:

"Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years{**83 Misc 3d at 1086} of age or older, or incest as defined in section 255.26 or 255.27 of the penal law committed against such person who was eighteen years of age or older, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section."

There is no dispute that unless this statute applies, the causes of action in the complaint are all time-barred under General Municipal Law §§ 50-e and 50-i, which provide that a notice of claim be served within 90 days, and all actions against a municipality be brought within one year and 90 days (see McKie v LaGuardia Community Coll./CUNY, 85 AD3d 453, 454 [1st Dept 2011] [statute of limitations for employment discrimination claims against municipality [*4]is one year and 90 days]; see also mem of law in support of defendant's mot to dismiss [def mem] at 3).

Plaintiff argues, however, that because at least one of the actions in the complaint—the alleged sexual assault by Kelly—is covered by the ASA, the sexual harassment claim is timely, and the other allegations can be considered by the court to the hostile work environment on which this cause of action is based. In plaintiff's view, there is a direct causal connection between what her counsel characterizes as "a lack of oversight, attention, and safeguards implemented by management to account for and prevent sexual harassment in the workplace" reflected in the other allegations in the complaint, and the sexual assault allegation rendered timely by the ASA (see plaintiff's mem of law [pl mem] at 1).

For its part, DGS contends that, with the exception of the allegations of sexual assault against Kelly, the complaint—and both causes of action which are pleaded therein—are "not violations of Article 130 of the NY Penal Law" as covered by the ASA, and therefore must be dismissed as untimely (see affirmation in support [aff in supp] ¶ 60). Further, it argues that (1) CPLR 214-j is unconstitutional as applied to defendant; (2) the complaint fails to plead a sufficient claim of hostile work environment because it contains no allegations that defendant knew or should have known of the alleged conduct covered by the ASA; (3) no facts are alleged regarding Kelly's tortious propensities, as is necessary to support a negligent hiring{**83 Misc 3d at 1087} claim; and (4) no claim is made against defendant under a theory of respondeat superior (see id.). In the alternative to dismissal, defendant asks that I dismiss all allegations not constituting sexual offenses in violation of Penal Law article 130, leaving (in its view) only the allegation that Kelly had sexually assaulted plaintiff in the winter of 2011 (see id. ¶ 61).

As defendant's motion to dismiss is brought under CPLR 3211, I must "accord the complaint a liberal construction, assume its factual allegations to be true, draw every possible favorable inference therefrom and determine only whether any cognizable cause of action has been alleged" (Esposito-Hilder v SFX Broadcasting, 236 AD2d 186, 187-188 [3d Dept 1997]). However, allegations "consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration." (Simkin v Blank, 19 NY3d 46, 52 [2012], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999].) I consider defendant's arguments in light of this standard below.

I. The "As Applied" Constitutional Challenge^[FN2]

The constitutionality of a statute that revives claims previously time-barred was addressed [*5]most recently by the Court of Appeals in Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig. (30 NY3d 377 [2017]). That case stated that such statutes present no issue under the Due Process Clause of the Federal Constitution, except in circumstances not relevant here (id. at 394). Under the New York State Constitution, a claim revival statute is constitutional so long as it "was enacted as a reasonable response in order to remedy an injustice" (id. at 400; see also id. at 399-400 [statute constitutional if there was "an identifiable injustice that moved the legislature to act," and the revival must be "reasonable in light of that injustice"]).

{**83 Misc 3d at 1088}The ASA clearly meets this standard. The Legislature enacted the statute to address what it deemed to be New York's previously "insufficient statutes of limitations" regarding sexual assaults, and the presence of other obstacles which faced victims of such in bringing suit, so that those who were unable previously to seek recompense for sexual offenses may "be given the opportunity to seek civil redress against their abuser[s] . . . in a court of law" (see Carroll v Trump, 650 F Supp 3d 213, 222 [SD NY 2023] [discussing ASA's legislative history]). These grounds for the legislation easily meet the deferential "reasonable response" test, as has been found in regard to both the ASA and the CVA, which has the same essential purpose (see id. at 222-223 [upholding ASA against due process challenge]; Schearer v Fitzgerald, 217 AD3d 980, 982 [2d Dept 2023] [upholding CVA against due process challenge; statute "was a reasonable response to remedy the injustice to (child sexual assault survivors) caused by application of the relevant statute of limitations"], citing PB-36 Doe v Niagara Falls City Sch. Dist., 213 AD3d 82, 85 [4th Dept 2023]; Matarazzo v CHARLEE Family Care, Inc., 218 AD3d 941, 943 [3d Dept 2023] [CVA's one-year revival statute based, inter alia, on the "unique character of sex crimes"; constitutionality upheld]).

Defendant, however, does not present a facial challenge to the constitutionality of the statute. Rather, it contends that the ASA is unconstitutional "as applied" to the circumstances of this case and specifically in regard

"to employers such as the Defendant, which, as alleged in the Complaint, did not know and did not have reason to know of an employee's propensity to commit a sexual offense and who disciplined said employee upon learning of that employee's sexual offense and where no further acts of sexual aggression are alleged to have been committed by that employee" (def mem at 15-16).

Framed this way, this is nothing more than a challenge to the sufficiency of the complaint's allegations on their merits, which is addressed below. To the extent it raises a due process challenge to the ASA based on its fairness to this particular defendant, courts have rejected such arguments when presented against a claim revival statute, on the ground that the Legislature may reasonably choose to impose an across-the-board rule reviving untimely claims as to all defendants, without regard to its fairness in individual circumstances (see{**83 Misc 3d at 1089} Hymowitz v Eli Lilly & Co., 73 NY2d 487, 515 [1989]). As the Court of Appeals put it, even if the circumstances of a particular claim might not implicate the reasons for a revival statute, "the Legislature properly determined that it would be more fair for all plaintiffs to uniformly now have one year to bring their actions, rather than for the courts to begin drawing arbitrary lines transecting this area's shades of gray" (id.). On this basis, courts have rejected such "as applied" challenges to the ASA and CVA (see Matarazzo, 218 AD3d at 944-945 [rejecting as applied challenge to the CVA, since the Legislature had "specifically considered" the problems facing defendants in litigating claims many years after the events at issue as they "relate( ) to all parties," and had reasonably [*6]determined the revival statute to be necessary despite those issues]; Carroll, 650 F Supp 3d at 223-224 [rejecting as applied challenge to ASA, citing Hymowitz]; Monahan v Toback, 2023 WL 2895178, *4, 2023 NY Misc LEXIS 27127, *8-11 [Sup Ct, NY County, Apr. 11, 2023, No. 952007/2022] [rejecting "as applied" constitutional challenge to ASA]). Indeed, if defendant's argument were correct, it would require the courts to adjudicate the fairness of the revival statute in every case, determining in each instance, under some undefined standard, whether to allow the claim to proceed. The governing case law does not require courts to adopt such a case-by-case analysis when the Legislature has not provided for such an approach. Thus, there is no basis to the Department's constitutional challenge.

II. Application of the ASA to the Facts of This Case

As noted supra, defendant argues that the ASA has no application to the causes of action at issue here, and even if applicable, they argue that it shields only one allegation in the complaint from dismissal as untimely—J.S.M.'s allegation of a sexual assault against her by Kelly (see def mem at 17).

The first of these arguments misreads the statute. The ASA applies to allegations of "intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense" (CPLR 214-j [emphasis added]). The focus is thus on the conduct which caused injury, not on the nature of the legal theory under which the cause of action was brought. Nothing in the statute requires that the cause of action include a sexual offense as a necessary element, so long as a sexual offense is the conduct that caused injury in this case. Thus, courts have allowed causes of action under the Human Rights{**83 Misc 3d at 1090} Law to go forward under both the ASA and CVA (see Doe v New York City Dept. of Educ., 669 F Supp 3d 160, 165 [ED NY, Jan. 12, 2024]^[FN3] ["the plain language of the CVA embraces these civil claims" brought under the Human Rights Law, as it "revives 'every civil claim or cause of action,' language that definitively encompasses the NYSHRL"]; Segal v New York Military Academy, 2023 WL 5211220, *6, 2023 US Dist LEXIS 143755, *13-15 [SD NY, Aug. 14, 2023, 21 CV 6872 (VB)] [denying motion to dismiss state law discrimination claims on ground that they are not covered by the CVA]; see also Wilkie v Village of Hempstead, 2023 WL 5952056, *7, 2023 US Dist LEXIS 106682, *17 [ED NY, June 20, 2023, 22-CV-00920 (JMA) (JMW)] [rejecting argument that "since the ASA only covers conduct that constitutes a sexual offense as defined in N.Y. Penal L. § 130, false imprisonment and false arrest, which are not such offenses, cannot be asserted under the ASA"]). Indeed, the reference in the statute to "negligent" acts shows that the ambit of the ASA was intended to be broader than merely allowing suits for the sexual offenses themselves; rather, as stated in the Senate Introducer's Memorandum in Support, the law was intended to provide for redress against both an abuse and the "abuser's enablers" (Senate Introducer's Mem in Support of 2021 NY Senate Bill S66-A, enacted as L 2022, ch 203). That clearly contemplates that the act will apply to a broader set of causes of action than the assault itself, including negligent supervision and hostile work environment, provided the ultimate injury was the result of a sexual offense.

Defendant's second argument—that if the ASA applies, only the alleged 2011 sexual assault falls under its rubric—is correct with one exception. There is a second act which, at this early point in the litigation and drawing all inferences in plaintiff's favor, may also be actionable under the ASA: the allegation that in 2010 foreman Sherry "pushed into [J.S.M.] with his body" and [*7]then "cornered [her] and kissed the back of her neck," at which point plaintiff yelled at him to stop (see complaint ¶ 44). This is sufficient to allege a claim of forcible touching under Penal Law § 130.52, which would be covered by the ASA. Section 130.52 renders guilty a person who "intentionally, and for no legitimate purpose . . . forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying{**83 Misc 3d at 1091} the actor's sexual desire." (Penal Law § 130.52 [1].) Although a strict reading of the statute might not seem to apply to the conduct at issue, New York law sets a "low threshold for the forcible component" such that "any bodily contact involving the application of some level of pressure . . . qualifies" if done with the "relevant mens rea" (see People v Guaman, 22 NY3d 678, 684 [2014]), and New York courts have found that an individual's neck and feet may constitute intimate parts under section 130.52 (see Morrison v Scotia Capital [USA] Inc., 2023 WL 8307930, *3, 2023 US Dist LEXIS 214277, *6-9 [SD NY, Dec. 1, 2023, 21-CV-1859 (SHS)] [collecting cases; finding that allegations that coworker caressed plaintiff's foot and hugged her from behind were sufficient to allege forcible touching at the pleading stage, so that the claim fell under the ASA]; see also People v Sene, 66 AD3d 427, 427 [1st Dept 2009] [upholding conviction under section 130.52 "premised on nonconsensual contact between defendant's mouth and the victim's neck"]).

Plaintiff does not argue that any of the other acts alleged fall under article 130 of the Penal Law. Rather, she contends that the other events set forth in the complaint "illustrate the extent to which Plaintiff endured an abusive environment before, during, and after the 2011 sex assault"^[FN4] (see pl mem at 13-14). I will address these arguments below after considering the other challenges to the claim presented by defendant.

III. Employer's Knowledge

To prove a sexual harassment claim based on hostile work environment, an employee must show her workplace was "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" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004] [internal quotation marks and citation omitted]). In some circumstances "a few extraordinarily severe instances of sexual harassment can establish a hostile and abusive work environment" (Pawson v Ross, 137 AD3d 1536, 1539 [3d Dept 2016])—and even a single incident of sexual assault may meet this standard, if it is "extraordinarily severe" (see San Juan v Leach, 278 AD2d 299, 300 [2d Dept 2000]).{**83 Misc 3d at 1092} Moreover, a claim of "hostile work environment" does not require any demonstration of a link between the conduct and any adverse employment decision (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 50-51 [4th Dept 1996], lv denied 89 NY2d 809 [1997]).

Plaintiff's allegations of two incidents of forcible sexual contact—one quite severe—would appear sufficient to survive a motion to dismiss for failure to state a claim. DGS argues, however, that no viable cause of action has been pleaded here, in the absence of any allegation that [*8]the incidents at issue were "reported to senior management" or otherwise brought to the attention of defendant, and because it does not "include any facts whereby it could be concluded that the Defendant should have been aware" of such (def mem at 9-11). Moreover, there is no allegation that "the employees alleged to have engaged in the misconduct were upper-level supervisors" (id. at 11-12).

For these arguments, defendant relies on the Third Department's decision in Reynolds v State of New York (180 AD3d 1116 [3d Dept 2020]), and in particular the following language: "If 'the [plaintiff] is harassed by a low-level supervisor or a coemployee, the [plaintiff] is required to establish only that the upper-level supervisors had knowledge of the conduct and ignored it; if so, the harassment will be imputed to the corporate employer and will result in [the] imposition of direct liability' " (id. at 1118, quoting Vitale v Rosina Food Prods., 283 AD2d 141, 143 [4th Dept 2001]). Defendant argues that nothing in the complaint indicates that foreman Sherry, alleged to have "cornered" and kissed plaintiff in the bathroom, was more than a low-level supervisor (def mem at 11). As to Kelly, alleged to have sexually assaulted J.S.M. in 2011, DGS states that while he is identified as "Chief of the City," there is no such title at DGS (id. at 12; aff in supp ¶ 31). Moreover, it argues that given the allegations in the complaint that Kelly was disciplined by being made a street sweeper and "lacked the authority to punish the plaintiff for time theft" himself, it "cannot be concluded . . . that [he] was the kind of upper-level supervisor whose awareness of or contribution to a hostile work environment may be imputed to the Defendant" (def mem at 12, citing aff in supp ¶ 31). Finally, defendant maintains that these incidents are not alleged to have been brought to the attention of any senior officials (id. at 11-12).

The language Reynolds cites from Vitale comes from the Fourth Department's decision in the Matter of Father Belle{**83 Misc 3d at 1093} Community Ctr. case, which explained at length the threshold for holding an employer liable for sexual harassment by an employee. Prior to that decision, the Court of Appeals had held that an "employer cannot be found to have violated the [human rights] statute solely because of an employee's discriminatory act; in order to hold the employer responsible the agency must demonstrate that the employer approved of, or acquiesced in, the employee's conduct" (see Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 304 [1985]). Thus, the Fourth Department noted that under state law "there [must] be some basis for imputing the employee's conduct to the employer; neither imposes liability on the employer based solely on the employment relationship" (221 AD2d at 51). The complainant must demonstrate that the employer acquiesced in the discriminatory conduct or subsequently condoned it^[FN5] (id. at 53). An employer may be deemed to have condoned an offense when there has been "knowing, after-the-fact forgiveness or acceptance of [the] offense," which may be reflected by "[a]n employer's calculated inaction in response to discriminatory conduct" (id.). On the other hand, condonation "may be disproved by a showing that the employer reasonably investigated a complaint of discriminatory conduct and took corrective action" (id. at 53-54).

The Fourth Department considered how to apply these rules when the individual carrying out the harassment is also a supervisor. It found that the employer "may be held directly liable for acts of discrimination perpetrated by a high-level managerial employee" (id. at 54). In such an instance, there is no need for the employee to report the conduct, which may be imputed to the employer (id.). If, on the other hand, the harasser is a "low-level supervisor," then "the complainant is required to establish only that upper-level supervisors had knowledge of the conduct and ignored it" (id.).

The other Appellate Divisions have adopted the Fourth Department's view that conduct by a high-level supervisor may without more be sufficient to show the employer's condonation, while the actions of a low-level supervisor will not suffice{**83 Misc 3d at 1094} without evidence of notice and acceptance^[FN6] (see Franco v Hyatt Corp., 189 AD3d 569, 570 [1st Dept 2020] ["Proof of condonation and acquiescence is not necessary where discriminatory conduct is perpetrated by a high-level managerial employee or someone sufficiently elevated in the employer's business organization to be viewed as its proxy"]; Ellis v Child Dev. Support Corp., 5 AD3d 430, 431-432 [2d Dept 2004] [granting defendant summary judgment on sexual harassment claim; alleged harasser "was not a high-level managerial employee whose conduct could be imputed to the appellant"]; Pascal v Amscan, Inc., 290 AD2d 426, 426 [2d Dept 2002] [summary judgment properly granted for defendant on sexual harassment claim; "the alleged perpetrator of the harassment was not of such a high rank in the company as to invoke the rule of imputed liability for his actions"]).

Applying the standards set forth in Reynolds and Father Belle to the two instances identified above as falling within the ASA, I find that they may not be dismissed at this early stage as insufficiently pleaded.

Defendant asserts that the claims fall short because the individuals at issue are not identified as high-level supervisors, and "[i]n no case does the Plaintiff allege that the misconduct continued after it was brought to the Defendant's attention" (def mem at 9). The complaint identifies Sherry as the "Foreman of Fleet Management" and as a "Supervisor," and states that he "had actual or apparent authority to alter the terms, conditions, and privileges of Plaintiff's employment" (complaint ¶¶ 41, 54, 84). The information regarding Kelly's role is similarly limited and vague, although it too alludes to him being vested with supervisory authority. He is identified as "Chief of the City" (without specificity as to his responsibilities), who also possessed "actual or apparent authority" over the terms of J.S.M.'s employment (id. ¶ 85). While defendant asserts that {**83 Misc 3d at 1095}there is no such position, it does so in the affirmation of counsel and in its legal memorandum; no admissible evidence or documents are submitted to this effect[*10](see def mem at 19; aff in supp ¶ 31).

Given that I am asked at this stage only to evaluate the sufficiency of the causes of action pleaded in the complaint, which I must take as true and draw all reasonable inferences therefrom, I cannot say that the above-cited allegations demonstrate as a matter of law that they were not sufficiently high-level such that their actions could not be attributed to DGS (see Poolt v Brooks, 38 Misc 3d 1216[A], 2013 NY Slip Op 50116[U], *8 [Sup Ct, NY County, Jan. 18, 2013] ["it has yet to be determined if (alleged harasser) was plaintiff's supervisor, a low-level supervisor, or any kind of supervisor at all, but under the applicable standards, for purposes of defendants' summary judgment motion the court must consider (alleged harasser) to have been plaintiff's supervisor"]). Accordingly, I find that defendant has not shown it is entitled to dismissal of the complaint on this ground.^[FN7]

IV. Negligent Hiring and Supervision

Defendant also seeks dismissal of plaintiff's second cause of action for negligent hiring and supervision, on the ground that the complaint "fails to sufficiently allege foreknowledge of the wrongdoers' tortious propensities" (def mem at 12).

To plead causes of action for negligent hiring and retention, plaintiff must "sufficiently plead that the district knew or should have known of [the relevant employee's] propensity for the type of conduct at issue" (Doe v Hauppauge Union Free Sch. Dist., 213 AD3d 809, 810-811 [2d Dept 2023]; see also Fuller v Family Servs. of Westchester, Inc., 209 AD3d 983, 984 [2d Dept 2022] [dismissing negligent hiring/retention claim where "complaint failed to . . . sufficiently allege that (the {**83 Misc 3d at 1096}employer) knew, or should have known, of a propensity on the part of the youth mentor to commit the alleged wrongful acts"]). Such a cause of action "need not be pleaded with specificity," but the complaint must contain more than "bare legal conclusions" as to the individual's "propensity for improper conduct that [are] . . . unsupported by the alleged facts" (Doe, 213 AD3d at 811).

No allegations are made as to any knowledge by defendant of Sherry's propensity for sexual misconduct prior to his alleged forcible touching and kissing of plaintiff, and thus any negligent hiring or supervision claim as to him must be dismissed. As to Kelly, J.S.M. alleges the following relating to defendant's purported knowledge of his propensities:

• "Based upon what the City of Albany knew or should have known about City Chief Tom Kelly's dangerous propensities towards Plaintiff, the City of Albany had a duty to control City Chief Tom Kelly's conduct during all times that he was acting, or otherwise empowered to act, as an employee of the City of Albany, including but not limited to controlling City Chief Tom Kelly's actions relating to female employees of the City of Albany by virtue of his position" (complaint ¶ 101).

• The City of Albany was required "to act with reasonable care in its retention of City Chief Tom Kelly based upon what City of Albany knew or should have known about City Chief Tom Kelly's dangerous propensities towards women" (id. ¶ 103).

• "Given actual and/or constructive knowledge of City Chief Tom Kelly's propensity to target women, the sexual assault of Plaintiff was reasonably foreseeable to City of Albany" (id. ¶ 105).

• Kelly was provided by the City "with unfettered access to Plaintiff. Despite knowing that women who encountered City Chief Tom Kelly by virtue of his position as a senior official in the City of Albany, were in the zone of foreseeable risk for sexual misconduct by City Chief Tom Kelly" (id. ¶ 106).

• The City "created an environment which fostered sexual harassment and sexual abuse of female staffers" (id. ¶ 107).

{**83 Misc 3d at 1097}Courts have not been entirely consistent as to what allegations of prior notice are sufficient to set forth a negligent hiring/retention claim, and whether such conclusory "known or should have known" language will suffice (compare Doe, 213 AD3d at 811 [complaint that contained "little more than bare legal conclusions as to (employee's) propensity for improper conduct that were entirely unsupported by the alleged facts" (internal quotation marks omitted) was insufficient to state claim for negligent hiring/retention], and Herskovitz v Equinox Holdings, Inc., 2013 NY Slip Op 31193[U], *15 [Sup Ct, NY County, June 3, 2013] ["conclusory allegations" that defendant "knew or should have known of (the employee's) propensity to commit injury" insufficient to state a negligent hiring claim], with Wagner v State of New York, 214 AD3d 930, 930, 932 [2d Dept 2023] [allegation that defendant "became aware, or should have become aware" of employee's "propensity to commit sexual abuse" was sufficient to plead this element of a negligence claim, so as to meet higher pleading standard under Court of Claims Act § 11 (b)], and Belcastro v Roman Catholic Diocese of Brooklyn, N.Y., 213 AD3d 800, 802 [2d Dept 2023] [negligent hiring/supervision claim adequately alleged when complaint stated that defendants knew employees were abusing plaintiff or "had the propensity to abuse"]). But the Third Department has now squarely addressed this question of whether such conclusory language is sufficient to allege the requisite knowledge of an employee's propensity, and answered it in the negative. In Easterbrooks v Schenectady County (218 AD3d 969 [3d Dept 2023]) the Court considered a CVA case alleging negligent hiring and retention against Warren County in regard to a foster father who was alleged to have abused plaintiff. The complaint asserted that defendants "knew or, in the exercise of reasonable care, should have known" that the father "had the propensity to engage in sexual abuse of children" (id. at 972). The Court found that the "complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm" (id.). As a result, it found the negligent hiring and retention claim should have been [*12]dismissed as to Warren County. In regard to other counties, where plaintiff alleged "that [plaintiff] reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition," the complaint was allowed to go forward (id.).

The boilerplate language found insufficient in Easterbrooks is virtually identical to what was alleged here. The only allegation{**83 Misc 3d at 1098} in the complaint that DGS was aware of any propensity by Kelly towards abuse is that the DGS "knew or should have known" of such propensity for unspecified reasons. No other language in the pleading salvages this cause of action. The allegation that the City "created an environment" in which sexual harassment was fostered does not support a negligent hiring or retention claim. And the allegation that DGS continued to employ Kelly after J.S.M. complained about his conduct does not provide a basis for such a claim whose timeliness is preserved by the ASA, since no actions falling under that statute are alleged to have occurred subsequent to any complaint by J.S.M. (see 106 N. Broadway, LLC v Lawrence, 189 AD3d 733, 736, 737 [2d Dept 2020] [allegation of complaint by employee insufficient to support negligent hiring/retention cause of action, because the complaint "fails to allege that Levy continued to engage, during her remaining tenure with Houlihan Lawrence, in the alleged conduct after the plaintiff complained"]).

For these reasons, I find that plaintiff failed to sufficiently plead her negligent hiring and retention cause of action, and defendant's motion to dismiss is granted as to this claim.

V. Striking Material under CPLR 3024 (b)

CPLR 3024 (b) permits a court "to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Defendant argues that to the extent this case is not dismissed on the grounds set forth above, all allegations besides the 2012 alleged assault should be struck under this provision.

Under section 3024 (b), the court may strike allegations that are not relevant to plaintiff's causes of action, "but . . . could serve to prejudice respondent" (see Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 81 AD3d 145, 148 [3d Dept 2011] [striking historical account of abuse in New York State facilities, as irrelevant to application to access various current clinical records in those places], affd as mod on other grounds 19 NY3d 106 [2012]).

Defendant argues that all of the allegations except those in regard to Kelly's alleged sexual assault should be struck under this provision. Plaintiff, for her part, contends that because the events detailed in the complaint are part of the same "series of transactions and occurrences," none of it should be struck (see pl mem at 13). The answer lies somewhere in between.

Plaintiff's assertion ignores the fact that the complaint as a whole would be untimely were it not for the ASA. The fact that{**83 Misc 3d at 1099} some of the allegations are now potentially timely does not mean that everything alleged in the complaint therefore evades the limitations bar by virtue of sharing a pleading with these revived claims. Rather, the question is whether, under the laws of sexual harassment, the other acts described are sufficiently related to the now-potentially timely allegations that they may remain a part of the complaint even though the limitations period would have passed for them standing alone.

There are instances when courts have allowed conduct barred by the statute of limitations to be considered in assessing the merits of timely claims asserted by plaintiff. For example, in Long v Aerotek, Inc. (202 AD3d 1216 [3d Dept 2022]), the Court found that conduct beyond the [*13]statute of limitations by the alleged primary creator of a hostile work environment, which included threats to impede plaintiff's career if she did not give in to his sexual advances, were "relevant to events during the [subsequent] period" and thus such earlier conduct "may be considered on what is indisputably a timely hostile work environment claim" (id. at 1218-1219; see also Fitzgerald v Henderson, 251 F3d 345, 365 [2d Cir 2001] [while dismissing what court termed "Phase I" of harassment allegations as untimely, that did not make it irrelevant to events that fall within the limitations period]).

As the Second Circuit has noted in this regard: "A statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period." (Fitzgerald, 251 F3d at 365.) It also said, however, that it would have been "skeptical as to the relevance of [the earlier] evidence if there were a significant hiatus" between the time-barred and the timely phase of harassment, although it had "no serious doubts as to its relevance where there is evidence of a swift transition from entreaty [in the first phase] to retribution [in the second]" (id.).

Further, under the law of sexual harassment, particular acts occurring outside the limitations period may be considered timely under the "continuing violation" doctrine; that applies "where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" (Matter of Lozada v Elmont Hook & Ladder Co. No. 1, 151 AD3d 860, 861-862 [2d Dept 2017]). To demonstrate such a{**83 Misc 3d at 1100} continuing violation, plaintiff must show "discriminatory conduct within the limitations period sufficiently similar to the conduct without the limitations period to justify the conclusion that both were part of a single discriminatory practice" (Clark v State of New York, 302 AD2d 942, 944, 945 [4th Dept 2003]).

Applying these principles to this case, the kind of connection at issue in Long and Fitzgerald simply does not exist here between the events of 2008 and prior, and those that succeeded them to establish that the former are relevant to the latter—much less that they allege a "continuing violation." The 2000 allegations involve a physical assault with no alleged sexual component, and while the details alleged for the 2004-2008 period certainly set forth claims of sexual harassment, they involve a different set of individuals, at a different work location than the later claims. The only connection between the pre-2009 and subsequent violations is that they involve allegations of sexual harassment against the same employer. But as both Fitzgerald and Lozada make clear, that is not enough to establish either that the time-barred claims are relevant, or that they are part of a continuing violation (see Matter of Mario v New York State Div. of Human Rights, 200 AD3d 1591, 1592 [4th Dept 2021] ["petitioner failed to establish that the alleged acts occurring before and during the limitations period were not separate and unrelated incidents," and thus continuing violation doctrine did not apply]).

Given the above rulings, however, the allegations against Sherry and Kelly remain part of the sexual harassment claim. Moreover, as to these allegations, I do not agree with defendant's contention that only the assault itself remains relevant (see def mem at 17). As Fitzgerald notes, conduct may be relevant even if it is not part of the claim. All of the allegations involving the conduct of these two individuals are sufficiently related to the revived assault allegations to pass [*14]the relevance threshold, and thus there is no basis to strike them from the complaint.^[FN8]

{**83 Misc 3d at 1101}As a result, defendant's motion to strike is granted to the extent that paragraphs 16 to 40 are stricken from the complaint, and is otherwise denied.

Accordingly, it is hereby ordered that defendant's motion is granted to the extent that plaintiff's second cause of action for negligent hiring and retention is dismissed, and paragraphs 16 through 40 (inclusive) of the complaint are stricken pursuant to CPLR 3024 (b), but is otherwise denied.

"every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law," albeit only as to those who were under 18 at the time the offense occurred (CPLR 214-g).

Therefore, that law is relevant and persuasive to the ASA issues before me.