Employment Relationships - Respondeat Superior - Vicarious Liability - Allegations of Sexual Misconduct by Employee

Workers' Compensation - Exclusiveness of Remedy - Negligent Infliction of Emotional Distress

Corporations - Liability of Successor Corporation - Sufficiency of Pleading

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about January 17, 2025, which, to the extent appealed from, denied the motion of defendants, Warner Music Group Corp. and Atlantic Recording Corporation to dismiss the first, second, third, and fourth causes of action in the complaint, except to the extent that those causes of action were brought under Penal Law § 20.20, the fifth cause of action to the extent it alleged civil conspiracy, and the sixth, seventh, and ninth causes of action, unanimously modified, on the law, the fifth cause of action dismissed, with prejudice, and the remaining causes of action dismissed, without prejudice and with leave to plaintiff to replead, and otherwise affirmed, without costs.

Plaintiff's intentional tort causes of action should have been dismissed because neither Warner nor Atlantic can be held responsible, under a theory of respondeat superior, for the intentional conduct of Atlantic's employees—allegedly serious acts of sexual misconduct—which were not in any way related to the advancement of Atlantic's business, authorized by it, or performed within the scope of the employees' duties (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; Taylor v United Parcel Serv., Inc., 72 AD3d 573, 573 [1st Dept 2010], lv denied 15 NY3d 705 [2010]; Bowman v State of New York, 10 AD3d 315, 316-317 [1st Dept 2004]). However, dismissal is without prejudice and plaintiff is granted leave to replead (see Espaillat v Breli Originals, 227 AD2d 266, 267 [1st Dept 1996]).

Plaintiff's claims for negligent infliction of emotional distress and negligence should also have been dismissed as barred by the exclusive remedy provisions of the Worker's Compensation Law because there is no allegation that the intentional acts of Warner and Atlantic's employees that gave rise to those claims was directed by those defendants (see Martinez v Canteen Vending Servs. Roux Fine Dining Chartwheel, 18 AD3d 274, 275 [1st Dept 2005]). Again, however, dismissal is without prejudice to plaintiff repleading these causes of action (see Serdans v New York & Presbyt. Hosp., 112 AD3d 449, 451 [1st Dept 2013]).

Plaintiff's claim for civil conspiracy should have been dismissed with prejudice because an independent cause of action for conspiracy is not recognized in New York (see Abacus Fed. Sav. Bank v Lim, 75 AD3d 472, 474 [1st Dept 2010]).

Finally, on this preanswer motion to dismiss, Warner has not shown, as a matter of law, that it is immune from liability despite being Atlantic's successor. It is true that a corporation that acquires the asserts of another corporation is generally not liable for its predecessor's torts (see Schumacher v Richards Shear Co., 59 NY2d 239, 244 [1983]). However, several exceptions to this general rule exist (id. at 245), and the pleading in this case is sufficient despite plaintiff not having specifically identified one or more of them. To the extent that, in moving for dismissal, Warner relied on documentary evidence that it did not exist when the misconduct alleged in the complaint took place, such documentation did not sufficiently rebut plaintiff's allegation that it did have successor liability. Other documents referred to by Warner on this appeal are not in the record before us. Concur—Kennedy, J.P., Scarpulla, Gesmer, Mendez, Hagler, JJ.