FRANCOIS A. RIVERA, J.
By notice of motion filed on February 10, 2011, under motion sequence four, all plaintiffs in the instant consolidated actions move jointly pursuant to CPLR 3212 for summary judgment on liability against defendants Vincent M. Pacienza, M.D. (hereinafter "Pacienza") and Manhasset Cardiovascular, P.C. (hereinafter "MCPC"), on their respective claims for unlawful discriminatory practices in violation of Executive Law 296(1) [also known as the New York State Human Rights Law (hereinafter "NYSHRL")] and for intentional infliction of emotional distress. Plaintiffs also seek an order restoring Ellen Moreno, Deborah Schubert, Vanessa T. Pero, M.D., Irina Khaimova, and Karina Khaimova's complaint to the active trial calendar.
The defendants jointly oppose that part of plaintiffs' joint motion which seeks summary judgment on liability. They do not oppose restoring the Moreno action to the active trial calendar.
On August 19, 2008, Ellen Moreno, Deborah Schubert, Vanessa T. Pero, M.D., Irina Khaimova, and Karina Khaimova jointly commenced the instant action by filing a summons and complaint with the King's County Clerk's office under index number 23739/08 (hereinafter "the Moreno action"). The defendants joined issue by answer dated September 8, 2008.
On August 20, 2008, Shari Huges commenced her own separate action by filing a summons and verified complaint with the Nassau County Clerk's office under index number 11424/2009 (hereinafter "the Hughes action"). The defendants joined issue by verified answer dated September 4, 2008.
On April 21, 2009, the two complaints were consolidated for joint trial in Kings County Supreme Court.
The Moreno action alleges forty-six allegations of fact in support of three causes of action. Their first two causes of action claim violations of Executive Law 296(1): the first for sexual harassment by the creation of a hostile work environment; and the second for constructive discharge. The third cause of action is for intentional infliction of emotional distress. All plaintiffs in the Moreno action seek summary judgment on liability on the entire complaint.
With the exception of plaintiff Karina Khaimova, the Moreno complaint alleges that each plaintiff worked at MCPC up until June 13, 2008, when they discovered that Pacienza had installed and used a hidden camera in the only working restroom.
Hughes' complaint alleges thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim violations of Executive Law Section 296(1): the first for sexual harassment by the creation of a hostile work environment; and the second for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for prima facie tort. Hughes seeks summary judgment on liability on the first, second and fourth causes of action.
Hughes' complaint alleges the following salient facts. In December of 2007, she began working as a medical office clerk at MCPC's cardiology practice located at 75 Plandrome Road, Manhasset, New York. Sometime in June of 2008, Pacienza placed an air purifier containing a hidden surveillance camera in the employee bathroom of the work site positioned five feet away from and at the same height of the toilet seat. Hughes used this bathroom at least twice a day. On June 13, 2008, upon discovering the unlawful surveillance equipment and the placement of the monitor in Pacienza's office, Hughes resigned.
The plaintiffs' joint motion papers consist of an attorney's affirmation and seven annexed exhibits labeled 1 through 5, and A and B. Exhibit 1 is the Hughes summons and verified complaint. Exhibit 2 is defendants' verified answer to Hughes' verified complaint. Exhibit 3 is a district court felony criminal complaint against defendant Pacienza bearing docket number 015543. Exhibit 4 is a certificate of disposition of indictment dated January 25, 2011. Exhibit 5 is a certified transcript of the sentencing of criminal defendant Pacienza on January 21, 2011 before Honorable William C. Donnino for the crime of unlawful surveillance in the second degree, a violation of Penal Law section 250.45(3)(a). Exhibit A is the summons and complaint in the Moreno action. Exhibit B is defendants' answer in the Moreno action.
The defendants oppose the motion with an attorney's affirmation, a memorandum of law, and a certified copy of the transcripts of Pacienza's bench trial under indictment 2394N/2009 for the crime of unlawful surveillance in the second degree.
Plaintiffs have replied with a memorandum of law.
LAW & APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 N.Y.2d 72, 760 N.Y.S.2d 397 ). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463 ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324).
Executive Law § 296(1)(a) states that:
Discrimination claims brought under the NYSHRL are reviewed by New York State Courts borrowing many of the same standards that apply to federal claims brought under Title VII discrimination claims (see, Pucino v. Verizon Communications Inc., 618 F.3d 112, 117 (2d Cir. 2010), Copantitla v. Fiskardo Estiatorio, Inc., ___ F.Supp.2d ___ ___, 2011 WL 2127808 (S.D.NY 2011). "In order to state a claim for hostile work environment sexual harassment, the complaint must assert that plaintiff is a member of a protected class, that the conduct or words upon which the claim of sexual harassment is predicated were unwelcome, that the conduct or words created a hostile work environment which affected a term, condition or privilege of the employment and that the defendant is liable for such conduct (see Samide v. Roman Catholic Diocese of Brooklyn, 194 Misc.2d 561, 571-572, 754 N.Y.S.2d 164 [Queens Cty., 2003]). Under Federal and New York State Law, a plaintiff must also set forth that the alleged harassment was also sufficiently severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive (see Harris v Forklift Sys., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L. Ed. 2d 295 )." (Santos v Brookdale Hosp. Med. Ctr., 2010 NY Slip Op 51716U, 29 Misc 3d 1207A [NY Sup. Kings County, 2010]).
A hostile work environment exists when there is conduct severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive, and it must allege that the victim subjectively perceived the environment to be hostile (See Samide, 194 Misc 2d at 572). To be actionable, the alleged conduct must be both objectively and subjectively offensive, such that a reasonable person would find the behavior hostile or abusive, and such that the plaintiff herself did, in fact, perceive it to be so (San Juan v. Leach, 278 A.D.2d 299, 300, 717 N.Y.S.2d 334, 336 [2d 2000)] citing Harris v. Forklift Sys., 510 U.S.17, 21-22, 114 S.Ct. 367, 368 ).
Liability for non-supervisory employees' creation of a hostile work environment will be imputed to the employer on the plaintiff's showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action (Petrosino v. Bell Atlantic, 385 F.3d 210, 225, [2d Cir. 2004]); See also Ewers v. Columbia Heights Realty, LLC, 44 A.D.3d 608, 610, 844 N.Y.S.2d 45, 47 (2d 2007). However, employers are presumed absolutely liable for a hostile work environment created by its supervisors (Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63, 78 Fair Empl.Prac.Cas. (BNA) 531 [2d Cir. 1998]; See also San Juan v. Leach, 278 A.D.2d 299, 300, 717 N.Y.S.2d 334, 336 [2d 2000] [Defendants-employer's motion to dismiss properly denied for hostile work environment created by complainant's immediate supervisor]). Under Title VII, an employer need not have actual knowledge of the harassment; an employer is considered to have notice of sexual harassment if the employer-or any of its agents or supervisory employees, with immediate or successively higher authority over the employee, knew or should have known of the conduct (Distasio, 157 F.3d at 63; Feingold v. New York, 366 F.3d 138, 152 [2d Cir. 2004] [sufficient basis to impute liability to employer exists where it was shown that complainant's immediate supervisor and departmental supervisor were aware of conduct but took no action to remedy or disapprove of the situation]). It is an affirmative defense of the employer that (a) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (b) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise" (Petrosino, 385 F.3d at 225).
Penal § 250.45(3)(a), unlawful surveillance in the second degree provides in pertinent part as follows:
THE MORENO PLAINTIFFS' MOTION
CPLR 3212 (b) states that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.
The defendants have admitted in paragraph five of their answer to the complaint that the Moreno plaintiffs worked for them at 75 Plandome Road, Manhasset, New York. However, there is no allegation of fact by anyone with personal knowledge indicating that any of the Moreno plaintiffs were employees of MCPC at the time the hidden camera was installed. Furthermore, there is no allegation of facts by anyone with personal knowledge that any of the Moreno plaintiffs suffered any embarrassment or mental anguish as a result of discovering the hidden camera or that any of them resigned upon discovery of same. In sum, the Moreno plaintiffs have not provided the court with an affidavit or sworn testimony by anyone with personal knowledge to any fact alleged in their unverified complaint.
Hughes' verified complaint does not mention any fact regarding any plaintiff in the Moreno complaint. The felony complaint, certificate of disposition and sentencing minutes also make no reference to any plaintiff in the Moreno complaint. In sum, there is not one allegation of fact or supporting document that satisfies the Moreno plaintiffs' burden to show prima facie entitlement to summary judgment on liability.
SHARI HUGHES' MOTION
Hughes' first cause of action is for sexual harassment in violation of Executive Law § 296(1)(a) through the creation a hostile work environment. Hughes personally verified her complaint, therefore, pursuant to CPLR 105(u), it may be used as an affidavit (Triangle Props. No. 2, LLC v Narang, 73 A.D.3d 1030, 903 N.Y.S.2d 424 [2d 2010]). Hughes swore to the following facts within her complaint based on her personal knowledge. In December of 2007, she began working at MCPC. Pacienza is a licensed physician practicing as a cardiologist at MCPC and is also its president, principal and owner. In the first week of June 2008, Pacienza informed her and other employees that the staff bathroom was out of order, and directed all employees and patients to use the only other bathroom in the office. Pacienza showed Hughes what appeared to be an air purifier that he plugged in and positioned directly in front of the toilet. Hughes did not know at the time that the air purifier installed in the bathroom contained a hidden camera. Pacienza purchased the item from an online spy store. The camera was capable of transmitting images to a monitor in Pacienza's office. Hughes used this bathroom at least twice a day. On June 13, 2008, two Nassau County detectives walked into MCPC, arrested Pacienza and charged him with the felony of unlawful surveillance. After learning of Pacienza's unlawful conduct, Hughes was overcome with great personal distress, humiliation, and embarrassment which eventually required her to seek medical treatment, and which continues to cause her great mental anguish and emotional distress. She resigned on June 13, 2008 and asserts that Pacienza's conduct amounted to a constructive termination of employment.
The allegations of fact in Hughes' complaint are corroborated in part by the annexed exhibits. Exhibit 3, the district court felony complaint, contains a sworn statement by Nassau County Detective Thomas Santoro. Within the complaint Det. Santoro states under penalty of perjury: that Pacienza admitted to the following facts. Pacienza placed a camera inside of a restroom located in his office at 75 Plandome Road. The restroom was readily available to office staff and business clients. The camera was concealed in an air purifier that he placed in the restroom and transmitted visual images wirelessly to a separate device.
Exhibit 4, the certificate of disposition of indictment, proves that defendant Pacienza was convicted of the crime of unlawful surveillance in the second degree, in violation of New York Penal Law § 250.45(3)(a) and was sentenced to 45 days imprisonment and 5 years of probation. Exhibit 5 contains the transcripts of Pacienza's sentencing proceeding on this conviction. The transcripts prove that on January 21, 2011, the sentencing judge informed Pacienza that he was found guilty of unlawful surveillance in the second degree, a class E felony, and gave all parties the opportunity to be heard on sentencing. After several statements made by the prosecutor and Pacienza's defense attorney, Pacienza stated "I'm very, very sorry about the terrible mistake that I made . . ." (Sentencing Tr. ¶ 21-22, p. 12). He was then sentenced.
Hughes cites the opinion of the Appellate Division Second Department decision in the matter of Sawicka v. Catena, 79 A.D.3d 848, 912 N.Y.S.2d 666 [2d 2010], in support of her motion. Sawicka is a case with a nearly identical fact pattern to Pacienza's conduct in the instant action. The defendants in Sawicka, consisting of the principal agent and owner of a plumbing company (Catena), and the plumbing company itself (Avanti), were found liable for intentional infliction of emotional distress and constructive discharge. Defendants appealed the jury verdict, and the Appellate Division Second Department affirmed the lower court's jury verdict. In Sawicka, defendant Catena installed a video camera in the business' restroom, taping the plaintiffs' use of the restroom (Id. at 849, 667). Plaintiffs in Sawicka were female employees. Similarly, plaintiffs in Sawicka commenced an action to recover damages, among other things, for the intentional infliction of emotional distress and constructive discharge (Id.) The Court found that "the plaintiffs' claims that they were subjected to a hostile work environment, based on sex, which led to their constructive discharge, were supported by evidence that [defendant] deliberately made their working conditions so intolerable by installing a video camera in the restroom, that a reasonable person in their position would have felt compelled to resign" (Id. at 850, 668). Thus, merely installing a video camera in a restroom, unbeknownst to the people using the restroom, is prima facie proof of a hostile work environment, which results in constructive discharge.
Here, plaintiff Hughes' allegations and supporting documentation satisfies her claim of sexual harassment by creating a hostile work environment. Hughes is female and a member of a class of persons protected by Executive Law 296. Pacienza's conduct of concealing a camera within an air purifier and informing plaintiff that said device is an air purifier, evidences that defendant Pacienza's conduct was covert and unwelcome. Hughes reaction of being overcome with great personal distress, humiliation, embarrassment and mental anguish support her claim that the conduct was unwelcome. Plaintiff Hughes' work was also affected as evidenced by her reaction, and the fact that she immediately ended her employment with defendants. Lastly, defendant Pacienza was found liable for such conduct as supported by the felony complaint, certificate of disposition and sentencing transcript, in addition to Defendant Pacienza's own admission, "I'm very, very sorry about the terrible mistake I've made. . ."
A reasonable person would find the act of surreptitiously observing an individual's private bathroom function to be an abusive act. Hughes by her reaction after discovery of the unlawful surveillance has demonstrated that she subjectively perceived the environment to be hostile (See Samide, 194 Misc 2d at 572). Based on the foregoing, Hughes made a prima facie showing that defendant Pacienza violated Executive Law §296(1)(a) by his acts which created a hostile work environment.
Hughes' second cause of action is for intentional discrimination and constructive termination. To make out a prima facie showing that defendants committed this tort. plaintiff must demonstrate the following: (i) she is a member of a protected class; (ii) she was constructively discharged; (iii) she was qualified to hold the position from which she was terminated; and (iv) the discharge occurred under circumstances giving rise to an inference of discrimination (See Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 ; Balsamo v. Savin Corp., 61 A.D.3d 622 [2d 2009]). To demonstrate that work conditions rise to the level of constructive discharge an employee must show that the employee's working conditions are so intolerable that a reasonable person in the employee's position would feel compelled to resign (see Gold Coast Restaurant Corp. v. Gibson, 67 A.D.3d 798, 799, 888 N.Y.S.2d 186, 188 [2d 2009]; see also Thompson v. Lamprecht, 39 A.D.3d 846, 834 N.Y.S.2d 312 ). Pacienza's conduct sufficiently satisfies the elements of a claim for constructive discharge. By installing a hidden camera in the business restroom, Pacienza deliberately made plaintiff Hughes' working conditions so intolerable that a reasonable person in her position would have felt compelled to resign (Sawicka, 79 AD3d at 850). Furthermore, Hughes did resign in disgust after discovering the hidden camera. Hughes has made a prima facie showing of entitlement to summary judgment on the claim that defendants constructively discharged her in violation of Executive Law 296(1)(a).
In order to make a prima facie showing on the fourth cause of action for intentional infliction of emotional distress, Hughes must show (a) the existence of extreme and outrageous conduct; (b) defendants intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (c) a causal connection between the conduct and injury; and (d) severe emotional distress (Howell v. New York Post Co., 81 N.Y.2d 115, 121-122, 596 N.Y.S.2d 350 ).
"Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct but imposes liability based on after-the-fact judgments about the actor's behavior (Id. at 122)." Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (see Roach v. Stern, 252 A.D.2d 488, 491, 675 N.Y.S.2d 133 [2d 1998]). Once again, based on Hughes sworn evidentiary allegation of fact in her complaint, her supporting documentary evidence and the standard articulated in the Sawicka case, 79 A.D.3d 848, 912 N.Y.S.2d 666 (2d 2010), Hughes has made a prima facie showing of entitlement to summary judgment on the fourth cause of action for intentional infliction of emotional distress.
MCPC is a professional corporation and the employer of all plaintiffs including Hughes. The defendants by their verified answer to Hughes' complaint have admitted that Pacienza is the owner, principal and/or president of MCPC. Therefore Pacienza's acts in purchasing and installing illegal surveillance equipment are the acts of MCPC.
In sum, Hughes has made a prima facie showing of entitlement to summary judgment on liability in the first, second and fourth causes of action against both defendants. Therefore, the burden now shifts to the defendants to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d at 324).
Pacienza's conviction of the crime of unlawful surveillance in the second degree in violation of Penal Law §250.45(3)(a) is prima facie evidence that Pacienza intentionally used or installed an imaging device to surreptitiously view people without such people's knowledge or consent. A defendant's criminal conviction of a crime is conclusive proof in a civil proceeding that the defendant committed the acts constituting the essential elements of said crime by operation of the principal of collateral estoppel (see, S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938 ).
The defendants allege in their attorney's affirmation that although a surveillance camera was illegally installed, there is no evidence that it was actually used. They attach the transcript of Pacienza's criminal trial in an effort to support this contention and to resist Hughes' motion.
The distinction between the act of intentionally installing a surveillance device in a restroom or the act of intentionally using such a device that one did not install is of no legal consequences in determining whether the conduct violates Executive Law 296(1). Nor is it of any legal significance in determining whether the perpetrator is liable for causing the actual or potential victim extreme emotional distress. The outrageous and discriminatory conduct element under Executive Law 296(1) is met by either the installation or the use of such a device. Similarly, the subjective emotional distress element of the tort is satisfied by the victim's perception of the abusive act of subjecting the victim to potential covert surveillance against the person's will. Whether the victim is actually seen by the perpetrator or whether the scheme is discovered before the perpetrator or someone else has a chance to view the victim is irrelevant. The setting up of the illicit equipment or the use of same are equally outrageous and blameworthy. Either scenario satisfies the prescribed discriminatory conduct encompassed by Executive Law 296(1)(a) and the tort claim of intentional infliction of emotional distress. The defendants did not raise any other issue in their opposition papers. Therefore, the defendants did not show the existence of material issues of fact.
Plaintiffs motion to restore the Moreno action to the active trial calendar is granted as unopposed.
Ellen Moreno, Deborah Schubert, Vanessa T. Pero, M.D., Irina Khaimova, and Karina Khaimova's motion for summary judgment on liability on their complaint is denied without prejudice.
Shari Hughes motion for summary judgment on liability on the first, second and fourth cause of action against Pacienza and MCPC is granted.
The foregoing constitutes the decision and order of this court.