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On 19 August 2008, five plaintiffs, plaintiffs-one, jointly filed an action against defendants

On 19 August 2008, five plaintiffs, plaintiffs-one, jointly filed an action against defendants in Kings County. On 8 September 2008, the defendants joined issue by filing their answer. On 20 August 2008, plaintiff-two filed her own separate action against defendants in Nassau County. On 4 September 2008, the defendants joined issue by filing their verified answer. On 21 April 2009, the two actions were consolidated for joint trial in the Supreme Court of Kings County.
Under the first action, there are 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 the sex crime of sexual harassment by the creation of a hostile work environment; the second for constructive discharge; and the third for intentional infliction of emotional distress. All plaintiffs in the first action sought summary judgment on liability on the entire complaint. Allegedly, with the exception of one plaintiff, each plaintiff worked at defendant-two up until 13 June 2008, when they discovered that defendant-one had installed and used a hidden camera in the only working restroom.

Under the second action, there are 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; the second for intentional discrimination and constructive discharge; the third for violation of the right to privacy; the fourth for intentional infliction of emotional distress; and the fifth for prima facie tort. Plaintiff sought summary judgment on liability on the first, second and fourth causes of action. Allegedly, sometime in December of 2007, plaintiff began working as a medical office clerk at defendant-two’s cardiology practice; sometime in June of 2008, defendant-one 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; plaintiff used this bathroom at least twice a day; and, on 13 June 2008, upon discovering the unlawful surveillance equipment and the placement of the monitor in defendant-two’s office, plaintiff resigned.

On 10 February 2011, all plaintiffs in the consolidated actions moved jointly pursuant to CPLR 3212 for a summary judgment on liability against defendant-one, a doctor, and defendant-two, the company the doctor worked for. 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 or NYSHRL, and for intentional infliction of emotional distress, plaintiffs also sought for an order restoring plaintiffs-one’s complaint to the active trial calendar. The defendants jointly opposed that part of plaintiffs’ joint motion which sought summary judgment on liability, but they do not oppose restoring the first action to the active trial calendar.

Under the rules, a summary judgment may be granted only when it is clear that no triable issue of fact exists. 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. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers.

Under Executive Law § 296(1)(a), it is an unlawful discriminatory practice for an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. 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. In order to state a claim for hostile work environment on 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. 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. 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. 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. 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. However, employers are presumed absolutely liable for a hostile work environment created by its supervisors. 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. It is an affirmative defense of the employer that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Under Penal § 250.45(3)(a), a person is guilty of unlawful surveillance in the second degree when, for no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent.

On the motion for summary judgment in the first action:

Under CPLR 3212 (b), a motion for summary judgment must 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.

Here, while the defendants did admit in their answer to the complaint that plaintiffs-one worked for them, there was no allegation of fact by anyone with personal knowledge indicating that any of plaintiffs-one were employees of defendant-two at the time the hidden camera was installed; and there was no allegation of facts by anyone with personal knowledge that any of plaintiffs-one suffered any embarrassment or mental anguish as a result of discovering the hidden camera or that any of them resigned upon discovery of same. Clearly, plaintiffs-one have not provided the court with an affidavit or sworn testimony by anyone with personal knowledge to any fact alleged in their unverified complaint. Moreover, plaintiff-two’s verified complaint does not mention any fact regarding any plaintiff in the first complaint; and the felony complaint, certificate of disposition and sentencing minutes also make no reference to any plaintiff in the first complaint. In other words, there was not one allegation of fact or supporting document that satisfies plaintiffs-one’s burden to show prima facie entitlement to summary judgment on liability.

On the motion for summary judgment in the second action:

Plaintiff-two’s first cause of action is for sexual harassment in violation of Executive Law § 296(1)(a) through the creation a hostile work environment.

Plaintiff-two personally verified her complaint, and pursuant to CPLR 105(u), it may be used as an affidavit. The allegations of fact in plaintiff-two’s complaint were corroborated in part by the annexed exhibits: the district court felony complaint which contained a sworn statement by a Nassau County Detective; the certificate of disposition of indictment which proved that defendant-one was convicted of the sex crime of unlawful surveillance in the second degree, a class E felony, in violation of New York Penal Law § 250.45(3)(a) and was sentenced to 45 days imprisonment and 5 years of probation; the transcripts of defendant-one’s sentencing proceeding his criminal conviction, among others.

According to the Nassau County Detective in his sworn statement, defendant-one admitted that he placed a camera inside of a restroom located in his office; the restroom was readily available to office staff and business clients; and the camera was concealed in an air purifier that he placed in the restroom and transmitted visual images wirelessly to a separate device.
Here, plaintiff-two’s allegations and supporting documentation satisfies her claim of sexual harassment by creating a hostile work environment. Evidently, plaintiff-two is a female and a member of a class of persons protected by Executive Law 296; defendant-one’s conduct of concealing a camera within an air purifier and informing plaintiff that said device is an air purifier, evidences that defendant-one’s conduct was covert and unwelcome; plaintiff-two’s reaction of being overcome with great personal distress, humiliation, embarrassment and mental anguish support her claim that the conduct was unwelcome; plaintiff-two’s work was also affected as evidenced by her reaction, and the fact that she immediately ended her employment with defendants; and defendant-one was found liable for such conduct as supported by the felony complaint, certificate of disposition and sentencing transcript, in addition to defendant-one’s own admission. Indubitably, a reasonable person would find the act of surreptitiously observing an individual’s private bathroom function to be an abusive act. Plaintiff-two’s reaction after discovery of the unlawful surveillance clearly demonstrated that she subjectively perceived the environment to be hostile. Thus, plaintiff-two has indeed made a prima facie showing that defendant-one violated Executive Law §296(1)(a) by his acts which created a hostile work environment.

Plaintiff-two’s second cause of action is for intentional discrimination and constructive termination. In order to make out a prima facie showing that defendants committed this tort, plaintiff must demonstrate that she is a member of a protected class; she was constructively discharged; she was qualified to hold the position from which she was terminated; and the discharge occurred under circumstances giving rise to an inference of discrimination. To demonstrate that work conditions arose 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.

Here, defendant-one’s conduct sufficiently satisfies the elements of a claim for constructive discharge. Obviously, by installing a hidden camera in the business restroom, defendant-one deliberately made plaintiff-two’s working conditions so intolerable that a reasonable person in her position would have felt compelled to resign. Indeed, plaintiff-two resigned in disgust after discovering the hidden camera. Clearly, plaintiff-two 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).

On plaintiff-two’s fourth cause of action for intentional infliction of emotional distress, in order to make a prima facie plaintiff-two must show the existence of extreme and outrageous conduct; defendant’s intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. 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. 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.
Here, based on plaintiff-two’s sworn evidentiary allegation of fact in her complaint, her supporting documentary evidence and the standard articulated in the Sawicka case, which was decided by the Second Department in 2010, plaintiff-two has indeed made a prima facie showing of entitlement to summary judgment for intentional infliction of emotional distress. It must be noted that defendant-two is a professional corporation and the employer of all plaintiffs including plaintiff-two; the defendants by their verified answer to plaintiff-two’s complaint have admitted that defendant-one is the owner, principal and/or president of defendant-two; and, therefore, defendant-one’s acts in purchasing and installing illegal surveillance equipment are the acts of defendant-two.

All told, plaintiff-two 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. The burden now shifts to the defendants to produce evidentiary proof sufficient to establish the existence of material issues of fact.

According to the defendants, although a surveillance camera was illegally installed, there was no evidence that it was actually used. In support this contention and to resist plaintiff-two’s motion, defendants presented the transcript of defendant-one’s criminal trial.

As the rules provide, 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. Thus, defendant-one’s conviction of the sex crime of unlawful surveillance in the second degree in violation of Penal Law §250.45(3)(a) is prima facie evidence that defendant-one intentionally used or installed an imaging device to surreptitiously view people without such people’s knowledge or consent. The distinction between the act of intentionally installing a surveillance device in a restroom and 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 is 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.
Here, the defendants did not raise any other issue in their opposition papers, and did not show the existence of material issues of fact.

Accordingly, plaintiffs-one’s motion to restore the first action to the active trial calendar was granted as unopposed; plaintiffs-one’s motion for summary judgment on liability on their complaint was denied, without prejudice; and, plaintiff-two’s motion for summary judgment on liability on the first, second and fourth cause of action against defendants was granted.

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