| Barbato v Bowden |
| 2009 NY Slip Op 04507 [63 AD3d 1580] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Margaret J. Barbato, Respondent, v Brent D. Bowden,Appellant. |
—[*1] O'Hara, O'Connell & Ciotoli, Fayetteville (Stephen Ciotoli of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.),entered December 7, 2007 in an action for, inter alia, negligence. The order, insofar as appealedfrom, denied the motion of defendant to dismiss the first, second, fifth, and eighth causes ofaction.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting those parts of the motion to dismiss the first, second, and fifth causes of action anddismissing those causes of action and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages arising from defendant'salleged "concerted campaign to harass, sexually harass, and intimidate her." According toplaintiff, the alleged conduct occurred at the elementary school where she was employed as ateacher and defendant was employed as the principal. Although defendant moved to dismiss thecomplaint, he now raises a new ground in support of his motion with respect to the first andsecond causes of action, for negligence, contending that they are barred by the exclusive remedyprovisions of the Workers' Compensation Law. Although that contention is therefore notpreserved for our review (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]),we nevertheless address it inasmuch as " 'the issue [raised therein] is one of law appearing on theface of the record that [plaintiff] could not have countered if it had been raised in the court offirst instance' " (Hoke v Hoke, 27AD3d 1055, 1055 [2006]). We agree with defendant that those causes of action are indeedbarred, inasmuch as "workers' compensation is intended to be the exclusive remedy forwork-related injuries" (Burlew v American Mut. Ins. Co., 63 NY2d 412, 416 [1984];see Workers' Compensation Law § 29 [6]; Monteiro v State of New York, 27 AD3d 1133 [2006]). Wetherefore modify the order accordingly.
We further agree with defendant that Supreme Court erred in denying that part of his motionto dismiss the fifth cause of action, alleging a violation of the Human Rights Law (ExecutiveLaw art 15), and we therefore further modify the order accordingly. Pursuant to Executive Law§ 296 (1) (a), "an employer" is prohibited from discriminating against any individual onthe ground of gender "in terms, conditions or privileges of employment." In a case involving aschool district, a plaintiff alleging the violation of the Human Rights Law is required to file anotice of claim against the school district pursuant to Education Law § 3813 (2). Thus,even assuming, arguendo, that defendant is liable under that statute as an employer because hehad the "power to do more than [*2]carry out personnel decisionsmade by others" and was acting within the scope of his employment (Patrowich v ChemicalBank, 63 NY2d 541, 542 [1984]; see also Layaou v Xerox Corp., 298 AD2d 921,922 [2002]), we conclude that the fifth cause of action must be dismissed on the ground thatplaintiff failed to file the requisite notice of claim against the Central Square Central SchoolDistrict.
We reject plaintiff's contention that defendant is bound by an alleged stipulation made by hisformer attorney that the sexual comments were not within the scope of defendant's employment.That stipulation does not appear in the record and thus does not bind defendant. "[T]here [canbe] no open court settlement agreement within the meaning of CPLR 2104 where the purportedagreement was never transcribed or entered into any court record" (Matter of Janis, 210AD2d 101, 101 [1994]). We further agree with defendant that he cannot be held liable for aidingand abetting a violation of the Human Rights Law "[w]here[, as here,] no violation of the HumanRights Law by another party has been established" (Strauss v New York State Dept. of Educ., 26 AD3d 67, 73[2005]; see Executive Law § 296 [6]).
Finally, we reject the contention of defendant that the court erred in denying that part of hismotion to dismiss the claim for a violation of 42 USC § 1983 based on, inter alia, a hostilework environment (see generally DiPalma v Phelan, 81 NY2d 754, 756 [1992]).Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.