| Boyce v Gumley-Haft, Inc. |
| 2011 NY Slip Op 01722 [82 AD3d 491] |
| March 10, 2011 |
| Appellate Division, First Department |
| Leonard Boyce et al., Respondents, v Gumley-Haft, Inc.,Defendant, and Bernard Spitzer, Appellant. (And a Third-PartyAction.) |
—[*1] Ofodile & Associates, P.C., Brooklyn (Anthony C. Ofodile of counsel), forrespondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 3, 2008, which,to the extent appealed from, denied defendant Bernard Spitzer's motion for summary judgmentdismissing the complaint as against him, unanimously affirmed, without costs. Order, same court(Lucy Billings, J.), entered April 23, 2010, which, to the extent appealed from as limited by thebriefs, denied Spitzer's motion to set aside the jury's verdict as to liability, unanimously reversed,on the law, without costs, the motion granted and the matter remanded for a new trial.
The motion court correctly denied defendant's motion for summary judgment with respect tothe claims under both the New York City Human Rights Law and the Executive Law. The recordshows that defendant was the 50% owner of the limited liability company (LLC) that owned thesubject building. The contract between the management company (Gumley-Haft) and the LLCprovided that all employees hired by Gumley-Haft were in fact employees of the LLC owner.Defendant, as 50% owner of the limited liability company, and with the power to hire and fireemployees, was "amenable to liability [under the Executive Law] upon proof that he became aparty to [the] discriminatory termination . . . 'by encouraging, condoning, orapproving it' " (Pepler v Coyne, 33AD3d 434, 435 [2006] [citations omitted]), and the record raised a triable issue of fact withrespect to defendant's actions. Further, plaintiffs opposed the motion for summary judgment withproof that employee Senna exercised managerial or supervisory responsibility and that hediscriminated against plaintiffs. Thus, defendant could be held liable [*2]for Senna's discriminatory conduct under the New York CityHuman Rights Law (Administrative Code of City of NY § 8-107 [13] [b] [1]) providedthat he encouraged, condoned or approved Senna's alleged discriminatory conduct.
However, defendant's posttrial motion to set aside the verdict was incorrectly denied. Thetrial court committed reversible error when it permitted plaintiff Haydenn to testify that he hadoverheard the superintendent of the building commenting to the handyman that defendant"[didn't] want any niggers [working] in the building." This statement was inadmissible hearsay.
The statement does not fall within the exception to the hearsay rule for an agent's making of astatement as an activity within the scope of his authority (see Loschiavo v Port Auth. of N.Y.& N.J., 58 NY2d 1040, 1041 [1983]). Nothing in the record even suggests that thesuperintendent, who occasionally was given some direction by defendant when the latter visitedthe premises, was authorized to speak on defendant's behalf with respect to the building'semployment practices and hiring and firing of employees (see Niesig v Team I, 76 NY2d363, 374 [1990]; Silvers v State of NewYork, 68 AD3d 668, 669 [2009], lv denied 15 NY3d 705 [2010]; Aquino v Kuczinski, Vila & Assoc.,P.C., 39 AD3d 216, 221 [2007]). Nor is defendant estopped from challenging theadmission of Haydenn's statement because the defense declined the court's offer to have the jurydecide whether defendant had authorized the superintendent to speak on his behalf; "the questionwhether a given set of facts takes a declarant's statement outside [an] exception [to the hearsayrule] is one of law" (People v Norton, 79 NY2d 808, 809 n [1991]).
Contrary to plaintiffs' contention that the admission of Haydenn's statement, even if error,was harmless, the particular epithet used could have had no other effect than to prejudice the juryagainst defendant. Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam,JJ.