Case 1:19-cv-10196-NRB Document 20 Filed 06/12/20 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN VAN SOEREN,
Plaintiff,
-against-

19 Civ. 10196 (NRB)

DISNEY STREAMING SERVICES D/B/A/
BAMTECH,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS

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TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. I
TABLE OF AUTHORITIES ...................................................................................................... II
PRELIMINARY STATEMENT ................................................................................................. 1
BACKGROUND ........................................................................................................................... 2
ARGUMENT ................................................................................................................................. 4
I. PLAINTIFF HAS FAILED TO PLEAD A CLAIM FOR DISCRIMINATION
UNDER ANY APPLICABLE STATUTE ..................................................................... 4
A. Plaintiff Has No Claim For Pregnancy Discrimination Under Either
Federal or New York City Law ....................................................................... 4
B. Plaintiff Has Failed to State a Claim Under the NYSHRL for
Discrimination Based on Familial Status ....................................................... 6
C. Plaintiff Has Not Alleged a Violation of the FMLA ...................................... 8
II. PLAINTIFF’S STATE LAW TORT CLAIMS MUST BE DISMISSED ............. 9
CONCLUSION ........................................................................................................................... 10

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TABLE OF AUTHORITIES
Cases
Ambroise v. United Parcel Serv. Of Am. Inc.,
143 A.D.3d 929 (2d Dep’t 2016) ........................................................................................................ 10
Anderson v. Janson Supermarkets, LLC,
32 Misc. 3d 1218(A) (Sup. Ct. Suffolk Cnty. 2011) ....................................................................... 4, 10
Barbosa v. Continuum Health Partners, Inc.,
716 F. Supp. 2d 210 (S.D.N.Y. 2010) ................................................................................................... 5
DeFranco v. Ametek Ameron, LLC,
No. 12-CV-670 (DRH)(ETB), 2013 WL 992287 (E.D.N.Y Mar. 13, 2013) .................................... 4, 5
Emmons v. City Univ. of New York,
715 F. Supp. 2d 394 (E.D.N.Y. 2010) ................................................................................................. 10
Equal Emp’t Opportunity Comm’n v. Port Auth. Of New York & New Jersey,
768 F.3d 247 (2d Cir. 2014) .................................................................................................................. 6
Fahmy v. Duane Reade, Inc.,
No. 04 Civ. 1798 (DLC GWG), 2005 WL 2338711 (S.D.N.Y. Sept. 26, 2005) ................................ 10
Fisher v. Vassar Coll.,
114 F.3d 1332 (2d Cir. 1997)............................................................................................................... 4-5
Gong v. City Univ. of New York,
No. 18 CIV. 3027 (LGS), 2019 WL 952340 (S.D.N.Y. Feb. 27, 2019) ............................................... 5
Graziadio v. Culinary Inst. of Am.,
817 F.3d 415 (2d Cir. 2016) .............................................................................................................. 8- 9
Harrington v. City of New York,
157 A.D.3d 582 (1st Dep’t 2018) .......................................................................................................... 6
Henry v. Wyeth Pharm., Inc.,
616 F.3d 134 (2d Cir. 2010) .................................................................................................................. 8
Howell v. New York Post Co. Inc.,
81 N.Y.2d 115 (1993) ........................................................................................................................... 9
Mathirampuzha v. Potter,
548 F.3d 70 (2d Cir. 2008) .................................................................................................................... 7
Meagher v. State Univ. Constr. Fund,
No. 1:17-CV-0903 (GTS/CFH), 2018 WL 3069192 (N.D.N.Y. June 21, 2018) .................................. 5
Melman v. Montefiore Med. Ctr.,
98 A.D.3d 107 (1st Dep’t 2012) ............................................................................................................ 6
Mihalik v. Credit Agricole Cheuvreux N. Am Inc.,
715 F.3d 102 (2d Cir. 2013) .................................................................................................................. 5

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Mohammed v. The Great Atl. & Pac. Tea Co.,
44 Misc. 3d 396 (Sup. Ct. N.Y. Cnty. 2014) ......................................................................................... 9
Mormol v. Costco Wholesale Corp.,
364 F.3d 54 (2d Cir. 2004) .................................................................................................................... 7
Pension Benefit Guar. Corp. ex rel. Saint Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv.
Mgmt. Inc.,
712 F.3d 705 (2d Cir. 2013) ................................................................................................................... 9
Reilly v. First Niagara Bank, N.A.,
173 A.D.3d 1082 (2d Dep’t 2019) ........................................................................................................ 7
Rissman v. Chertoff,
No. 08 CIV. 7352 (DC), 2008 WL 5191394 (S.D.N.Y. Dec. 12, 2008) ................................................ 8
Scollar v. City of New York,
160 A.D.3d 140 (1st Dep’t 2018) .......................................................................................................... 9
Shmueli v. Corcoran Grp.,
9 Misc. 3d 589 (Sup. Ct. N.Y. Cnty. 2005) ...................................................................................... 9-10
Stuto v. Fleishman,
164 F.3d 820 (2d Cir. 1999) .................................................................................................................. 9
Woods v. START Treatment & Recovery Ctrs. Inc.,
864 F.3d 158 (2d Cir. 2017) .................................................................................................................. 8
Statutes
N.Y.C. Admin. Code § 8-107 (22) (2018) .................................................................................................. 4
42 U.S.C. § 2000e(k) (2018) ........................................................................................................................ 4
N.Y. Exec. Law. § 296 (1) (a) ..................................................................................................................... 6

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PRELIMINARY STATEMENT
In his Complaint, Plaintiff Steven Van Soeren alleges that, during his three years as an atwill employee for Defendant Disney Streaming Services (“DSS”), his supervisor and co-workers
hacked into his computer and phone to spy on him and occasionally teased and cursed at him
before he was terminated without cause and without severance.
Plaintiff contends that this conduct gives rise to claims under Title VII, the Pregnancy
Discrimination Act (“PDA”), the New York State Human Rights Law (“NYSHRL”), the New
York City Human Rights Law (“NYCHRL”), and the Family and Medical Leave Act (“FMLA”)
for pregnancy discrimination based on his wife’s pregnancy as well as claims under New York
State law for intentional infliction of emotional distress and negligent supervision.
Plaintiff is wrong and each of his claims must be dismissed. First, Plaintiff is not in the
protected class for pregnancy discrimination under Title VII/PDA and the NYCHRL because those
statutes protect only pregnant employees, not employees with pregnant spouses. And since
Plaintiff has only pled bare legal conclusions that he was treated less favorably than a pregnant
woman or a woman with a pregnant spouse, without even a single specific factual comparator, he
cannot sustain a claim for sex-plus discrimination under either of these statutes.
Second, although Plaintiff arguably falls within the protected class for pregnancy
discrimination under the NYSHRL, which offers protection based on “familial status,” he has
failed to sufficiently plead the remaining elements of that claim. As demonstrated below, there is
no causal or temporal nexus between any of the alleged conduct, much of which occurred before
anyone at DSS knew that he and his wife were expecting a baby, and his wife’s pregnancy. The
Court can infer no plausible inference of discriminatory intent from the few stray remarks that
relate to pregnancy or children.

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Third, Plaintiff’s FMLA claim also fails because, as he describes in the Complaint, he
requested and was granted two weeks of paternity leave. After his leave, Plaintiff returned to the
same job, and the Complaint is devoid of any facts connecting his eventual termination to that
leave.
Finally, Plaintiff’s state law tort claims must also be dismissed because neither claim has
been, or can be, sufficiently pled. Plaintiff’s intentional infliction of emotional distress claim is
insufficient, because the conduct that Plaintiff has described in the Complaint does not rise to the
level of “extreme and outrageous” conduct required for a claim of intentional infliction of
emotional distress. He also has not pled any of the elements of a negligent supervision claim.
BACKGROUND
The Complaint sets forth the following relevant factual allegations, all of which are
presumed to be true for purposes of this motion.
In August 2016, Plaintiff began working as a product designer for DSS. Docket Entry 1
(Compl.) ¶¶ 4, 12. When Plaintiff took the job, he agreed to accept a salary which was less than
the compensation originally posted in the job listing. Soon after he began working, Plaintiff claims
that his supervisor and a co-worker subjected him to unspecified “public shaming and harassment.”
Id. ¶ 17.
In June 2018, DSS personnel allegedly hacked Plaintiff’s phone and personal laptop to spy
on his internet activity. Id. ¶¶ 18-19, 25-26. As proof of DSS’s spying, Plaintiff recounts that his
supervisor said “maybe you shouldn’t have a kid” and “I don’t know why he decided to have a
kid,” even though Plaintiff had not yet told anyone at work that he and his wife were expecting a
baby. As further evidence of DSS’s invasion of privacy, one of Plaintiff’s colleagues allegedly
told him not to eat at Subway if “you’re worried about carcinogens,” shortly after Plaintiff had

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researched carcinogens and health concerns at Subway. Finally, other of Plaintiff’s colleagues
commented about him getting a massage even though Plaintiff contends he never discussed the
subject with anyone at work. He alleges that he had only ever researched the benefits of massage
from home. Id. ¶¶ 19-23.
Once Plaintiff disclosed to his co-workers that he and his wife were expecting a baby, he
alleges that he was “taunted and traumatized.” Id. ¶ 28. On one occasion, a co-worker playfully
sprayed him with baby powder. Id. ¶ 27. On another, Plaintiff’s supervisor and a co-worker
suggested that an office party was really a baby shower for Plaintiff even though his baby was not
due for another three months. Id. ¶ 28. During this period, Plaintiff’s coworkers are also alleged
to have used offensive language towards him: saying “‘fuck you, Steve,’ calling him the ‘tallest
midget’ and saying that ‘everything he said was stupid,’ called him a ‘creep,’ and made insulting
animalistic faces at him.” Id. ¶ 31. Finally, Plaintiff’s supervisor allegedly brandished a knife at
him and swung a baseball bat over his head. Id. ¶¶ 41-42.
Although he does not say when, Plaintiff reported all of the foregoing alleged conduct to
DSS’s Human Resources department. While he was dissatisfied with the results and found the
department unhelpful, Plaintiff confirms that an investigation was conducted, which included
interviewing Plaintiff’s supervisor and his co-workers. Id. ¶¶ 33-35.
Sometime after his wife gave birth, Plaintiff requested and was granted two weeks of
paternity leave in “spring 2019.” At the conclusion of his leave, Plaintiff returned to his job. Id.
¶ 43. Plaintiff alleges that when he returned, the work environment was “unchanged” and his coworkers continued to taunt him with comments about babies. “Specifically, [a co-worker] made a
comment about still birth/children not properly being developed in the womb;” fortunately not
something Plaintiff and his wife had experienced. Id. And Plaintiff overhead a different co-worker

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ask another parent in the office whether his child was “everything you ever wanted” and then said
“yuck” before walking away. Id. ¶ 29.
On May 6, 2019, Plaintiff’s employment was terminated. Although Plaintiff does not
allege the reason that he was given for his termination, he states that it was without cause or
severance, and without a legitimate, non-discriminatory reason. Id. ¶ 44-45.
ARGUMENT
I.

PLAINTIFF HAS FAILED TO PLEAD A CLAIM FOR DISCRIMINATION
UNDER ANY APPLICABLE STATUTE
A. Plaintiff Has No Claim For Pregnancy Discrimination Under Either Federal
or New York City Law
Title VII and the NYCHRL only provide protection to a pregnant employee, not to an

employee whose spouse is pregnant. See 42 U.S.C. § 2000e(k) and N.Y.C. Admin. Code, 42
U.S.C. §§ 8-107(22);1 see also, e.g., DeFranco v. Ametek Ameron, LLC, No. 12-CV-670
(DRH)(ETB), 2013 WL 992287, at *5 (E.D.N.Y Mar. 13, 2013) (discrimination based on familial
status alone is insufficient basis for Title VII claim). Accordingly, Plaintiff’s claims for pregnancy
discrimination under those statutes must be dismissed because he does not fall within the protected
class.
Nor can Plaintiff sustain a claim for “sex plus” discrimination2—the only recognized
exception to this rule—because the Complaint has no allegations that Plaintiff was discriminated
Title VII, as amended by the PDA, expressly defines pregnancy discrimination as “because of or on the
basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all employment-related purposes,
including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in
their ability or inability to work.” 42 U.S.C. § 2000e(k). Likewise, the NYCHRL expressly protects “the
needs of an employee for the employee’s pregnancy, childbirth, or related medical condition.” N.Y.C.
Admin Code § 8-107(22)(2018).
2
See, e.g., Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997), abrogated on other grounds
by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (a “sex plus” claim is one that an
employer discriminated against the plaintiff “because of sex plus another characteristic, such as marital or
parental status.” Under the sex-plus rubric, to allege pregnancy discrimination as the spouse of a pregnant
1

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against because of his male gender and his wife’s pregnancy. Id. at *4-5 (dismissing discrimination
claim based on sex plus familial status where plaintiff failed to plead that employer “treated fathers
and mothers differently”); Meagher v. State Univ. Constr. Fund, No. 1:17-CV-0903 (GTS/CFH),
2018 WL 3069192, at *7-8 (N.D.N.Y. June 21, 2018) (dismissing female plaintiff’s sex plus
parental status claim where allegedly discriminatory comments made no reference to plaintiff as a
woman with children); Mihalik v. Credit Agricole Cheuvreux N. Am Inc., 715 F.3d 102, 110 (2d
Cir. 2013).
First, the Complaint does not contain a single specific factual allegation that a similarly
situated female was treated more favorably than the Plaintiff. A sex-plus claim that fails to include
specific allegations of comparators is subject to immediate dismissal. See, e.g., Gong v. City Univ. of
New York, No. 18 CIV. 3027 (LGS), 2019 WL 952340, at *4 (S.D.N.Y. Feb. 27, 2019) (dismissing
complaint where plaintiff failed to allege that comparators were similar in all material respects);
Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 219 (S.D.N.Y. 2010) (dismissing
complaint where plaintiff “has not identified any similarly situated individual, outside of her protected
race and age classes, who was treated any differently under similar circumstances.”).

Second, Plaintiff fails to allege, nor can it be plausibly inferred, that any of his coworkers’
purported comments or actions were directed to him because he was a man whose wife was
expecting a baby. To the contrary, Plaintiff simply repeats the conclusory allegation that he was
treated less favorably than a female employee with a pregnant spouse or a pregnant female
employee, without providing a single specific factual detail about how any such female employee
was actually treated differently than him. See Compl. ¶¶ 51, 58, 67, 73. This bare statement is
merely the recitation of legal elements, not a “factual allegation” entitled to a presumption of truth,

woman, Plaintiff must allege that he was discriminated against because of his sex, as well as because of
his spouse’s pregnancy.)

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and, without more, is insufficient to state a claim of sex-based discrimination. Compl. ¶¶ 64, 76.
See Equal Emp’t Opportunity Comm’n v. Port Auth. Of New York & New Jersey, 768 F.3d 247,
254 (2d Cir. 2014) (“[W]hile a discrimination complaint need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion to dismiss, it must at a
minimum assert nonconclusory factual matter sufficient to ‘“nudge [] [its] claims’ . . . ‘across the
line from conceivable to plausible”’ to proceed.”) (internal citations omitted).
B. Plaintiff Has Failed to State a Claim Under the NYSHRL for Discrimination
Based on Familial Status
Although the NYSHRL (unlike Title VII and the NYCHRL) recognizes familial status as
a protected class, Plaintiff has failed to sufficiently plead any nexus between the purported
discriminatory conduct and that protected status. see N.Y. Exec. Law § 296(1)(a).3,4
First, most of the alleged discriminatory conduct occurred before Plaintiff’s wife became
pregnant or before he told anyone at work about the pregnancy. For example, Plaintiff’s allegedly
inadequate salary occurred years before his wife became pregnant. Compl. ¶ 17. Likewise, the
purported hacking and comment that Plaintiff “shouldn’t have a kid” also occurred before Plaintiff
informed anyone in his workplace about his wife’s pregnancy. Compl. ¶¶ 17-19. None of this
alleged conduct form the basis of a claim for pregnancy discrimination. See Melman v. Montefiore
Med. Ctr., 98 A.D.3d 107, 129 (1st Dep’t 2012) (where an employer’s course of conduct began
before any protected activity, there is no causal connection).

3

To state a claim for discrimination under the NYSHRL, a plaintiff must specifically allege: “(1) that
he/she is a member of a protected class, (2) that he/she was qualified for the position, (3) that he/she was
subjected to an adverse employment action . . . , and (4) that the adverse . . . treatment occurred under
circumstances giving rise to an inference of discrimination.” Harrington v. City of New York, 157 A.D.3d
582, 584 (1st Dep’t 2018) (citation omitted).
4
Plaintiff’s Title VII and NYCHRL claims fail for this reason as well.

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Likewise, no inference of discriminatory animus can be drawn from any of the purported
conduct that occurred after Plaintiff allegedly disclosed his spouse’s pregnancy at work because
the conduct had nothing to do with pregnancy. For example, none of the alleged “antagonizing
words and expletives” or alleged physical threats (Compl. ¶¶ 31, 41-42) even remotely mention
pregnancy or familial status. And there is certainly no discriminatory animus that can be inferred
from a discussion about Subway sandwiches or massages. (Compl. ¶¶ 22-23). None of these
allegations can therefore serve as evidence of anti-pregnancy animus. See Reilly v. First Niagara
Bank, N.A., 173 A.D.3d 1082 (2d Dep’t 2019) (affirming dismissal of complaint where “plaintiff
failed to allege that an adverse employment action occurred under circumstances giving rise to an
inference of discrimination”).
Even the most serious of the allegations have no plausible nexus to pregnancy and, in any
event, are not pervasive enough to be actionable. Although Plaintiff alleges that he was threatened
with a knife on two occasions, he does not allege that these incidents were connected in any way
to his wife’s pregnancy. Compl. ¶¶ 41-42. Likewise, he claims that his supervisor occasionally
swung a baseball bat near his head and smirked, but again does not allege that his conduct—
unpleasant as it may be—was connected in any way to his wife’s pregnancy.5 See Mormol v.
Costco Wholesale Corp., 364 F.3d 54, 58–59 (2d Cir. 2004) (“The episodes of harassment, far
from being pervasive, were few and occurred over a short span of time.”).
Finally, the three pregnancy-related comments Plaintiff does allege, i.e. the joke that an
office party was for Plaintiff’s baby, showering him with some baby powder, and asking another

Plaintiff concedes that neither of these purported incidents caused an “intolerable alteration” of
his working conditions since he remained “in the same position, at the same pay, and with the
same responsibilities” after they allegedly occurred. See, e.g., Mathirampuzha v. Potter, 548
F.3d 70, 79 (2d Cir. 2008) (aggressive physical behavior by supervisor not an adverse
employment action).
5

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co-worker about his experience as a parent (Compl. ¶¶ 27-29) are isolated incidents that cannot
support a discrimination claim.

It is well established that “stray remarks” simply are not

actionable. See, e.g., Rissman v. Chertoff, No. 08 CIV. 7352 (DC), 2008 WL 5191394, at *3
(S.D.N.Y. Dec. 12, 2008) (dismissing discrimination complaint where coworker’s statements “do
not amount to more than stray remarks,” explaining that “[s]imple teasing, offhand comments, or
isolated incidents of offensive conduct” cannot state a claim) (citation omitted); see also Henry v.
Wyeth Pharm., Inc., 616 F.3d 134, 149-50 (2d Cir. 2010) (explaining that stray remarks are not
probative where, inter alia, the content of the remarks are not discriminatory, the remarks are not
temporally proximate, and were not made in the context of any employment decisions).
C. Plaintiff Has Not Alleged a Violation of the FMLA
Plaintiff has failed to allege that DSS in fact interfered with his FMLA leave or retaliated
against him for taking FMLA leave. See, e.g. Woods v. START Treatment & Recovery Ctrs. Inc.,
864 F.3d 158, 166 (2d Cir. 2017).6 To the contrary, Plaintiff admits that he took his two-week
paternity leave without incident. And Plaintiff’s concession that he returned from his FMLA leave
to an “unchanged work environment” (Compl. ¶ 43) belies the essence of retaliation, i.e. that
something in the workplace becomes worse after a plaintiff engages in protected activity. See
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016) (FMLA retaliation plaintiff
must allege the occurrence of an adverse employment action). Finally, Plaintiff nowhere alleges

To state an interference claim, a plaintiff must allege: “1) that she is an eligible employee under the FMLA;
2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under
the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied
benefits to which she was entitled under the FMLA.” Graziadio v. Culinary Inst. of Am., 817 F.3d 415,
424 (2d Cir. 2016). To state a prima facie retaliation claim, the plaintiff must allege that: “1) he exercised
rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment
action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of
retaliatory intent.” Id. at 429.
6

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that his termination was motivated, in whole or in part, by his decision to take two weeks of FMLAprotected paternity leave. Id. (to state a claim, Plaintiff must allege that any adverse employment
action was causally connected to his protected activity). Plaintiff’s FMLA claim should therefore
be dismissed for failure to state a claim.
II.

PLAINTIFF’S STATE LAW TORT CLAIMS MUST BE DISMISSED
Once the Court dismisses Plaintiff’s Title VII and FMLA claims, there is no basis for the

Court to exercise jurisdiction over any remaining state law claims. Federal Courts routinely
decline to exercise jurisdiction over pendant state law claims, particularly when those claims are
inadequately pled. See, e.g., Pension Benefit Guar. Corp. ex rel. Saint Vincent Catholic Med. Ctrs.
Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013).
Moreover, New York courts “routinely dismiss causes of action for intentional infliction
of emotional distress where, as here, the cause of action is based on discriminatory conduct.”
Mohammed v. The Great Atl. & Pac. Tea Co., 44 Misc. 3d 396, 399-400 (Sup. Ct. N.Y. Cnty.
2014). In any event, Plaintiff has not pled any facts from which this Court could conclude that
any of the alleged conduct rises to the required level of “extreme and outrageous conduct,” a
standard which is “rigorous, and difficult to satisfy.” Howell v. New York Post Co., Inc., 81 N.Y.2d
115, 121-22 (1993). “Whether the conduct alleged may reasonably be regarded as so extreme and
outrageous as to permit recovery is a matter for the court to determine in the first instance.” Stuto
v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Acts that meet this high standard are far more
disturbing than those alleged here. See, e.g., Scollar v. City of New York, 160 A.D.3d 140 (1st
Dep’t 2018) (malicious campaign of harassment by police officer abusing power in an attempt to
get plaintiff’s child taken away); Shmueli v. Corcoran Grp., 9 Misc. 3d 589, 596 (Sup. Ct. N.Y.
Cnty. 2005) (supervisor subjecting plaintiff employee to undue pressure to commit perjury).

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Finally, an adverse employment action, even based on discrimination, is insufficient to
meet the standard of “extreme and outrageous conduct.” See, e.g., Emmons v. City Univ. of New
York, 715 F. Supp. 2d 394, 424 (E.D.N.Y. 2010); Fahmy v. Duane Reade, Inc., No. 04 Civ. 1798
(DLC/GWG,) 2005 WL 2338711, at *8 (S.D.N.Y. Sept. 26, 2005) (collecting examples of adverse
employment actions which do not meet the standard, including failure to promote, use of ethnic
slurs, and discriminatory termination). Accordingly, while Plaintiff has not alleged that his
coworkers’ actions constitute an adverse employment action, even if he had, the specific conduct
alleged here does not meet this high bar.
Similarly, Plaintiff’s negligent supervision claim must be dismissed because Plaintiff
claims Defendant’s employees were acting within the scope of their employment. “Generally,
where an employee is acting within the scope of his or her employment, the employer is liable
under the theory of respondeat superior, and the plaintiff may not proceed with a claim to recover
damages for negligent hiring, retention, supervision, or training.” Ambroise v. United Parcel Serv.
Of Am. Inc., 143 A.D.3d 929, 931 (2d Dep’t 2016). To the extent that Plaintiff might claim that
Defendant’s employees were acting outside the scope of their employment, he has failed to
adequately plead the elements of negligent hiring or supervision, which require that the employer
had previously been made aware of the supposed physical threats to the Plaintiff or that the
employer was aware of a propensity by those employees to physical violence. See Anderson v.
Janson Supermarkets, LLC, 32 Misc. 3d 1218(A) (Sup. Ct. Suffolk Cnty. 2011). Plaintiff has not
made such allegations here, and therefore this claim must be dismissed.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Complaint be dismissed
in its entirety, together with such other and further relief as the Court deems appropriate.

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Dated: New York, New York
June 12, 2020
HOGUET NEWMAN REGAL & KENNEY, LLP
________________________________
Helene R. Hechtkopf (HH7402)
Miriam J. Manber (MM0263)
One Grand Central Place
60 East 42nd Street, 48th Floor
New York, NY 10165
Phone: 212-689-8808
Attorneys for Defendant

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