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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 7, 2020

Whether Employer is Responsible for Employee’s Defamatory Statements is a Question of Fact

On October 2, 2020, the Fourth Department issued a decision in Elizabeth Votsis & Crave L&D, LLC v. ADP, LLC, 2020 NY Slip Op. 05311, holding that whether an employer is responsible for an employee’s defamatory statements is a question of fact, explaining:

Accepting as true the facts alleged in the amended complaint, as we must on a motion to dismiss pursuant to CPLR 3211(a)(7), and according plaintiffs the benefit of every possible favorable inference, we agree with plaintiffs that Supreme Court erred in dismissing their first cause of action, for libel and defamation based on a theory of respondeat superior liability, against ADP. An employer may be held liable under a theory of respondeat superior for the intentional torts of its employees when done within the scope of employment. An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his or her employer, or if his or her act may be reasonably said to be necessary or incident to such employment. The issue whether an employee is acting within the scope of his or her employment is ordinarily for jury resolution.

To that end, plaintiffs’ amended complaint explicitly alleged that Polit was acting within the scope of his employment as a district manager employed by ADP when he published the defamatory statements against plaintiffs. Assuming, arguendo, that this assertion alone is too conclusory to state a cause of action against ADP premised on respondeat superior liability, we conclude that plaintiffs sufficiently pleaded the existence of respondeat superior liability through other allegations, including, among other things, that Polit visited Crave for the sole purpose of soliciting plaintiffs to enter into a payroll service agreement with ADP, that Polit represented himself as ADP’s district manager and requested Crave’s business and payroll records in order to provide Crave with a quote for ADP’s services, that the post was based on Polit’s review of those records, that ADP encouraged Polit to use social media in connection with his sales work, that Polit published the post during regular business hours, and that ADP was aware of Polit’s use of Facebook and authorized his conduct. Furthermore, we conclude that, with respect to ADP, plaintiffs sufficiently alleged the other necessary elements of their first cause of action. We therefore modify the order accordingly.

(Internal quotations and citations omitted).

Civil litigation can involve claims that cause real reputational harm, but not every statement can be the subject of a defamation claim. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about whether statements about you or your business can be the basis for a claim for defamation.

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Posted in Commercial, Defamation
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