Procedure
January 28, 2026
By Laura Trachtman
As an attorney who practices quite a lot of employment law, I frequently deal with the legal concept of respondeat superior. What is it, and why is it important to an employment law practice?
What is Respondeat Superior?
Respondeat superior is a Latin phrase meaning roughly “let the master answer.” (We’ll scoot right by why we, as Americans, continue to use Latin (and French) in our legal system.) Under this legal theory, an employer is vicariously responsible for the tortious actions of its employees, as long as they act within the scope of their employment. In the famous case of Riviello v. Waldren, 47 N.Y.2d 297 (1979), the courts weighed in on whether an employer was responsible for his employee’s actions when that employee, while at work, injured a customer. The Court specifically focused on the meaning of the phrase “within the scope of his employment.”
The Court of Appeals first explained that the respondeat superior doctrine had initially been narrowly defined, which meant that, because the employer could exercise close control over his employees while the employees were engaged in serving their employer, the employer’s liability was limited. Over time, however, social policies helped expand the doctrine.
An Expanding Doctrine
The expansion of respondeat superior is what makes the doctrine important to an employment attorney, as it opens up a brand new set of defendants for an injured party. What fueled this expansion? The increasing frequency of employees injuring third parties is one reason; Another is the generally deeper pockets of the employer relative to the employee who caused the injury. Modern economic devices, such as cost accounting and insurance coverage, make the burden of a lawsuit and subsequent damages easier for the employer to bear, as opposed to the employee or the injured party.
When is the Doctrine Applicable?
Accordingly, the test for the doctrine of respondeat superior was whether the tortious act was done while the employee was executing the employer’s work. It didn’t matter how irregularly or with what disregard of the employer’s instructions.
Of course, because we are discussing the law, the application of this doctrine isn’t quite that simple: It is a fact-based inquiry, and thus usually reserved for the jury. That means that, while the question can be determined on a motion for summary judgment, it needn’t necessarily be so easily resolved.
The courts have set forth guidelines to help determine employer liability: the connection between the time, place and occasion of the act; the history of the relationship between the employer and employee as spelled out in actual practice, like day to day interactions; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the employer could reasonably have anticipated the specific act. A vital inquiry is whether the tortious act as performed by the employee was so removed from their duties as to be considered an abandonment of service to the employer. A negative answer severs the responsibility of the employer. But how is this determined?
This issue is highlighted in another Court of Appeals case, Rivera v. State, 34 N.Y.3d 383 (2019), which examined whether the State is responsible for the assault by corrections officers of an inmate. Corrections officers are indeed authorized to use physical force against inmates in limited circumstances. However, the facts therein – that it was a brutal and prolonged beating involving multiple corrections officers in a flagrant and unjustified use of force – informed the Court’s decision to sever liability. Specifically, the Court held that: “[h]ere, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer’s interests.” Id. at 391.
Both of the cases examined above involved physical injury. Yet this is certainly not the only injury for which an employer could be held responsible. A critical inquiry is whether the employer’s interests are involved in the employee’s commission, either negligently or intentionally, of the tort at issue. This issue should be examined at the beginning of one’s representation to ensure that the employer is indeed exposed to liability for the acts of his employee.
December 16, 2025
By Laura Trachtman
Of late, a number of my clients have faced an Order to Show Cause for a temporary restraining order and a preliminary injunction. Their first question usually is, “What does all of this mean?”
First, an OSC is just a fancy way of saying emergency motion. It’s the vehicle by which a movant (the person who makes the motion) gets their motion in front of the Judge. A regular motion is brought by Notice of Motion, which sets forth the grounds upon which the motion is based and gives the return date (the day when everyone usually goes in front of the Judge and argues the motion). In bringing an OSC, however, you have to demonstrate to the Judge that your request has some support at the very least.
Unlike a Notice of Motion, the OSC isn’t signed by the attorney for the moving party, but by a Judge. In other words, an OSC has to surmount an initial obstacle – convincing the Judge that your request has merit. It’s the same basic paperwork, affidavits speaking to the facts and memoranda of law speaking to the law, but the attorney for the movant has to convince the Judge to sign an Order ordering the defendant to show cause and explain why an(other) Order shouldn’t be issued prohibiting the defendant from doing such-and-such. If your papers aren’t procedurally sound, if you haven’t complied with all of the prerequisites before bringing the OSC, your OSC will be denied. This process is briefly addressed in CPLR § 2214(d), which states in pertinent part, “The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.” (The last part indicates that the time and the manner are to be specified in the OSC.)
If you convince the Judge that your request has merit and you have satisfied the procedural prerequisites, the Judge will issue a TRO (as it’s usually abbreviated). This is an Order signed by a Judge, which temporarily restrains, or restricts, the defendant from engaging in certain activities. CPLR § 6313 makes provision for such an order, “If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time.”
Here, the movant’s burden is clear: They have to demonstrate in the papers supporting their OSC that immediate and irreparable injury, loss or damages will result absent an Order forbidding the non-moving party from engaging in a specific activity. In other words, the purpose of the OSC is to maintain the status quo while a motion for a preliminary injunction is being argued (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6313:l). The TRO is basically a “pause” button while the Judge reviews the papers supporting, and opposing, the preliminary injunction and issues a decision.
Next, let’s go over the preliminary injunction. First, it’s an injunction, meaning it enjoins, or forbids, one party from doing something. It can also force someone to continue doing something, which is a little confusing (as the word “enjoin” means to prohibit), but it makes sense that if the Courts can stop someone from doing something, the Courts should equally be able to get someone to keep doing something that the party would otherwise stop doing.
Second, the preliminary injunction is a request for pendente lite relief; in other words, only for the pendency of the case, as opposed to a permanent injunction, which is issued at the end of the case. This is memorialized in CPLR § 6301, “A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.”
There’s a lot of case law on preliminary injunctions, but I’ll put my favorite right here: The Court of Appeals in Aetna Ins Co. v. Capasso, 75 N.Y.2d 860, 862 (1990), held that to be entitled to a preliminary injunction, “plaintiffs had to show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor.” Additionally, the Second Department in Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 A.D.2d 348, 349-50 (2d Dept.1998), held that “[t]o sustain this burden [of demonstrating a likelihood of success on the merits], the movant must demonstrate a clear right to relief which is “plain from the undisputed facts” (see, Family Affair Haircutters v. Detling, 110 A.D.2d 745, 488 N.Y.S.2d 204). Where the facts are in sharp dispute, a temporary injunction will not be granted (internal citations omitted).”
The TL;DR of the above is that the movant has to show that they’re likely going to win the entire case, that something really bad will happen to them if the Court doesn’t issue the preliminary injunction, and that all told, it’ll be worse for them than for the other side if the Judge doesn’t issue the preliminary injunction. Further, the moving party has to show that the facts are agreed to by everyone. This is a very heavy burden. Generally speaking, it’s a lot easier to poke holes in an application for a TRO and a preliminary injunction than to bring one successfully.
I’ve argued five applications for a preliminary injunction in the last year – two in the Appellate Division – Second Department, and three in the Supreme Court. Luckily, my clients have been pleased with the results of my efforts so far. While I’m definitely becoming more comfortable with opposing and submitting OSCs (practice makes perfect and all), and I do enjoy the thrill of having the twin challenges of a short turnaround and high stakes, I would be grateful if 2026 could feature more motions and fewer OSCs.
November 4, 2025
By Laura Trachtman
Have you ever stopped to think about unjust enrichment as a cause of action? It’s wild. It’s neither a breach of contract cause of action nor a tort, and it’s grounded in equity. The entire purpose of the cause of action is to prevent unfairness.
What is unjust enrichment? The Court of Appeals in Columbia Mem’l Hosp. v. Hinds, 38 N.Y.3d 253, 275, 192 N.E.3d 1128, 1137 (2022) sets forth the following important notes on the cause of action (all internal citations and quotations removed):
- Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice in the absence of an actual agreement between the parties
- Unjust enrichment claims are rooted in the equitable principle that a person shall not be allowed to enrich [themselves] unjustly at the expense of another
- The essential inquiry in any action for unjust enrichment … is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered
- To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered
- An unjust enrichment claim is undoubtedly equitable and depends upon broad considerations of equity and justice and, to determine if it is against equity to permit a party to retain what is sought to be recovered, courts look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant’s conduct was tortious or fraudulent
What is a quasi-contractual cause of action? It’s a cause of action where one party receives the benefit of another party’s efforts. It doesn’t require mutual assent, because it’s not an actual contractual cause of action.
What’s equity, and what’s an equitable principle? Simply put, equity is about fairness. In a case involving unjust enrichment, the important inquiry is whether it’s fair to allow the party which received the benefit to keep it. Put another way, the important inquiry is whether allowing the party to keep the benefit is unfair to the person conferring the benefit.
There also must be a relationship between the party who was enriched and the party who did the enriching that could have caused reliance or inducement. While there needn’t be a fiduciary relationship, at least some special relationship needs to be in existence.
Where does unjust enrichment fit in? That’s the big question. It doesn’t result from an oral agreement where one party stiffed another: that’s a contractual cause of action. It doesn’t result from one party stealing from another: that’s a tortious cause of action. It doesn’t result from one party giving something to another and then changing their mind, either. Instead, it exists in the narrow space between tort and contract where one party receives a benefit from another party and it simply would not be fair to allow the receiving party to keep the benefit.
The pattern jury instructions are helpful in understanding this entire cuckoo bananas cause of action:
While unjust enrichment is termed a quasi-contractual cause of action, it is not based on a contract or promise at all; it is an obligation that the law creates, in the absence of any agreement, when the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he or she ought not to retain it. In such circumstances, equity merely intervenes to deem the parties in privity to each other, E.J. Brooks Company v Cambridge Security Seals, 31 NY3d 441, 80 NYS3d 162, 105 NE3d 301 (2018). The contract is a mere fiction, a form imposed in order to adapt the case to a given remedy; the law creates it, regardless of the intention of the parties, to assure a just and equitable result, E.J. Brooks Company v Cambridge Security Seals, supra; Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382, 521 NYS2d 653, 516 NE2d 190 (1987); Core Development Group LLC v Spaho, 199 AD3d 447, 157 NYS3d 416 (1st Dept 2021) (unjust enrichment imposes obligation in equity to prevent injustice, in absence of actual agreement between parties).
So, why bother to plead unjust enrichment? It’s a good idea to plead unjust enrichment in situations where you’re not sure whether your contractual cause of action is going to bear out successfully, or you don’t have one. It also works well when you’re not sure about a tortious cause of action, like conversion, will succeed. I usually see it coupled with breach of fiduciary duty, which makes sense, as it would be inequitable to allow someone to retain a benefit gained which they haven’t earned.
In sum, unjust enrichment is a tricky cause of action, but it’s one that I really like, because if all other causes of action fail, but if the Court thinks that it is unfair to allow the other side to retain the benefit at issue, it’s entirely possible that a client could receive restitution.
July 15, 2025
By Laura Trachtman
One of the longest and most expensive parts of the litigation process is discovery. For the uninitiated, discovery is the process by which parties “discover” evidence from the other side. This can take a variety of forms: written, verbal, audiovisual recordings, and inspection of locations. My aim today, however, is to focus on written discovery, and what you can and can’t ask for.
The limits of written discovery were helpfully set forth in a recent Second Department case. There, the Court held:
CPLR 3101 (a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (see Hamed v Alas Realty Corp., 209 AD3d 628, 629 [2022]). “ ’The words, material and necessary, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “ ’However, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure, and the trial courts have broad power to regulate discovery to prevent abuse’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d at 548 [internal quotation marks omitted], quoting Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]).
Harrington v. New York City Transit Authority, 223 AD3d 787 (2d Dept.2024).
OK great, but what does that mean? In short, it means that both sides have to produce anything that is material and necessary in order to either defend or prosecute the case.
What does material and necessary mean? Material and necessary means anything concerning the case that will assist in preparation for trial for either side. To break it down further: what needs to be established at trial is the injury that is the subject of the lawsuit, the damages stemming from the injury, and the liability for the damages. However, as with all aspects of the law, this is not unlimited.
What are the limits? There is no right to uncontrolled and unfettered disclosure. An excellent example of this is addressed in the Harrington case, above. The plaintiff was directed to evacuate a city bus when the fare box began smoking. While evacuating, she slipped in a substance inside the bus and fell, sustaining injuries.
During discovery, her attorneys requested information concerning the fare box and its upkeep, which then became the subject of a motion to compel, which was denied by the trial court. On appeal, the Appellate Division affirmed the lower court’s finding, noting that “[h]ere, contrary to the plaintiff’s contention, the condition of the fare box at the front of the bus was not a proximate cause of the plaintiff’s accident, but, rather, merely furnished the occasion for the plaintiff’s exit from the bus and her alleged slip and fall due to a wet substance on the floor of the bus (see Sheehan v City of New York, 40 NY2d 496, 502-503 [1976]; Landsman v Tolo, 194 AD3d 1034, 1035 [2021]). Accordingly, the requested discovery regarding the fare box was not material and necessary to the prosecution of the action, and the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to compel such discovery (see State Farm Mut. Auto. Ins. Co. v RLC Med., P.C., 150 AD3d 1034, 1035 [2017]).” In other words, the fare box, which wasn’t why the plaintiff slipped and fell, had no bearing on the controversy.
What does this mean in practical terms? It means that while, at trial, the smoking fare box as the reason for the evacuation of the bus is pertinent, it is irrelevant to how the plaintiff was hurt. , the damages incurred as a result of the injury, or whether the MTA is liable for having a wet substance on the floor of the bus.
This is important because it is a clear example of what is and is not material and necessary for the prosecution and defense of the case: As it is neither the cause of the injury, the damages incurred as a result of the injury, or the establishment of liability for the injury, it is not discoverable.
June 17, 2025
By Laura Trachtman
The Supreme Court recently denied a petition for certiorari in Nicholson v. W.L. York, Inc. d/b/a Cover Girls, et al, and refused to hear the claims of the petitioner, Chanel Nicholson. In so doing, the Supreme Court has again flouted clear precedent and failed to allow Nicholson access to the courts to remedy a discriminatory action.
In an appeal from the Fifth Circuit, which covers Texas, Louisiana and Mississippi, Nicholson asked the Supreme Court to overrule the Circuit Court’s determination that her claims were time barred. When the Supreme Court voted to refuse to hear her appeal, Justice Jackson, with Justice Sotomayor joining, wrote a pointed dissent.
First, the facts. Nicholson, a Black woman, worked as an exotic dancer in several clubs in the Houston area, starting in 2014. Race discrimination pervaded the clubs where she worked, and on multiple occasions she was refused entry to the clubs to work, with management stating that there were too many Black women already working. This was in contravention of her employment contract, which stated that she could make her own hours, and 42 USC § 1981, which is the federal cause of action for claims of intentional race discrimination in contracting. Clearly, the basis for which she was refused access to work – that there were too many Black women already working – was applied only to women of color, and not to white women, hence the basis for a discrimination lawsuit.
Next, the precedent. The statute of limitations for § 1981 actions is four years, and the claim accrues on the date that the act occurred. For every new discriminatory act, the statute of limitations restarts, but sometimes, actions occur that are not, in and of themselves, discriminatory, but rather reflect the “continued effects” of earlier discriminatory actions. Those actions do not restart the clock. And that’s where the trouble starts.
The Fifth Circuit determined that each time Petitioner Nicholson was refused work at the clubs, it did not constitute a new discriminatory act but was merely a continued effect of earlier discriminatory actions, and did not restart the clock. Mind you, Nicholson was refused work solely due to her race, as white women were allowed into the club to work at times when she was turned away. Accordingly, the Fifth Circuit determined that Nicholson’s claims were time barred, and dismissed her case. When Nicholson applied for a writ of certiorari to the Supreme Court, it was denied. While the Supreme Court isn’t required to grant cert to every Petitioner who requests that the Supreme Court review their case, the Supreme Court could have reviewed this case and corrected the Fifth Circuit’s obviously erroneous decision, but chose not to. That’s where the problem lies.
Why? Because when a new act of discrimination occurs, it restarts the clock. Not only that, but if the act is one in a continuing course of action, then not only does the most recent act start the clock, it can drag the previous acts within the statute of limitations for certain causes of action. This is the exact opposite of what the Fifth Circuit held.
In other words, the Fifth Circuit should have held that the most recent acts of discrimination restarted the clock – take the most recent act and count backwards. What the Fifth Circuit actually did was take the act that was furthest away in time and go forward. This is contrary to the established law of the land, and should be wildly disturbing to anyone who’s paying attention. The Supreme Court should have granted cert and overruled the Fifth Circuit’s decision, but they did not.
The reason I personally am so upset about this is for a couple of reasons. One, for better or for worse, I trust in our legal system to do what’s right for the American people. Our legal system is built on precedent, and both of the instances I discuss above – the Fifth Circuit’s incorrect analysis and the Supreme Court’s failure to correct the same – constitute a wildly alarming detour from precedent, which serves to undermine the entire basis for our legal system. Furthermore, this isn’t even a hard issue to decide – it’s not Delaware Chancery law or anything, it’s fairly basic, which means one of three things: 1) that the Fifth Circuit and the Supreme Court just didn’t care whether they were issuing a correct decision, or 2) they didn’t understand the legal issues, or 3) the worst option, that they know exactly what they’re doing and are doing it on purpose to disenfranchise our vulnerable citizens.
Finally, this is not the first time that the Supreme Court has deviated from settled precedent. Yes, I’m talking about Roe v. Wade. If our Supreme Court fails to respect precedent, in violation of our legal system and their oath to “do equal right to the poor and to the rich”, it’s a slippery slope to chaos and the end of our society as we know it.
