Majtan v. Howard D. Johnson Co.

Judgment unanimously reversed on the law with costs and motion denied. Memorandum: The court erred in granting defendants’ motion for summary judgment because defendants failed to meet their burden of proving as a matter of law that the remarks made by their employee, a waitress, to a customer about plaintiff’s sexual preference were outside the scope of her employment (see generally, Riviello v Waldron, 47 NY2d 297, 303; Murray v Watervliet City School Dist., 130 AD2d 830), particularly in light of the fact that her job responsibilities included making conversation with the customers (cf., Heindel v Bowery Sav. Bank, 138 AD2d 787). We further find that plaintiff has raised a question of fact whether defendants ratified their employee’s statements (see, e.g, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684; see generally, 52 NY Jur 2d, Employment Relations, § 358). (Appeal from judgment of Supreme Court, Herkimer County, O’Donnell, J.—summary judgment.) Present—Callahan, J. P., Doerr, Boomer, Pine and Lawton, JJ.