Betts v. Sixty Lower East Side, LLC

Background

Margaret Betts sued Sixty Lower East Side, LLC, Sixty Hotels, LLC, and Sixty Hotel Manager, LLC for negligence after an alleged sexual assault during an in-room massage at the Sixty LES hotel on October 19, 2018. The opinion states that Iouri Astakhov provided the massage and was not registered or otherwise authorized to practice massage therapy in New York at that time.

The hotel advertised massage services in spa menus placed in its rooms, arranged guests’ appointments, used a list of preferred massage providers, and handled payment to the providers. The massage therapists were independent professionals rather than hotel employees. The hotel did not conduct background checks on the therapists. The opinion also states that the hotel had not received complaints about Astakhov or the other massage therapists it used, and that no evidence showed Astakhov had a prior criminal record or had previously been accused of criminal conduct.

Betts asserted one negligence claim based on several theories, including failure to identify and screen Astakhov, allowing him unsupervised access to her suite, and failing to use reasonable procedures for screening massage therapists and investigating complaints. She moved for partial summary judgment under two New York Education Law provisions. The defendants moved for summary judgment on liability.

Legal standards

Summary judgment is appropriate when there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to win under the law. In deciding the motions, the court had to view reasonable factual inferences against the party seeking summary judgment.

Under New York law, negligence generally requires a duty, a violation of that duty, and an injury legally caused by the violation. Negligence per se is a rule under which violating a statute designed to protect a specific group from a particular danger can itself establish negligence, if the violation caused the injury.

New York Education Law § 7802

The court held that the defendants violated Section 7802. That provision bars a person or entity claiming to provide massage services from advertising those services unless they are performed by someone licensed or authorized under New York law.

The court found that the hotel claimed to provide massage services and advertised them, including in-room massages. It also held that Section 7802 applied even though the hotel used independent contractors rather than employees. Astakhov’s massage-therapy license had been issued in 2008, but his registration expired after November 30, 2013, and was never renewed. The court concluded that a person who was licensed but not currently registered could not lawfully practice under the statute.

The court further held that Section 7802 was intended to protect massage clients, including clients who may be unclothed and vulnerable, from inappropriate sexual touching and other misconduct. It found that treating the violation as negligence per se served the statute’s purpose and fit New York’s regulatory system.

The court also held that the statutory violation proximately caused Betts’s injuries. It reasoned that verifying Astakhov’s authorization would have shown that he could not lawfully perform the massage, and that the licensing and registration requirements were intended in part to prevent sexual misconduct. Because the relevant facts were undisputed, the court decided causation rather than leaving it for a jury.

New York Education Law § 6512(2)

The court denied Betts’s request for summary judgment under Section 6512(2). That provision makes it a felony to knowingly aid or abet three or more unlicensed people in practicing a licensed profession, or to employ or hold out those people as qualified to practice it.

The court found that Betts had not shown that the defendants knew Astakhov or the other therapists were unauthorized to practice. At most, she showed that the hotel routinely failed to verify their authorization. The court also found that she had not established that the hotel used three or more unauthorized massage therapists. Accordingly, Betts did not establish either the required knowledge or the required number of unlicensed practitioners.

Defendants’ motion

The defendants argued that they could not be liable under a theory that makes an employer responsible for an employee’s conduct, that Betts’s negligent-supervision and negligent-retention theories failed, and that New York law imposed no general duty to conduct background checks before hiring employees or independent contractors.

The court agreed with the defendants’ legal arguments concerning those theories. It held that sexual misconduct generally arises from personal motives and is not within the scope of employment. It also held that negligent supervision or retention would fail because Astakhov was an independent contractor and Betts presented no evidence that the defendants knew or should have known of a prior tendency toward sexual assault. The court further stated that New York law generally imposes no duty to use particular hiring procedures or conduct criminal background checks without facts that would alert a reasonably prudent person to investigate.

Even so, the court denied the defendants’ summary-judgment motion in its entirety because the defendants’ violation of Section 7802 independently established negligence per se and proximate causation. Thus, the court resolved liability in Betts’s favor on that statutory theory, while rejecting her separate Section 6512(2) theory. The court did not decide the amount of damages; it scheduled a teleconference concerning the damages phase.