SUPREME COURT COUNTY OF KINGS, PART CSCP Index No.: 3512/2007 TRACY BUMPUS Plain against. a DECISION/ORDER NEW YORK CITY TRANSIT AUTHORITY and “SANE DOE,” Hon. Kenneth P. Sherman Defendants Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affidavits Annexednvon- ‘Opposing Affidavits/A firmations Reply Affidavits/A firmations.. ‘Other papers submitted. Upon the foregoing papers, defendants New York City Transit Authority (NYCTA) and Lorna Smith (sued as “Jane Doe” and, hereinafter, “Smith”, move for an order, pursuant to CPLR 3212 granting them summary judgment dismissing the complaint. Non-party City of New York (the “City”) moves, pursuant to CPLR 1012 (b) (2), for leave to intervene in support of the constitutionality of § 8-107 (4) (a) of the Administrative Code of the City of New York (“§ 8-107 aay! Background and Procedural History ‘The complaint asserts that on July 16, 2006 and July 25, 2006, plaintiff suffered emotional distress caused by the acts and statements of Smith, On those days, plaintiff, a Title 8 of the Administrative Code of the City of New York is sometimes referred to as the New York City Human Rights Law.transgender woman, entered the downtown side of the Nostrand Avenue A train subway station (operated by NYCTA). Plaintiff alleges that on July 16, 2006, she asked Smith, aNYCTA service employee, for assistance with using a MetroCard. Plaintiff alleges that Smith responded with “a steady stream of discriminatory, transgender-phobic (“transphobic”) epithets at Ms. Bumpus, verbally harassing her and haranguing her with vicious transphobie language in an extremely loud voice, pointedly doing so publicly to humiliate and harass Ms. Bumpus."? On July 25, 2006, Ms. Bumpus entered the Nostrand Avenue “A” train station, and once again defendant, NYCTA employee Smith (while standing with another NYCTA employee), allegedly recognized Ms. Bumpus, pointed at her and again commenced to verbally harass her and harangue her with vicious transphobic language in an extremely loud voice, pointedly doing so publicly to humiliate and harass Ms. Bumpus. This allegedly occurred after Ms. Bumpus made a formal complaint and spoke with NYCTA Superintendent Mr. Clayton Moe on July 20, 2006 regarding the initial incident. Thereafter, on October 10, 2006, plaintiff filed a notice of claim, pursuant to General Municipal Law § 50-c, against the NYCTA. On December 7, 2006, plaintiff gave testimony at a hearing held pursuant to General Municipal Law § 50-h. Lastly, on January 30, 2007, plaintiff commenced the instant action against NYCTA. Plaintiff asserts two causes of action in the complaint. ‘The first cause of action alleges that NYCTA is liable for the “metal and emotional injuries and anguish, embarrassment, psychological and mental distress” caused by Smith as a result of NYCTA’s negligent training, supervision and retention of Smith. ‘The second cause of action alleges that “Doe {defendant Smith], an employee of the NYCTA, wantonly, wrongfully and maliciously, with deliberate ? Paragraph 10 of the complaint (a copy of which is annexed as Exhibit 1 to defendants’ affidavits in support of their motion) states that “[allthough [plaintiff] was born anatomically male, [she] has had a female gender identity, an innate sense of being female, from a very carly age ... [she] lives and, ainong other things, dresses each day as a woman .... [she] hes been on hormone therapy, prescribed by her doctor, to help change her physical ‘appearance to that of a woman.” This court will use feminine nouns and pronouns in referring to plaintiff, in conformance with her gender identity (see also Bumpus v New York City Tr. Auth., 18 Misc 34 1131{A}, 2008 NY Slip Op 50254{U}, n 1) ? Paragraph 12 of the complaint. * Paragraph 21 of the complaint.intent to injure, made declarations and took aetions to make Ms. Bumpus feel that her patronage was unwelcome, objectionable and not accepted, desired or solicited at the Nostrand Avenue ‘A’ train subway station because she is a transgender woman.” Plaintiff concludes that Smith’s actions constituted a violation of § 8-107 (4) (a) and caused the emotional injuries noted in the first cause of action. On March 19, 2007, defendant NYCTA moved to dismiss the complaint. In support of its motion, NYCTA argued that: (1) plaintiff failed to state a cause of action against the NYCTA for the negligent hiring, retention, supervision, or training of Smith; and (2) the NYCTA is urisdictionally exempt from § 8-107 (4) (a) by virtue of the Public Authorities Law. By order dated July 11, 2007, the motion was denied, On August 9, 2007, NYCTA filed a notice of appeal from the July 11, 2007 decision and on January 15, 2008, the Second Department of the Appellate Division affirmed the court's July 11, 2007 decision. On August 27, 2007, NYCTA interposed an answer, On October 17, 2007, plaintiff filed an affirmation of service of the summons and complaint on Smith. On November 9, 2007, Smith moved to dismiss the action as against her arguing: (1) the summons and complaint were not timely served; and (2) since she is a public iction of the anti- employee, the Public Authorities Law exempts her from the juris. discrimination provisions contained in the Administrative Code of the City of New York. By decision and order dated February 13, 2008, the court denied Smith’s motion to dismiss (Bumpus v New York City Tr. Auth., 18 Mise 3d 1131[A], 2008 NY Slip Op $0254[U). First, the court rejected the contention that the action should be dismissed as against Smith for Inte service of the summons and complaint. The court reasoned that: “[sfince plaintiff was unaware of the name of the employee at the time of the filing of the complaint, the Court finds that there has been a display of reasonable ue diligence on the part of plaintiff in attempting to serve Doe-Smith, due to the difficulty in finding the contact information, location of transit worker, common nature ofthe transit workers last name ‘Smith,’ and the difficulty in having service effected. . .. Accordingly, in the interest of justice, the Court finds good * Paragraph 24 of the complaintcause for the late service” (/d. at *3, citing Jordan v City of New York, 38 AD3d. 336 [2007]; Leader v Maroney, Ponzini & Spencer, 97 NY24 95 (2001). The court also rejected the contention that the Public Authorities Law exempted Smith from the anti-discrimination provisions contained in the Administrative Code of the City of New York. In so doing, the court first noted that “[t]he New York City Human Rights Law sets forth re history contemplates that the Law be independently a broad purpose . [t]he legis! construed with the aim of making it the most progressive in the nation” and that “[tJhe New York City Human Rights Law was intended to be more protective than its state and federal counterparts” (Id, at *4-5). Also, after reviewing relevant case law and certain amendments to the Public Authorities Law, this court found that “the NYCTA is not exempt from local laws thet do not interfere with the function and purpose of the Transit Authority” (Jd at *S). Noting that the alleged behavior of Smith was outside the scope of her employment, and would in fact violate NYCTA employee conduct rules, the court determined that the applicable provision of the New York City Human Rights Law did not conflict with NYCTA duties, ‘Therefore, this court reasoned, neither the NYCTA nor its employee Smith were exempt from the subject anti= discrimination provision On March 14, 2008, defendant Smith (proceeding as “Jane Doe”) filed a notice of appeal of the February 13, 2008 order, By decision and order dated July 7, 2008, the Appellate Division affirmed the court's February 13, 2008 order, by which the court permitted late service of process on defendant Smith and rejected the argument that Smith was jurisdictionally exempt from the Public Authorities Law (Bumpus v New York City Tr. Auth., 66 AD3d 26 [2009]). First, the Appellate Division stated that plaintiff was entitled fo an extension of ime to serve process on Smith pursuant to the interest-of justice standard of CPLR 306-b. Specifically, the Appellate Division noted that: “plaintiff's commencement of litigation against an unknown party, denominated as ‘Jane Doe,’ aligns this case with others where service of process proves to be uniquely difficult because of the nature of the challenge (see Redmond v Jamaica Hosp. Med. Ctr., 29 AD3d 768, 770 [2006]; Greco v Renegades, Inc., 307 AD2d 711 [2003}; Kaulpa v Jackson, 3 Misc 3d 227 [2004}). Additionally, as noted by the Supreme Court, Smith had a common surname, and the plaintiff did not 4possess Smith’s work location and schedule until September 2007. Smith, in turn, articulated no credible argument of prejudice resulting from the timing of service. There is nothing in the record suggesting that the plaintiff's complaint lacks facial merit, and indeed, Smith does not contest merit as an issue here. The length of the delay in service is not particularly egregious under the circumstances, and service was effected promptly by the plaintiff's counsel upon being advised of Smith's work location and work schedule” (id. at 37). Second, the Appellate Division affirmed the court’s rationale and disposition of Smith’s argument concerning the Public Authorities Law, Specifically, the Appellate Division noted that: “{clontrary to Smith’s contention, Public Authorities Law § 1266 (8) does not exempt the NYCTA or its employees from all local laws affecting its activities and operations, but rather, only those ‘conflicting with this title or any rule or regulation’ of the NYCTA (see Tang v New York City Tr. Auth,, 55 AD3d 720 id.) Plaintiff filed and served a note of issue, on November 12, 2009, indicating that the instant action is ready for trial. On January 11,2010, defendants moved for summary judgment dismissing the complaint. By order to show cause filed May 20, 2010, the City of New York moved to intervene in the instant action opposing NYCTA's constitutional challenge to § 8-107 [2008}). No conflict has been shown to exist in the laws at issue here (4) (a). Arguments Advanced by Defendants In support of their motion for summary judgment, defendants first assert that Smith's alleged statements do not violate § 8-107 (4) (a). Defendants concede (for the purposes of this argument) the alleged statements were both demeaning and based on plaintiff's gender identity and expression. However, defendants argue that the text of § 8-107 (4) (a) applies only to discriminatory statements that imply that the use of public accommodation by the target of the statements is unwelcome or objectionable, and that the alleged statements by Smith did not implicate plaintiff's use of the subway system. Thus defendants conclude the alleged discriminatory statement did not imply that plaintif?’s “patronage or custom” of the subway system was “unwelcome, objectionable or not acceptable, desired or solicited” and, therefore, the alleged statements did not implicate § 8-107 (4) (a). 5In the alternative, defendants argue that if defendants’ statements fall within § 8-107 (4) (@) so that the provision is deemed to apply as plaintiff claims, then that would render the provision unconstitutionally void for vagueness. Defendants claim that although the alleged statements were rude, there is no basis for assuming that the rude statements express that plaintiff's use of the subways is unwelcome. Defendants state that such an assumption would deprive NYCTA of fair notice of what may lawfully be said in a similar setting. Defendants conclude that any interpretation of § 8-107 (4) (a) that makes it applicable to disoriminatory remarks devoid ofa statement that the patronage of a person is unwelcome would render § 8-107 (4) (@) void for vagueness. Defendants argue that § 8-107 (4) (a) does not apply to Smith because the use of ©... employee” indicates that the prohibition applies to employees who are acting ‘within the scope of their employment when the statements were made and further that a similar- worded State of New York statute* indicates that § 8-107 (4) (a) applies only to managers and terpretation to the supervisors of public accommodations. Defendants maintain that an contrary would render all of the NYCTA’s 47,000 employees subject to liability for declarations similar to the one allegedly made by Smith, Furthermore, without a limit in the application of § 8-107 (4) (a) to managerial and supervisory employees the result would be unconstitutional overbreadth. Because plaintiff cannot sustain its claim for discrimination based on an unconstitutional oF inapplicable statute, their derivative claim for the negligent training, supervision and retention of Smith, must also fall. In the alternative, defendants argue that the relevant facts do not support negligent training, supervision and retention claims against NYCTA. First, NYCTA contends that such a negligent supervision and retention claim against an employer must be supported by facts demonstrating that the employer had reason to know of the subject employee’s propensity to engage in the wrongful conduct. NYCTA argues that there is no evidence of this employee’s propensity to engage in this manner of conduct, therefore, NYCTA is not subject to liability under a negligent supervision or retention theory. Defendants acknowledge that Smith has not had an ideal record of satisfactorily interacting with subway customers; however, defendants assert that there is no record of Smith ever making transphobic or similar comments directed 6 Civil Rights Law § 40 (as amended by L 1913, ch 265), 6against NYCTA customers prior to the instant action. Defendants state that Smith was the subject of only two customer complaints that were later substantiated and these two complaints did not involve any statement or conduct concerning gender or sex. Defendants conclude that since any prior customer complaints about Smith did not involve allegations of the same behavior that plaintiff alleges, Smith's negative work history is insufficient to sustain plaintif's negligent supervision or retention derivative claims against the NYCTA, Defendants further argue that plaintiff's negligent supervision or retention claims must be dismissed because a sustainable negligent supervision or retention claims must be based on underlying tortious conduct by the subject employee. Here, the underlying conduct is not tortious but is instead the alleged violation of a statute. Defendants imply thatthe underlying this court may not properly sustain a negligent based solely on Smith’s violation behavior must be a common-law tort, therefore, supervision or retention claim against the employer, NYCTé of § 8-107 (4) (a). Lastly, defendants assert that plaintiff's allegation that NYCTA negligently trained Smith lacks merit. Defendants maintain that a sustainable negligent training claim against an employer requires proof that the employer had reason to know of the employee's propensity to engage in the specific conduct that plaintiff alleges. Moreover, defendants state that a sustainable negligent training claim requires proof that inadequate training led to the alleged wrong. Defendants argue plaintiff has no such proof, there is no evidence prior to the date of the alleged incident that any NYCTA employee ever made transphobie comments to any NYCTA customer. Additionally, the NYCTA has long-established rules and an employee training program requiring its employees to treat all customers with courtesy and respect, Defendants also claim that the NYCTA disciplines employees who violate these conduct rules. Defendants assert there is no evidence to support plaintiff’s negligent training derivative claim against the NYCTA. For these reasons, defendants conclude that this court should grant their motion for summary judgment and dismiss the complaint. Arguments Advanced by Plaintiff In opposition, plaintiff indicates that the Restoration Act of 2005 directs courts to construe provisions of the New York City Human Rights Law independently of State and Federal provisions, even when State and Federal provisions have comparable language. Plaintiff further 7claims that the Restoration Act directs courts to construe the New York City Human Rights Law as broadly as possible with a vision toward social justice and that courts have been directed to treat the New York City Human Rights Law as providing additional civil rights protections above ” of State and Federal civil rights provisions. Plaintiff concludes that defendants? the “Aloo: attempt to suggest otherwise lacks merit Noxt, plaintiff notes that her testimony and that of Smith conflict on every significant issue, therefore, giving rise to issues of fact requiring that this court deny defendants’ motion for summary judgment, In opposition to defendants’ argument that Smith’s acts and statements did not implicate plaintiff's use of the subway, plaintiff states that Smith refused to assist her with her defective MetroCard, a customer service that an NYCTA employee should provide, Plaintiff reiterates that Smith, instead of providing customer service, attacked her gender identity and barraged her with transphobic epithets. Plaintiff argues that pursuant to § 8-107 (4) (a), even an indirect statement that conveys a discriminatory animus is considered an unlawful discriminatory practice. More specifically, plaintiff argues that the fact that Smith did not explicitly refer to plaintiffs use of the subway while uttering discriminatory comments is not a defense to § 8-107 (4) (a). Here, plaintiff claims that the statements made by Smith (while working as an NYCTA station agent) were implicit statements indicating that plaintiff was unweleome on NYCTA’s subways because she was a transgender woman, Therefore, making Smith’s statements actionable under § 8-107 (4) (@). Plaintiff claims that a statutory provision is unconstitutionally vague only if the subject provision is incapable of a constitutional application. Further, that a “complained-of" provision will be upheld so long as a reasonable person of ordinary intelligence would know that the proscribed conduct is prohibited by law. Plaintiff asserts that § 8-107 (4) (a) has a straightforward, understandable prohibition as applied to the instant action: an employee of a public accommodation cannot act in a manner that is discriminatory towards the public, suggesting that a member of the public is unwelcome. Plaintiff contends that defendants’ arguments suggesting § 8-107 (4) (a) is vague are without merit. Moreover, plaintiff maintains § that 8-107 (4) (a) is not an unconstitutional restriction on free speech, Plaintiff refers to the fact that certain categories of speech are not entitled to constitutional protection and suggests that transphobic comments are among those incidents of speech that are not protected. Plaintiff also notes that courts have sustained regulations on 8speech against constitutional challenges if the regulations are aimed at secondary effects of speech and further important social values. Plaintiff refers to § 8-107 (4) (a) as content-neutral and not restrictive of ideas or political beliefs, rather a provision to regulate discriminatory conduct, therefore, constitutional. Plaintiff rejects the contention that § 8-107 (4) (a) applies only to supervisory or managerial employees or applies only to systemic discrimination and points to the plain language of § 8-107 (4) (2), which renders it applicable to the instant matter. Plaintiff argues that § 8-107 (4) (a) expressly applies to an “employee” as well as a “proprietor” or “manager” and the alleged incidents occurred while Smith was uniformed and on duty with the NYCTA. Plaintiff reasons that the inclusion of “employee” in § 8-107 (4) (a) indicates that the provision applies to situations where the alleged discrimination is outside the scope of the employee's duty and further argues that any other interpretation would defeat the broad anti- discrimination purpose of § 8-107 (4) (a). In plaintiff's derivative causes of action, she argues that as an employer, NYCTA, is liable for its negligent supervision, retention and training of its employee Smith and that contrary to defendants’ contentions, Smith’s NYCTA work history contains evidence of 16 incidents of mistreating subway customers since 1991. Plaintiff indicates that this work history constitutes adequate notice of underlying employee propensity for rude and belligerent conduct toward customers coupled with the fuct that defendant employer was on notice of the first incident, constitutes negligent supervision, retention and training, Plaintiff furthers the argument that such a propensity may be established by merely a single incident of brutal or egregious employee behavior. Plaintiff states that her formal complaint to NYCTA of the first incident (which allegedly happened on July 16, 2006) serves as sufficient notice of Smith's propensity; therefore, the NYCTA is subject to liability for Smith’s alleged behavior on July 25, 2006. Plaintiff challenges defendants’ contention that a negligent supervision, retention or training claim must be based on a common-law tort, Plaintiff indicates that although the underlying employee wrong is often described as “tortious,” various courts have sustained employer liability for employee violations of statutes as opposed to common-law duties. Plaintiff notes that some of these courts have sustained employer liability based on employee sexual harassment, discrimination and violations of the provisions of the New York City Human Rights Law. Plaintiff points out that in 2003, the definition of “gender” in the New York City Human 9Rights Law was amended to include (among other things) gender identity. Plaintiff claims that discovery in the instant matter has demonstrated that despite this added civil rights protection for transgender persons, the NYCTA did not train its employees about transgender sensitivity until after Smith’s alleged behavior. Plaintiff concludes that this constitutes sufficient evidence fending to show that the NYCTA has negligently trained its employees with respect to the civil rights of transgender subway customers. For these reasons, plaintiff argues that the instant motion for summary judgment should be denied, Arguments Advanced by City of New York ‘The City filed an Order to Show Cause, without opposition, for leave to intervene in this action upon notice on or about April 14, 2010 that there was a constitutional challenge to § 8 107 (4) (a). In support of its position that the statute is constitutional, the City argues that § 8- 107 (4) (a) targets only discriminatory conduct and the secondary effects of discriminatory conduct, and exerts a small burden on g narrow class of speech which does not warrant heightened scrutiny. In support of this argument, the City claims that the provision is a content= riminatory acts in public neutral regulation of conduct, a regulation prohibiting di accommodations. Further, that such a regulation is constitutional so Jong as it furthers an important government interest that is unrelated to suppression of free expression and does not burden speech more than necessary. The City asserts that the regulation is a permissible restriction on the time, place and manner of speech. Such restrictions are constitutional so long as they are narrowly tailored, based on a significant government interest other than the content of speech, and do not foreclose other channels of communication, The City also claims that restrictions targeting secondary effects of speech, without reference to the content of speech, are considered justified. The City argues § 8-107 (4) (a) meets these standards in the instant matter. They point out that the interest of government combating invidious discrimination is a compelling interest, which exceeds the “important” or “significant” government interest thresholds noted above. Further, § 8-107 (4) (a) regulates only conduct involving discrimination ion may be used to communicate in public accommodations; any other channel of communi discriminatory ideas or beliefs. For these reasons, the City concludes that § 8-107 (4) (a) is a permissible regulation of discriminatory conduct according to free speech doctrine. The City disagrees with defendants’ contention that the New York City Human Rights Law is preempted by or inconsistent with State law. In support, the City first notes appellate 10authority upholding the application of the State Human Rights Law to discriminatory epithets in the public accommodation context. The City rejects defendants” arguments concerning the scope 8-107 (4) (a), noting that State anti-discrimination provisions are not limited to supervisory or managerial employees; the City concludes thet a City of New York provision may permissibly hold non-managerial employees, such as Smith, liable for discrimination in the public accommodation context. Similarly, the City rejects defendants” suggestion that § 8-107 (4) (a) should not apply here because Smith's alleged conduct was outside the scope of employment, as evidenced by the NYCTA’s civility and anti-discrimination employee policies. The City submits that this argument lacks merit; if'an employer's intemal code of employee conduct were sufficient to preclude employer liability, the New York City Human Rights Law would essentially be rendered unenforceable. For these reasons, the City concludes that this court should deny defendants’ motion for summary judgment Discussion 1. Standards for Summary Judgment Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 49% [2005}; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974)). However, a motion for summary judgment will be granted if, upon al the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 10 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980)), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 NY 2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562) ‘The proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562; see also Winegrad v New York Univ, Med Cr, 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp,, 3 NY2d 395, 404 [1957}). The motion should be granted only when itis clear that no material and triable issue of fact is presented (Di Mena & Sons v City of New York, 301 NY 118 [1950)). Ifthe Wexistence of an issue of fact is even arguable, summary judgment must be denied (Museums at Stony Brooky Vil. of Patchogue Fire Dept., 146 AD2d 572 {1989}. Also, parties opposing a ‘motion for summary judgment are entitled to every favorable inference that may be drawn ftom the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]; see also Abseizer v Kramer, 265 AD2d 356 [1999]; Gibson v American Export Asbrandisen Lines, 125 AD2d 65, 74 [1987]; Sirychalski v Mekus, 54 AD2d 1068, 1069 [1976]; MeLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]). Indeed, the trial court is required to accept the opponents’ contentions as true and resolve all inferences in the manner ‘most favorable to opponents (Henderson v City of New York, 178 AD2¢ 129, 130 (1991}) Lastly, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit ofa claim or defense, rather than by pointing to gaps in the an opponent’s proof (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410 [2004]; Kats v PRO Form Fitness,3 AD3d 474, 475 [2004]; Kucera y Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]). 2. The City of New York's Motion for Leave to Intervene ‘The City received notice, pursuant to CPLR 1012 (b) (2) and General City Law § 19 (2), of a dispute about whether Administrative Code of the City of New York § 8-107 (4) (a) is unconstitutional. Consequently, the City moves, pursuant to CPLR 1012 (b) (2), for leave to intervene in this action and support the consttutionality of § 8-107 (4) (a). In applicable par, CPLR 1012 (“Intervention as of right; notice to attomey-general, city, county, town or village where constitutionality in issue”) states as follows: “(b) Notice to attomey-general, city, county, town or village where constitutionality in issue, 2. When the constitutionality of a local law, ordinance, rule or regulation ofa city, county, town or village is involved in an action to which the city, county, town or ion is not a party, such city, county, town or village village that enacted the pro shall be notified and permitted to intervene in support of its constitutionality.” Accordingly, the motion must be granted, since CPLR 1012 (b) (2) commands that the city “shall be... permitted to intervene” (see also People v Stepter, 1S NY3d 792 [2010] {summarily 12granting motion of City of New York pursuant to CPLR 1012 (b) (2)]). Moreover, no party opposes the motion. For these reasons, the City’s motion for leave to intervene is granted. 3. Statutory Interpretation of Administrative Code of the City of New York § 8-107 (4) (a) Administrative Code of the City of New York § 8-107 (“Unlawful discriminatory practices”) states, in applicable part, as follows: “4, Public accommodations. a. It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or pereeived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to make any declaration, publish, circulate, issue, display, post or mail any written or printed communication, notice of advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place or provider shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status or that the patronage or custom of any person belonging to, purporting to be, or perceived to be, of any particular race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status is unwelcome, objectionable or not acceptable, desired or solicited.” i] Rights Restoration Act of 2005 (Local Law No 85 of City of New Also, the Local York § | et seq. [2005]}—referred to as the Restoration Act—states that: “The provisions of [the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of 13this title, have been so construed” (Jd. at § 7). The Restoration Act was enacted to “notif{y] courts that (a) they had to be aware that some provisions of the [New York City Human Rights Law] were textually distinct from its state and federal counterparts, (b) all provisions of the [New York City Human Rights Law] required independent construction to accomplish the law’s uniquely broad purposes, and (c) cases that had failed to respect these differences were being legislatively overruled” (Williams v Now York City Hows, Auth. 61 AD3d 62, 67-68 [2009], lv denied 13 NY3d 702 [2009] feraphasis in original) The Restoration Act and its subsequent interpretation compel this court to reject defendants’ arguments advocating a limited construction of § 8-107 (4) (a). One example of tbese contentions is one based on State Div, of Human Rights v McHarris Gift Co. (11 AD2A 813 [1979], afd 52 NY2d 813 [1980)). In McFlarris Gift, the Appellate Division interpreted Executive Law § 296 (which has substantially the same language as § 8-107 [4] [a}) as inapplicable to a gift shop that “displayed for sale novelties which demeaned persons of Polish extraction” (id) and thus dismissed a complaint alleging discrimination; the Court of Appeals affirmed for the reasons given by the Appellate Division (52 NY2d at 814), Even assuming that MeHarris Gift is not sufficiently distinguishable and thus erstwhile controlling, itis clear that in the wake of the Restoration Act, this court's interpretation of § 8 107 (4) (a) cannot be limited solely by interpretations of similar State or Federal anti- discrimination provisions. Indeed, “interpretations of state or federal provisions worded similarly to {the New York City Human Rights Law] may be used as aids in interpretation only to the extent that the counterpart provisions are viewed ‘asa floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise” (Williams, 61 AD3d at 66, 67, citing Restoration Act § 7). ‘Thus, any contention by defendant that an interpretation ofa similarly-worded but different provision than § 8-107 (4) (a) controls in this matter lacks merit. 4. Scope and Applicability of Administrative Code of the City of New York § 8-107 (4) (a) This court rejects defendants’ contention that § 8-107 (4) (a) does not apply to the instant ‘matter because Smith is a non-supervisory employee. The provision applies to any “owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation” (emphasis added). There is no authority limiting the language “agent or 14employee of any place or provider of public accommodation” to only supervisors or managers; indeed, this court js not permitted to reject the literal meaning of “agent” or “employee” unless it is obvious that the literal reading does not reflect legislative intent (see e.g. A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 580-581 [1996], citing Matter of Schinasi, 277 NY 252, 259 [1938], rearg denied 278 NY 624 [1938]. Thus, since it is undisputed that Smith was an NYCTA employee at the relevant times, she is an “employee” for the purposes of § 8-107 (4) (a). Moreover, there is no merit to defendants’ suggestion that § 8-107 (4) (a) only applies to employees acting in conformance with employer policy...This suggestion leads to an absurd, result, specifically that a provider of public accommodation could completely escape liability under § 8-107 (4) (a) simply by creating a civility or anti-discrimination policy (ef Zakrzewska v New School, 14 NY3d 469, 479-480 [2010] {noting that in certain instances an employer can mitigate civil penalties and punitive damages for acts of employee by showing affirmative anti-discrimination undertaking). Further, this court rejects defendants" contention that § 8-107 (4) (a) does not apply to the instant matter because Smith’s conduct did not explicitly involve plaintiff's patronage of the subway system. First, giving plaintiff the benefit of every favorable inference (see e.g. Cortale v Educational Testing Serv., 251 AD2d 528, 531 (1998}), plaintiff's testimony indicates that Smith used transphobic insults after plaintiff requested help with her MetroCard, ‘Thus; a reasonable trier of fact could conclude that Smith's behavior was discriminatory conduct suggesting that Plaintiff's use of the subway was unwelcome, triggering § 8-107 (4) (a): Second, given the broad goals of the New York City Human Rights Law, and the language in § 8-107 (4) (a) prohibiting conduct “to the effect that” a transgender person (among others) is not welcome at the subway, it is not dispositive that Smith did not make an explicit statement that plaintiff was not welcome in the subway system because of her gender identity.. For the foregoing reasons, § 8-107 (4) (a) applies to the alleged incident. 5. Negligent Retention, Supervision and Training Generally speaking, an employer may be subject to liability for the tortious acts of its employees under theories of negligent hiring, negligent retention, and negligent supervision (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997}; see also Hall » ‘Smathers, 240 NY 486 [1925]). As defendants correctly note, a necessary element of such 15causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury (Id; see also Ghaffari v North Rockland Cent, Sch. Dist, 23 AD3d 342, 343-344 [2005)). In the instant matter, and giving plaintiff the benefit of every favorable inference (see eg Cortale, 251 AD2d at 531), there is an issue of fact as to whether NYCTA should have known of Smith's propensity to engage in uncivil conduct. Although defendants state that there are only two substantiated subway customer complaints alleging discourteous behavior by Smith, plaintiff notes that there are in fact 16 complaints against Smith that warranted internal NYCTA investigations. Moreover, plaintiff correctly notes that some of these investigations have been characterized as unsubstantiated when, to the contrary, the investigations were merely discontinued without compelling reason, Indeed, there is evidence that the NYCTA simply ifies the finding of a triable issue of failed to respond to complaints about Smith; this alone ju: fact (see e.g. Mercer v State of New York, 125 AD2d 376, 377 (1986)). For these reasons, a trier of fact could properly conclude that Smith had a long history of mistreating subway customers.” Additionally, and again giving plaintiff the benefit of every favorable inference (see e.g Cortale, 251 AD2d at 531), discovery in this action has suggested that the NYCTA had not trained Smith (or any of its employees) adequately. There is no indication that the NYCTA reacted to the amendment § 8-102 (23) (Cefining “gender") to include gender identity as a prohibited basis for discrimination in the public accommodation context, A reasonable trier of fact could reasonably conclude that by failing to instruct Smith about sensitivity to gender identity, NYCTA's failure to train proximately caused the alleged incident. Defendants also suggest that negligent retention, supervision or training liability will not attach unless the underlying employee conduct is “tortious”, a common-law tort. Here defendants claim the violation of § 8-107 (4) (a) is not a common-law tort and thus does not suffice as “tortious” employee conduct for negligent retention or supervision liability. This 7 Defendants note that none of Smith's negative customer history contains incidents of disrimination agains transgender persons (or any other form of civil rights discrimination), Defendants" contention however that plaintiff must show a history of precisely analogous conduct lacks merit. Indeed, in .1. v Cty of New York O86 AD2d 243 (2001), the Appellate Division simply tated that “fan employer may be lable forthe negligent hiring and retention ofan emplayee when it knew or should have known of the employee's propensity to commit injury” (la. at 245). The term “injury” is unqualified, suggesting that, contrary to defendants” argument, the alleged propensity need not be limited to exactly the same type of injury, 16argument fails, in Primeau v Town of Amherst (303 AD2d 1035 [2003]), the Appellate Division suggested that the requirement of underlying employee wrongful behavior is met when “the employee is individually liable for a tort or guilty of a claimed wrong against a third person” (Jd at 1036 [emphasis added). Moreover, throughout this action, plaintiff has consistently predicated negligence claims against NYCTA on Smith’s alleged violation of § 8-107 (4) (a) and not a common-law tort, The Appellate Division hes already noted the legal sufficiency of plaintiff's negligent supervision, retention, and training claims predicated on Smith’s alleged violation of § 8-107 (4) (a) (Bumpus 47 AD3d at 654). Nothing that occurred in the discovery phase indicates that such negligent supervision, retention, and training claims cannot be sustained by the underlying violation of the New York City Human Rights Law. For these reasons, this court denies dismissal of plaintiff's negligent retention, negligent supervision and negligent training claims against NYCTA. 6. Constitutionality of Administrative Code of the City of New York § 8-107 (4) (a) This court rejects defendants’ arguments that § 8-107 (4) (a) is unconstitutionally vague (or subject to an interpretation which would render it unconstitutionally vague). The standard is well-defined; “[a} statute, or a regulation, is “unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and itis written in a manner that permits or encourages arbitrary or discriminatory enforcement” (Ulster Home Care, Inc. v Vacco, 96 NY2d 505, 509 [2001], citing People v Foley, 94 NY2d 668, 681 [2000] and People v Nelson, 69 NY2d 302, 307 [1987]). Moreover, and again contrary to defendants’ contentions, a court reviewing a vagueness challenge should consider the subject provision as applied to the aggrieved litigant; hypothetical applications of the subject provision are not pertinent to the issue of vagueness (see e.g. People v Taylor, 9 NY3d 129, 150-151 [2007]; Ulster Home Care, 96 NY2d at 510 [“Plaintiffs should have been required to show that the regulation was unconstitutional as applied to them. When a person's conduct falls within the proscriptions of a regulation, ‘a vagueness challenge must be addressed to the facts before the court’ ” (citations omitted)}; People v Nelson, 69 NY2d 302, 308 [1987] [“if the actions of the * Defendants* arguments, in essence, concede that § 8-107 (4) (a) is not facially invalid; defendants do not argue that the provision is “incapable of any valid application” (Siefel v Thompson, 415 US 452, 474 [1974)) 7defendants are plainly within the ambit of the statute, the court will not strain to imagine ‘marginal situations in which the application of the statute is not so clear”; Village of Hoffman Estates v Flipside, Hoffinan Estates, Inc., 455 US 489, 495 [1982] [*A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law”)). Lastly, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity” (United States v Williams, 553 US 285, 304 [2008], quoting Ward v Rock Against Racism, 491 US 781, 794 [1989)). Here, the alleged behavior of Smith was “clearly proscribed” (id). Stripped to its applicable parts, § 8-107 (4) (a) states that “[i}t shall be an unlawful discriminatory practice for any... employee of any place or provider of public accommodation, because of the actual or perceived... gender, . . . of any person. . directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to make any declaration, ... to the effect that any of the accommodations, advantages, facilities and privileges of any such place or provider shall be refused, withheld from or denied to any person on account of... gender, .. or that the patronage or custom of any person belonging to, purporting to be, or perceived to be, of any ... gender, ... is unwelcome, objectionable or not acceptable, desired or solicited.” Simply put, § 8-107 (4) (a) prohibits acts or statements, by people employed in a public accommodation context, that would suggest a customer is unwelcome because of her (among other things) gender. Since this prohibition ‘unquestionably applies to Smith’s alleged behavior, defendants may not challenge § 8-107 (4) (a) on the vagueness ground based on other hypothetical situations in which § 8-107 (4) (a) may apply (Village of Hoffinan Estates, 455 US at 494-495). Nor is this court persuaded that § 8-107 (4) (a) is unconstitutionally overbroad. The Supreme Court of the United States has stated that “a law may be overtumed as impermissibly overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep” (Washington State Grange v Washington State Republican Party, 552 US 442, 449 n 6 [2008] [intemal quotations omitted], quoting New York v Ferber, 458 US 747, 769-771 [1982] and Broadrick v Oklahoma, 413 US 601, 615 [1973)) 18Here, defendants cannot demonstrate thet a substantial number of applications of § 8-107 (4) (a) are unconstitutional. First, as the City cozreetly notes, “[i}avidious private discrimination may be characterized as a form of exercising feeedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections” (Hishon v King d ‘Spalding, 467 US 69, 78 [1984], quoting Norwood v Harrison, 413 US 455, 470 [1973]) Therefore, since § 8-107 (4) (a) prohibits only discriminatory acts and speech against potential customers of public accommodation, and since such discrimination is not afforded constitutional Protection, the provision does not implicate a “substantial number” (Washington State Grange, 552 US at 449 n 6) of unconstitutional applications. Moreover, this court must respect the interplay between the alleged discriminatory speech and the public service functions of the NYCTA and Smith, Although a different context, in Pappas » Giuliani (290 F3d 143 [2002}, cert denied sub nom Pappas v Bloomberg, 539 US 143 {2003)), the United States Court of Appeals, Second Circuit, found no constitutional protection for a City of New York policeman who anonymously sought charitable contributions with ig anti-black and anti-semitic messages” (Id. at 145). ‘The New York City “printed fliers convey Police Department subsequently terminated the plaintiff in Pappas; he then filed an action claiming that his termination violated his rights under the First Amendment of the United States Constitution. The Court of Appeals, however, found that the dissemination of bigoted material risked harm to the public service mission of the police department (Jd. at 147-148). Applying the balancing test articulated in Pickering v Board of Education (391 US 563 [1968)), the Court of Appeals found that Pappas’ right to free speech was not violated (Pappas, 290 F3d at 151) Pappas is analogous to the instant matter, which involves an employee of a public service company who allegedly engaged in bigoted behavior, properly attributed to her. ‘Therefore, as in Pappas, the prohibition of bigoted behavior in the public accommodation context contained in § 8-107 (4) (a) does not violate the constitutional guarantee of free speech.? ° Defendants have asked this court to consider the recent Supreme Court decision of United States v Stevens (_US_, 130 8 Ct 1577 (2010}), This coutt’s reading of Stevens does not affect this decision and order Although Stevens involved fee speech doctrine, it essentially stood for the proposition that states and the Listed States are not tree to create new categories of unprotected speech (Id. at 1986). This court likewise does not purport to create a category of unprotected speech. Defendants argue that Stevens suggests that plantfP interpretation of § 8-107 (4) (a) renders it overbroad; for the reasons given above, this court disagrees, 19In sum, this court rejects the constitutional challenges to § 8-107 (4) (a). Along with the reasons given above, the court notes that the State of New York and its subdivisions, such as the City, have a compelling interest in combating invidious discrimination (New York State Club Assn, Ine. v City of New York, 487 US 1, 14 n 5 [1988)), suggesting that § 8-107 (4) (a) would survive the most exacting scrutiny. Moreover, § 8-107 (4) (a) is sustainable as a regulation of a transit system, which is not a “First Amendment forum” (see e.g. Lehman v City of Shaker Heights, 418 US 298, 302-304 [1974]). Lastly, the subway system may be considered a limited public forum; therefore, “[rJeasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest” (Rosenberger v Rector & Visitors of Univ. of Va., 515 US 819, $29 [1995}). Under the Rosenberger test, § 8-107 (4) (a) survives constitutional scrutiny. As stated above, combating invidious discrimination is a compelling interest (New York State Club Assn, Inc., 487 US at 14 n 5). Also, the restriction contained in § 8-107 (4) (a) is narrowly tailored—it applies only in the public accommodation context, and only to agents of public accommodation companies who engage in discriminatory conduct that suggest victims of bias are unwelcome: For the foregoing reasons, this court rejects defendants’ constitutional challenges to § 8-107 (4) @). Conclusion The motion of defendants New York City Transit Authority and Lorna Smith (sued as “Jane Doc”) for summary judgment dismissing the complaint is denied, The foregoing constitutes the decision and order of the court, eee ge ee inte Kenneth P. Sherman December 29, 2010 Justice Supreme Court Hon. Kenneth P. Sherman, JSC 20