Ballet May Be Liable

A lawsuit against the New York City Ballet has been sustained by the Appellate Division for the First Judicial Department

We are asked on this appeal to address the scope and pleading standard of Administrative Code of City of NY § 10-180, which prohibits the disclosure of intimate images without the consent of their subject. Also at issue is whether plaintiff, Alexandra Waterbury, has sufficiently alleged that defendant New York City Ballet, Inc. (NYCB) knew of its employees’ — principal ballet dancers’ — harmful propensities, failed to take appropriate action, and caused her harm. At the motion to dismiss stage, we find that Waterbury has stated a cause of action for violation of the Administrative Code and for the negligent hiring and retention of defendant Chase Finlay as a principal dancer by NYCB.

A partial dissent by Justice Friedman

The alleged misconduct of the individual defendants — the surreptitious electronic dissemination of intimate photographic images made by defendant Chase Finlay of his former girlfriend, plaintiff Alexandra Waterbury — is outrageous and reprehensible, as well as actionable under the common law and under the New York City Administrative Code. On those points, there is no disagreement among the members of this bench. The sole issue on which the majority and I disagree is whether plaintiff alleges any cognizable ground for suit against defendant New York City Ballet, Inc. (NYCB), the cultural institution that, at the relevant time, employed Finlay and two other individual defendants as dancers, and with which the fourth individual defendant was affiliated as a “junior board member.”

The sole reason the majority gives for modifying Supreme Court’s order to reinstate the complaint as against NYCB is that the individual defendants electronically shared the images while they were physically present on NYCB’s premises for work or other legitimate organizational activities. Critically, there is no allegation that the wrongdoing was perpetrated using NYCB’s equipment or resources, whether computers, mobile phones, corporate email accounts, messaging networks or any other institutional asset. And, plainly, the reprehensible behavior alleged in the complaint was devoid of any corporate purpose, having been driven by the individual defendants’ unworthy personal motivations. Nonetheless, for the majority, that this private online misconduct happened to have been perpetrated while the tortfeasors were present on NYCB’s premises, combined with NYCB’s alleged awareness of the existence of a crude “fraternity-like atmosphere” among its male dancers, suffices (if proven) to hold NYCB liable to plaintiff, on the theory that NYCB negligently hired, supervised or retained the employees in question. I disagree.

(Mike Frisch)