A private right of action allows a private plaintiff, in contrast to a government or a public agency, to bring an action seeking judicial relief from injuries caused by another's violation of a legal requirement such as a statute. Unless a law confers a private right of action, a cause of action brought by a private plaintiff based upon that law will be subject to dismissal pursuant to CPLR §3211(a)(7) for failing to state a cause of action.

Possessing a valid private right of action can be highly valuable to a plaintiff because recovery of damages might be had where none would otherwise be and because statutes establishing private right of actions often provide for recovery of compensatory damages and additional damages, such as punitive damages and attorney fees.

The establishment of a private right of action can be express or implied. A statute can confer within itself an express private right of action to enforce its own provisions or can confer one to a completely separate law. An example of the latter is the Dram Shop Act (General Obligations Law §§11-100 and 11-101) which creates a cause of action for certain delineated violations of Alcoholic Beverage Control Law §65(1), a statute that does not itself create a private cause of action. Heins v. Vanbourgondien, 2020 NY Slip Op 01334 (2d Dept. Feb. 26, 2020); Sherman by Sherman v. Robinson by Robinson, 80 N.Y.2d 483, 487 (1992).

Another statute that does not itself confer a private right of action yet can qualify as a predicate to an express right of action is Labor Law §27-a, known as the Public Employee Safety and Health Act (PESHA). That statute can serve as a predicate for actions brought pursuant to General Municipal Law §§205-a and 205-e by firefighters and police officers respectively. Gammons v. City of New York, 24 N.Y.3d 562, 570 (2014).

Recent court decisions demonstrate, however, that even where a private right of action is expressly provided, difficulties in maintaining it arise when the factual scenario does not fall squarely within the four corners of the law. In Hamlin v. PFNY, 179 A.D.3d 1027 (2d Dept. Jan. 29, 2020), the plaintiff's decedent, a patron of a health club, died after suffering a cardiac arrest in the restroom. The plaintiff alleged, among others, a causes of action pursuant to General Business Law §628 predicated upon an alleged violation of GBL §627-a.

GBL §628 provides for recovery of treble damages plus reasonable attorney fees resulting from a violation of GBL Article 30 (Health Club Services), which contains §627-a. That statute requires health clubs having five hundred or more members to have on the premises at least one automated external defibrillator (AED) and at least one employee or volunteer qualified to operate AEDs and to render cardiopulmonary resuscitation.

The defendants' motion to dismiss the GBL §628 cause of action was granted in reliance upon the 2013 Court of Appeals decision in Miglino v. Bally Total Fitness of Greater N.Y., which held that although GBL §627-a mandates the presence of an AED and someone qualified to use it, it does not create a duty to actually use an AED. 20 N.Y.3d 342, 349. The Hamlin court reasoned that since there is no duty to use an AED, the plaintiff's claim that a violation of GBL §627-a caused the decedent injury would be speculative under the circumstances.

Strict application of an express private right of action was also recently seen in the context of Public Health Law §2801-d in Schwartz v. Partridge, 179 AD3d 963 (2d Dept. Jan. 22, 2020). PHL §2801-d confers a private right of action on a nursing home patient who sustains injury caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, such as by PHL §2803-c(3) and 42 C.F.R. Part 483. This right of action is distinct from legal principles underpinning medical malpractice actions—deviation from good and accepted standards of medical practice. In order to give teeth to the legislation's purposes of deterring poor care in nursing homes, the law allows for the potential recovery of punitive damages and attorney fees in addition to recovery for compensatory damages. In Schwartz, summary judgment was granted to the defendant because the plaintiff's expert's affirmation offered only conclusory allegations of regulatory violations and relied upon facts that were contradicted or unsupported by the record.

Civil Rights I.aw §79-n, titled "Bias-related violence or intimidation; civil remedy," creates a private cause of action for victims of gender-motivated violent acts. Morrison v. Shalach, 2020 NY Slip Op 20050 (Sup. Ct. Feb. 25, 2020) arises out of a sexual and physical assault allegedly perpetrated on the plaintiff by an individual defendant while they were both students at defendant Sarah Lawrence College. The court dismissed the complaint as against the college, holding that plaintiff cannot maintain a claim against the college under Civil Rights I.aw §79-n because the statute creates a private cause of action for victims of gender-motivated violent acts only against individual perpetrators and not against an organizational entity.

Implied Private Right of Action

Establishing an implied right of action is no easy task. A private right of action will be implied only if a legislative intent to create such a right of action is fairly implied in the statutory provision and its legislative history. Haar v. Nationwide Mut. Fire Ins. Co., 34 N.Y.3d 224, 228 (2019). Factors to be considered in determining whether a private right of action may be fairly implied are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme. Id.; see, e.g., Oja v. Grand Ch. of Theta Chi Fraternity, 257 AD2d 924, 925 (3d Dept. 1999) (Penal Law §120.16 (Hazing in the First Degree) was held to confer an implied private right of action).

More recently, in Eskenazi-McGibney v. Connetquot Cent. School Dist., 169 A.D.3d 8, 9 (2d Dept. 2018), a student who was the victim of bullying and verbal and physical abuse, including death threats, unsuccessfully attempted to assert a private right of action against the school district under the Dignity for All Students Act (Education Law §10 et seq.; hereinafter DASA). He argued that DASA creates a private right of action in favor of a student injured by a school's failure to enforce its policies prohibiting discrimination and harassment. The court focused on the third prong of the aforementioned factors in holding that their review of DASA's legislative history showed that finding a private right of action under DASA would be inconsistent with the legislative scheme.

A DASA-based right of action was also asserted in Collazo v. Hicksville Union Free School District, 65 Misc.3d 268, 271 (Sup. Ct. 2019), where a high school student, after being bullied for years due to his appearance and mannerisms resulting from scoliosis, apparently committed suicide. When faced with a motion to dismiss the DASA right of action, the plaintiff cross-moved to discontinue her DASA cause of action and to amend the complaint to add new causes of action including under §504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, federal laws that expressly confer a private right of action. The court granted the motion to amend the complaint insofar as the Rehabilitation Act and ADA were concerned, finding that plaintiff, whom defendant conceded qualified as a disabled person under the those statutes, had stated a claim to recover damages under those laws.

PHL §2805-q was held not to confer a private right of action to a hospital patient's life partner in Delisi v. Memorial Sloan-Kettering Cancer Cntr., 2020 NY Slip Op 30350(U) (Sup. Ct. Feb. 4, 2020). PHL §2805-q provides that "[n]o domestic partner…shall be denied any rights of visitation of his or her domestic partner…when such rights are accorded to spouses and next-of-kin at any hospital, nursing home or health care facility." Plaintiff alleged that the defendant hospital illegally refused to allow plaintiff to visit her life partner while he was hospitalized there prior to his death.

The court dismissed the PHL §2805-q cause of action finding that the statute does not expressly permit recovery by a domestic partner for damages based on the alleged improper denial of visitation rights and that none may be judicially engrafted. The court contrasted §2805-q with PHL §§2801-d(1) and 2803-c(3) which explicitly give patients the right to sue for damages.

Conclusion

Navigating through statutes and legislative history to successfully plead a viable private right of action in a personal injury or wrongful death case can be time-consuming and ultimately disappointing. But the ability to recover enhanced damages or even any damages at all through a private right of action may make such efforts worthwhile and explains why there are a multitude of recent judicial decisions on this topic in many areas of law.

Ira S. Slavit is a member of Levine & Slavit, PLLC of Manhattan and Mineola, N.Y. He is on the Board of Directors of the Nassau County Bar Association and is chair of the NCBA's Plaintiff's Personal Injury Committee.