Picard v. Cosby

Picard v Cosby 2026 NY Slip Op 05612 October 1, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Morganne Picard, Plaintiff-Respondent, v William Cosby, Jr., et al., Defendants The Carsey-Werner Company, LLC, Defendant-Appellant. Decided and Entered: October 01, 2026 Index No. 952063/23|Appeal No. 6638|Case No. 2025-05213| Before: Manzanet-Daniels, J.P., Kennedy, Friedman, Gesmer, Rosado, JJ. Moses & Singer LLP, New York (Kimberly Klein of counsel), for appellant. Hasapidis Law Offices, Scarsdale (Annette Hasapidis of counsel), for respondent. Gesmer, J. (Dissenting), [*1] Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about July 25, 2025, which, to the extent appealed from, denied the motion of defendant Carsey-Werner Company, LLC (CW) to dismiss the negligent hiring, retention, and supervision claim, reversed, on the law, without costs, the motion granted, and the complaint against CW dismissed. The Clerk is directed to enter judgment accordingly. To establish a claim of negligence, a plaintiff must show that there was a duty owed to the plaintiff by the defendant, that there was a breach of that duty, and that there was an injury proximately resulting therefrom (Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157 [2023]). Further, "[w]here the negligence claim relates to an employer's retention and supervision of an employee, the complaint must include allegations that: (1) the employer had actual or constructive knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm; (2) the employer knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control; and (3) the employee engaged in tortious conduct on the employer's premises or using property or resources available to the employee only through their status as an employee, including intellectual property and confidential information" (id.). The allegations of the complaint against CW are not meaningfully distinguishable from the allegations that were made in support of the negligent hiring, retention, and supervision claim against CW — based on similar alleged sexual misconduct by the same individual defendant, Bill Cosby — in B.B. v Cosby (245 AD3d 498 [1st Dept 2026]). In B.B., we recently held that notwithstanding the plaintiff's allegations that CW had notice of Cosby's propensities, there was not a sufficient alleged nexus between CW's employment of Cosby as star of The Cosby Show and Cosby's alleged assaults on the plaintiff to support imposition of liability upon CW where the plaintiff "did not allege [in her complaint] that CW was responsible for introducing Cosby to plaintiff or fostering her relationship with him, that the sexual assaults took place at the subject television studio or other CW premises, that Cosby used tangible CW property in the commission of his assaults, that [the] plaintiff ever actually auditioned or worked for the show, visited the Studio, or met with any CW employees (apart from Cosby), that CW had any other reason to know of plaintiff's existence, or that any CW-provided premises, property, or resources (including CW employees) were used to facilitate or cover up the assaults on [the] plaintiff" (id. at 499-500). That we pointed out the absence of all of the foregoing factors in B.B. does not mean that the presence of any one of those factors would suffice, by itself, to establish a nexus. [*2] In B.B., we implicitly rejected the argument that abstract notions such as authority and influence bestowed upon a celebrity, standing alone, would qualify as an employer's "property" or "resources" within the meaning of Moore (id.). In response, plaintiff here argues that one of defendant's tangible resources — the studio — was instrumental to Cosby's grooming process and in gaining plaintiff's trust.However, as in B.B., there is no allegation here that any CW personnel, other than Cosby himself, ever met or spoke to plaintiff or had any idea that she existed. And while plaintiff, unlike the B.B. plaintiff, alleges that she visited the set of the television studio on one occasion at Cosby's invitation in 1987, she does not allege that Cosby assaulted or even touched her on CW's premises or that he used any CW property or resources in committing any tortious act (see Moore, 40 NY3d at 157). Thus, as plaintiff merely alleges that Cosby used defendant's property or resources to impress and possibly bait her — as opposed to the situs or instrumentality for committing independently tortious or illegal conduct— it is simply not enough to sustain the negligent hiring, retention and supervision claim against CW. Plaintiff places much reliance on her one visit to the Cosby Show studio, asserting that as a direct result of that visit, Cosby was endowed with the authority to lure her into her world, and to drug and assault her. Further, plaintiff attempts to contrast the facts underlying her complaint with the facts presented in B.B., where the plaintiff never came to the studio and yet alleged to have been assaulted and harmed by Cosby in a strikingly similar way. We thus, for the avoidance of doubt, find that B.B. cannot be meaningfully distinguished from this case, and that it is not the number of visits to the studio, but rather the nature of those visits that may be potentially relevant to whether the causal nexus between defendant's property or resources and plaintiff's harm has been established. [*3] The cases relied upon by plaintiff do not compel a different result, as each involved the use of the defendants' property or resources to commit an independently tortious or illegal act. For example, in Waterbury v New York City Ballet, Inc. (205 AD3d 154 [1st Dept 2022]), the plaintiff was not a stranger to the corporate defendant but was a student at the corporate defendant's official ballet school and the individual defendants (employees of the corporate defendant) allegedly committed the tortious acts of sharing intimate images of the plaintiff during work hours and on work premises (see 205 AD3d at 157). Also inapposite is Moore,in which the individual tortfeasor, an employee of the defendant investment bank, used the investment bank's email account, documents, and letterhead to perpetrate a fraud that, standing alone, constituted independently illegal activity (Moore, 40 NY3d at 155, 163). Here, by contrast, plaintiff cannot point to any independently tortious or illegal conduct that occurred while she was at the studio or while Cosby was otherwise using the studio for his benefit. In the end, the sole factor that distinguishes the present complaint from the negligent hiring, retention, and supervision claim against CW that we dismissed in B.B. is the allegation in this case that plaintiff visited Cosby at CW's television studio. But plaintiff does not allege that anything remotely illegal or tortious occurred during this one innocuous studio visit. Given that plaintiff had no relationship with CW and no tortious act was committed upon CW's premises (cf. Waterbury, 205 AD3d at 157), and given that Cosby is not alleged to have directly used any CW resources in committing his assaults (cf. Moore, 40 NY3d at 155, 163), the bare allegations that Cosby met with plaintiff at CW's television studio and used his status as the star of a CW-produced television show to impress her — neither of which constitutes independently tortious or illegal activity — does not give rise to a sufficient nexus between Cosby's employment by CW and his alleged assaults on plaintiff to support making CW liable for Cosby's reprehensible conduct. All concur except Kennedy and Gesmer, JJ. who dissent in a separate memorandum by Gesmer, J. as follows: Gesmer, J. (Dissenting), In my view, plaintiff has adequately pleaded a cause of action for negligent hiring, retention, and supervision against defendant The Carsey-Werner Company, LLC (CW). Accordingly, I would affirm the motion court's denial of CW's motion to dismiss that cause of action and I respectfully dissent. On a motion to dismiss for failure to state a cause of action, the court must accept as true the facts alleged in the complaint, accord plaintiff "every possible favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory" (C. R. v Episcopal Diocese of New York, 248 AD3d 1, 8 [1st Dept 2025] [internal quotation marks omitted]). [*4] A claim for negligence must allege "a duty owed to the plaintiff by the defendant, a breach of that duty, and injury proximately resulting therefrom" (Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157 [2023] [citations omitted]; see also C.R., 248 AD3d at 8). A complaint adequately states a cause of action for negligent hiring, retention, or supervision where it alleges that (1) the employer had actual or constructive knowledge of the employee's propensity to engage in tortious conduct; (2) the employer knew or should have known of the necessity, and the employer's ability, to control the employee; and (3) the employee engaged in tortious behavior on or using the employer's resources, premises, or other property (Moore, 40 NY3d at 158). The notice element is adequately pleaded where the complaint alleges either actual knowledge or that the employer "should have known" of the employee's propensity to engage in tortious behavior, including where such behavior was "generally known in the community" (id. [internal quotation marks omitted]). The element of proximate cause is satisfied for the purposes of a motion to dismiss when the pleading alleges that the employer knows or should have known of the employee's propensity for tortious conduct but fails to reasonably supervise and control the employee, and, as a result, the employee harms the plaintiff using the employer's premises, resources, or other property (id. at 162). Here, plaintiff alleges that she and defendant Cosby first met in or around 1987, at Cosby's invitation, on the set of The Cosby Show. The production of the show and its set were "owned, operated, controlled, managed, and/or supervised" by CW. At that meeting, Cosby told her that The Cosby Show wanted to hire her to appear, and potentially sing, on a special episode.FN1 Plaintiff alleges that, on "multiple occasions" from 1987 to 1990, Cosby provided and encouraged her to drink beverages that caused her to pass out. She later came to understand that Cosby had drugged the drinks he gave her and that he sexually assaulted her while she was unconscious. Plaintiff further alleges that CW knew or should have known of Cosby's propensities because he "openly and notoriously" mistreated and sexually abused and assaulted women "employed by, and/or visiting The Cosby Show," and his "propensity to mistreat and sexually abuse women was known by [CW's] employees, servants, and agents" (see Moore, 40 NY3d at 158). This allegation sufficiently pleads that defendant had notice, since, as we have held, there is no statutory requirement to plead negligent hiring, retention, or supervision with specificity (C. R., 248 AD3d at 10). Moreover, at the prediscovery stage of litigation, relevant information "is in the sole possession and control" of the party seeking dismissal (id.; see also J.K. v City of New York, 223 AD3d 565, 566 [1st Dept 2024]). [*5] I would find that plaintiff also adequately alleges a nexus between Cosby's alleged assaults and CW's actions or omissions. The "nexus" requirement in a negligent hiring, retention, and supervision cause of action is satisfied when the plaintiff alleges that the employer's negligence is a proximate cause of plaintiff's injury (Moore, 40 NY3d at 162; Waterbury v New York City Ballet, Inc., 205 AD3d 154, 162 [1st Dept 2022]). A pleading may meet the nexus requirement for purposes of defeating a motion to dismiss when it alleges that an employee caused harm using property or resources provided by the employer (Moore, 40 NY3d at 162; Waterbury, 205 AD3d at 162) or that the employer failed to prevent foreseeable harm in the workplace (Waterbury, 205 AD3d at 162). Here, Cosby invited plaintiff to visit the set, using CW's premises as a backdrop for dangling his claim that The Cosby Show wanted to hire her to appear, and possibly sing, on a special episode. The complaint alleges that CW "owned, operated, managed, controlled, and/or supervised the production of . . . The Cosby Show," as well as the facility where it was filmed. The complaint further states that CW "facilitated" Cosby's sexual assaults by "bestowing Cosby with power or the appearance of power at The Cosby Show . . . providing Cosby with resources and staff to aid or cover up [his sexual assaults], failing to protect the women involved in The Cosby Show, including actresses hired, offered, or seeking roles with The Cosby Show and visitors to The Cosby Show; [and] encouraging women to meet with Cosby alone and without adequate supervision." Plaintiff's allegations that Cosby invited her to the set and told her that The Cosby Show wanted to hire her distinguish this case from B.B. v Cosby (245 AD3d 498 [1st Dept 2026]), in which there was no allegation "that [the] plaintiff ever actually auditioned for The Cosby Show, visited the Studio, or that any CW-provided premises, property, or resources . . . were used to facilitate or cover up the assaults on [the] plaintiff" (id. at 499-500). Accordingly, in B.B. we found that "Cosby's alleged assaults on [the] plaintiff were too attenuated from the employment relationship" between CW and Cosby to support a cause of action for negligent hiring, retention, and supervision against CW (id. at 500 [internal quotation marks omitted]). In contrast, here, Cosby's alleged use of the set to gain plaintiff's trust provides the nexus between Cosby's employment by CW and his alleged assaults; that nexus was not present in B.B. The allegation that Cosby groomed and preyed on plaintiff by inviting her to the set, and claiming that The Cosby Show wanted to hire plaintiff, satisfies the pleading requirement that Cosby "us[ed] property or resources available to [him] only through [his] status as an employee" (Moore, 40 NY3d at 157). [*6] I disagree with my colleagues in the majority that plaintiff's allegations that Cosby used the set to impress and bait her "is simply not enough to sustain the negligent hiring, retention, and supervision claim." The Court of Appeals has held precisely to the contrary. In Moore, the named defendant, Caspersen, "solicited [plaintiff] to participate in a financing arrangement related to one of defendants' legitimate business deals, supported by defendants' genuine documentation and information [including company letterhead, documents, and Caspersen's company email address], which he was given access to by defendants as part of his employment. We hold that these allegations support the existence of a duty on the part of defendants to non-negligently supervise Caspersen for plaintiff's benefit" (Moore, 40 NY3d at 163). There was no allegation that the plaintiff in Moore or its representatives ever set foot on the corporate defendants' premises or interacted with the corporate defendants or other employees. Caspersen's alleged use of his company email, the corporate defendants' letterhead, and information about the corporate defendants' legitimate business transactions to impress and bait plaintiff and lend an air of legitimacy to his fraudulent intentions was sufficient to plead a cause of action for negligent hiring, retention, and supervision. That is no less true here as to plaintiff's allegations that Cosby used The Cosby Show set and potential work on the show to lure plaintiff in so that he could obtain her trust and assault her.FN2 The majority notes that plaintiff does not allege that she had a relationship with CW. However, the Court of Appeals has held that a relationship between the employer and plaintiff is not required in a negligent hiring, retention, or supervision claim (Moore, 40 NY3d at 161 ["to the extent defendants argue that a special relationship or privity between plaintiff and employer is a necessary element of a negligent supervision claim, we expressly reject any such requirement"]; see also Waterbury, 205 AD3d at 161 ["Liability for negligent hiring and retention does not require a special relationship between the defendant and the alleged victim"]). [*7] To the extent that the majority is concerned about holding employers liable for the conduct of their employees occurring outside of the workplace but with the aid of the employer's premises, property, or resources, the employer can exercise control in such situations. The employer can set rules for an employee's conduct during his employment and can control what occurs on its premises and in connection with the use of its other property or resources. That is precisely why an employer may be liable where it has notice of an employee's tortious proclivities but nevertheless fails to control the employee's tortious conduct that involves the use of the employer's premises, other property, or resources and causes harm to others (see Moore, 40 NY3d at 153 [reversing dismissal of negligent hiring, supervision and retention claim where employer gave employee "significant authority," authorizing him to solicit potential clients as the "primary or sole point of contact" with the company, and employee used company resources in furtherance of fraud]; Waterbury, 205 AD3d at 163 [noting "the impact of the work environment on employee behavior, the control that employers exercise over their business premises, and the responsibility that comes with such control"]). Here, the complaint explicitly suggests what CW could have done to prevent the harm alleged. Plaintiff alleges that, despite notice of Cosby's harassment and assault of women, CW permitted Cosby to meet with women alone or without adequate supervision in connection with The Cosby Show, and failed to "enforce rules" to protect women "employed by, seeking employment at, or visiting The Cosby Show." It was certainly within the ambit of CW's control to have prohibited Cosby from meeting with women alone or without adequate supervision on CW's premises or in connection with The Cosby Show. Accordingly, I respectfully dissent and would affirm the motion court. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026 Footnotes Footnote 1 I agree with my colleagues in the majority that "it is not the number of visits to the studio, but rather the nature of those visits that may be potentially relevant to whether the causal nexus between defendant's property or resources and plaintiff's harm has been established" in this case. The nature of plaintiff's visit to the studio was connected to Cosby's employment, as Cosby told her that The Cosby Show wanted to hire her to appear on the show. Accordingly, as discussed further below, in contrast to the complaint in B.B., plaintiff here has adequately pleaded a nexus between Cosby's alleged use of CW's premises to give plaintiff a false sense of safety and CW's failure to adequately supervise Cosby despite its alleged knowledge that Cosby "was sexually abusing, preying on, grooming, assaulting, and/or battering women," including women "associated with, employed by, and/or visiting" CW's premises. Footnote 2 I also disagree with my colleagues in the majority when they state that our decision in B.B. "rejected the argument that abstract notions such as authority and influence bestowed upon a celebrity, standing alone, would qualify as an employer's 'property' or 'resources.'" First, there is no discussion of this concept in B.B. whatsoever. Rather, we held in B.B. only that the complaint failed to allege a nexus between CW's acts or omissions and Cosby's alleged assaults on plaintiff because none of Cosby's alleged interactions with the plaintiff had any connection with CW premises or other property or resources. Thus, the interactions alleged "were 'too attenuated from the employment relationship' [between Cosby and CW] to support holding CW liable" (B.B., 245 AD3d at 500 [quoting Moore, 40 NY3d at 162]). Second, the majority's argument is contrary to the Court of Appeals' holding in Moore. The majority argues that an employer can never be found liable for the acts of an employee who causes harm by abusing the position and authority granted by the employer. In contrast, Moore held that the individual defendant's employer owed a duty to third parties to properly supervise their employee to whom the employer had given "significant authority" to solicit and engage with potential clients, and who often acted as the "primary or sole point of contact," using the employer's brand names and resources (40 NY3d at 153, 163).