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Saks Inc., the owner of Saks Fifth Avenue department stores and Elizabeth Arden Salons Inc., must continue to defend a civil action over a masseur operating in one of their shops who allegedly sexually assaulted a patron, a New York Supreme Court justice has ruled. In a strongly worded decision denying a defense motion for summary judgment, Justice Louis B. York ruled in Hart v. Saks Inc., 101550/00, that plaintiff Brenda Hart had a case against the two companies for negligent hiring and retention of the masseur. Justice York also said he was “disturbed by some of the allegations in defendants’ papers.” Hart has alleged she was sexually assaulted by masseur Joseph Weger, who is also a defendant, in the Elizabeth Arden Salon housed in the Saks Fifth Avenue store in January 1999. According to Saks and Elizabeth Arden, Weger was not employed by them, but by a company called Teyf it hired as an independent contractor. “Plaintiff states in her opposing affidavit that the name of Elizabeth Arden is displayed all over the store,” York wrote. “When she paid for the massage, she paid at the Saks’ register. It was always her understanding that Saks and Elizabeth Arden operated the Salon. The name ‘Teyf’ was nowhere to be seen.” York stated in his decision that he was disturbed by apparent discrepancies in the motion papers filed by Saks and Elizabeth Arden. The plaintiff and defendants filed court papers with different versions of how many times Hart visited Weger. However, a defense allegation that Hart also brought her daughter to Weger, and that the allegation was made in a prior defense affidavit, was not supported by the evidence, according to the judge. “I read the affidavit about three times and could find no such allegation,” Justice York wrote. To help resolve the matter, Justice York permitted Hart to file a sur-reply to counter the defense claims. That document alerted the judge to the fact that the purported independent licensing contract between Elizabeth Arden and Teyf was dated three days after the assault allegedly took place, thereby further calling into question the status of Teyf as an independent contractor at the time of the alleged assault. “Because of the apparent discrepancies, I allowed the sur-reply of the plaintiff to be considered,” wrote York. “I’m glad I did, because until the sur-reply pointed it out, I had overlooked the gap between the date of the alleged sexual attack and the execution date of the contract with Teyf.” OTHER ISSUES Other triable issues of fact cited by York was whether Elizabeth Arden had the obligation to do a background search on Weger before he was hired. “The defendants claimed that Weger was checked out by Teyf, but other than their own conclusory statements, have failed to offer the slightest shred of evidence backing up their contention,” the decision stated. “Plaintiff’s sur-reply, which the court permitted to be filed, indicates that, in its licensing agreement with Elizabeth Arden Salons, it reserved to itself the responsibility to do a search of Weger’s background. It hasn’t produced such a search.” In addition to dismissing their summary judgment motion, York ordered $100 in motion costs to be paid by Saks and Elizabeth Arden. Hart is represented in the case by Manhattan-based sole practitioner Joel K. Peister. The defendants are represented by Scott P. Taylor of Manhattan’s Quirk and Bakalor.

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