This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
An employer may be held responsible for negligently keeping or supervising an employee only if the harm is connected to the job, for example through the employer’s premises, property, or resources. Here, a divided First Department dismissed a claim against the company that produced The Cosby Show, holding that the plaintiff’s alleged visit to the show’s set, at Cosby’s invitation, was not a sufficient connection to the assaults she alleged.
The case
- Court
- Appellate Division, First Department
- Decided
- October 8, 2026
- Case
- M.P. v Cosby
- Citation
- 2026 NY Slip Op 05859
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that William Cosby, Jr. drugged and sexually assaulted her on multiple occasions from 1987 to 1990. She sued him and others, including The Carsey-Werner Company, LLC (CW), which employed him as the star of The Cosby Show, claiming that CW negligently hired, retained, and supervised him. She alleged that CW knew or should have known of his conduct toward women, and that she first met him on the show’s set in 1987, at his invitation. The Supreme Court, New York County, denied CW’s motion to dismiss that claim, and CW appealed.
The holding
The First Department reversed, three justices to two, and dismissed the complaint against CW. The majority held that where a plaintiff “merely alleges that Cosby used defendant’s property or resources to impress and possibly bait her,” rather than as “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” (2026 NY Slip Op 05859, *2). The two dissenting justices would have kept the claim, finding that 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” (id. at *5).
What changed
The majority applied the Court of Appeals’ test in Moore Charitable Found. v PJT Partners, Inc. (40 NY3d 150) and its own earlier decision on a similar claim against CW, B.B. v Cosby (245 AD3d 498). The dissent wrote that on this point “[t]he Court of Appeals has held precisely to the contrary” (id. at *6). The court was divided on how far Moore reaches.
What it means
- For a claim that an employer negligently retained or supervised an employee, as the court quoted Moore, the complaint must allege that the employer knew or should have known of the employee’s propensity for the kind of conduct that caused the harm, that it knew or should have known it could and should control the employee, and that the employee acted “on the employer’s premises or using property or resources available to the employee only through their status as an employee.”
- The court divided over that last element. For the majority, using the employer’s set and the employee’s status to gain trust was not enough; the premises or resources must be where, or how, the harmful conduct itself took place.
- This decision addresses only the claim against CW. It does not decide the claims against Cosby, and no court has decided whether the allegations are true.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
We note that this was a 3-2 decision, and both sides relied on the same Court of Appeals decision. In our view, the majority drew a sensible line, and an everyday example may help explain it. Suppose a company gives an employee a car for work, and he uses that car to impress someone he later harms somewhere else. We do not think the company should be responsible just because its car helped him make an impression. It may be a different question if he used the company’s car, office, or email to carry out the harm itself, as the employee in the Court of Appeals’ Moore case did when he used his employer’s email, documents, and letterhead to carry out a fraud. Still, when an appellate court is this closely divided, the law in an area may not be settled, so this may not be the last we hear from this plaintiff, who may still have a claim or an avenue to appeal. We have no knowledge of whether that will happen as of the date of this writing. Claims that an employer should have controlled a dangerous employee can arise whenever an employee hurts someone, not only in abuse cases. We believe two lessons follow. 1. For anyone hurt by an employee, the details of where and how the harm happened, and what the employee used to do it, can matter a great deal, so it is important to get legal advice promptly. 2. For lawyers, those facts should be pleaded specifically from the start. In these cases, the connection to the job can decide the claim.
Topics
Court: First Department. Year: 2026. Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 8, 2026. Posted October 8, 2026.
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