Opinion
13160 Index No. 160194/16 Case No. 2020-02242
02-18-2021
Michael J. BISTREICH, Plaintiff–Respondent, v. The CITY OF NEW YORK et al., Defendants–Appellants.
James E. Johnson, Corporation Counsel, New York ( Scott Shorr of counsel), for appellants. Schwartz Perry & Heller, LLP, New York ( Brian Heller of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York ( Scott Shorr of counsel), for appellants.
Schwartz Perry & Heller, LLP, New York ( Brian Heller of counsel), for respondent.
Renwick, J.P., Kern, Singh, Shulman, JJ.
Order, Supreme Court, New York County (Verna L. Saunders, J.), entered September 16, 2019, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the aiding and abetting claim asserted against defendant Gentile individually, unanimously reversed, on the law, without costs, and the motion granted.
The aiding and abetting claim must be dismissed because there is no evidence of a "community of purpose" between Gentile and plaintiff's coworkers ( see Schindler v. Plaza Constr. LLC, 154 A.D.3d 495, 496, 61 N.Y.S.3d 489 [1st Dept. 2017] [internal quotation marks omitted]). There is no indication that Gentile was aware of any of the coworkers' actions, and an aiding and abetting claim cannot be based on an individual's own conduct ( Hardwick v. Auriemma, 116 A.D.3d 465, 468, 983 N.Y.S.2d 509 [1st Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936031 [2014] ). To the extent Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995) and its progeny hold otherwise, we decline to follow them.
We decline to make any determination of any claims of individual liability against Gentile that have not yet been raised in the complaint.