Opinion
525963
07-05-2018
Brendan MCCARTHY, Appellant, v. MARIO ENTERPRISES, INC., Doing Business as The Stone Lounge, et al., Respondents.
McGivney Kluger & Cook, PC, New York City (Michael Rawlinson of counsel), for appellant. Pinsky Law Group PLLC, Syracuse (Bradley M. Pinsky of counsel), for respondents.
McGivney Kluger & Cook, PC, New York City (Michael Rawlinson of counsel), for appellant.
Pinsky Law Group PLLC, Syracuse (Bradley M. Pinsky of counsel), for respondents.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
McCarthy, J.P.
Appeal from an order of the Supreme Court (Rumsey, J.), entered March 3, 2017 in Cortland County, which granted defendants' motion to dismiss the complaint.
Defendant Mario Enterprises, Inc. operates a bar, defendant The Stone Lounge, which employed defendant Eric Bonawitz as a bouncer. In 2014, plaintiff, then 19 years old, was at the bar when Bonawitz punched him in the face, causing injuries. More than two years later, plaintiff commenced this action alleging that defendants breached their duty to keep the premises safe and negligently hired and supervised employees, specifically Bonawitz. Defendants filed a pre-answer motion to dismiss the complaint, which Supreme Court granted. Plaintiff appeals.
On appeal, plaintiff does not challenge the portion of Supreme Court's order dismissing the complaint against Bonawitz.
Supreme Court did not err in dismissing the first cause of action. That cause of action, which purportedly alleges negligence in failing to maintain a safe premises, could be interpreted as alleging that Mario Enterprises and The Stone Lounge (hereinafter collectively referred to as the employer defendants) were responsible for Bonawitz's actions under a theory of respondent superior, or that they were negligent in their staffing and training of security personnel. Regarding the former interpretation, Bonawitz's actions as alleged in the complaint were intentional and, therefore, any claim based on them was barred by the one-year statute of limitations (see CPLR 215[3] ). "Plaintiff cannot avoid the statute of limitations by reframing his intentional tort claims as a claim based on breach of the duty to keep the premises safe" ( Kerzhner v. G4S Govt. Solutions, Inc., 138 A.D.3d 564, 564, 30 N.Y.S.3d 620 [2016] ; see Palker v. MacDougal Rest., Inc., 96 A.D.3d 629, 630, 947 N.Y.S.2d 465 [2012] ; see also Ramautar v. Wainfeld, 273 A.D.2d 214, 214, 709 N.Y.S.2d 838 [2000] ). The latter interpretation of this cause of action would render those allegations duplicative of the second cause of action. Thus, the first cause of action was properly dismissed.
The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, "[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training" ( Ambroise v. United Parcel Serv. of Am., Inc., 143 A.D.3d 929, 931, 40 N.Y.S.3d 444 [2016] ; see Ashley v. City of New York, 7 A.D.3d 742, 743, 779 N.Y.S.2d 502 [2004] ; Rossetti v. Board of Educ. of Schalmont Cent. School Dist., 277 A.D.2d 668, 670, 716 N.Y.S.2d 460 [2000] ). The rationale for this rule "is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training" ( Rossetti v. Board of Educ. of Schalmont Cent. School Dist., 277 A.D.2d at 670, 716 N.Y.S.2d 460 [internal quotation marks and citation omitted] ). As is apparent from these cases, however, this rule applies where the employee is alleged to have acted negligently, not intentionally.
Plaintiff has adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others (see Kerzhner v. G4S Govt. Solutions, Inc., 138 A.D.3d at 565, 30 N.Y.S.3d 620 ; Green v. Emmanuel African M.E. Church, 278 A.D.2d 132, 132, 718 N.Y.S.2d 324 [2000] ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 [1997], cert denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 [1997], lv dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997] ). Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee's wrongful conduct was intentional (see Green v. Emmanuel African M.E. Church, 278 A.D.2d at 132–133, 718 N.Y.S.2d 324 ). Thus, plaintiff's allegations of negligence were timely asserted within the applicable three-year statute of limitations (see CPLR 214[5] ; Smith v. Conway Stores, Inc., 131 A.D.3d 1040, 1040, 16 N.Y.S.3d 475 [2015] ).
Plaintiff did not directly allege that Bonawitz was acting within the scope of his employment when he punched plaintiff. Even if such allegations were included, allegations of vicarious liability, though incompatible with a claim of negligent hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories in the alternative (see CPLR 3014 ; Kerzhner v. G4S Govt. Solutions, Inc., 138 A.D.3d at 565, 30 N.Y.S.3d 620 ). Hence, construing the complaint liberally, accepting the facts alleged as true and affording plaintiff every favorable inference (see Graven v. Children's Home R.T.F., Inc., 152 A.D.3d 1152, 1153, 60 N.Y.S.3d 556 [2017] ), the second cause of action should not have been dismissed. Finally, we reject defendants' argument that Supreme Court should have dismissed the complaint pursuant to CPLR 3211(a)(4) (see Rinzler v. Rinzler, 97 A.D.3d 215, 217, 947 N.Y.S.2d 844 [2012] ).
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion to dismiss the second cause of action; motion denied to that extent and matter remitted to the Supreme Court to permit defendants Mario Enterprises, Inc. and The Stone Lounge to serve an answer within 20 days of the date of this Court's decision; and, as so modified, affirmed.
Egan Jr., Lynch, Devine and Aarons, JJ., concur.