Opinion
03-15-2017
Mark SALEM, Plaintiff–Respondent, v. MacDOUGAL REST. INC., doing business as Off the Wagon, Defendant–Appellant, Trimel A. Roberts, et al., Defendants.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Steven H. Rosenfeld of counsel), for appellant. Jason Levine, New York, for respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Steven H. Rosenfeld of counsel), for appellant.
Jason Levine, New York, for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered June 21, 2016, which, inter alia, denied the motion of defendant MacDougal Restaurant Inc. d/b/a Off the Wagon (defendant) for summary judgment dismissing plaintiff's respondeat superior claim as against it, unanimously affirmed, without costs.
Plaintiff was assaulted by a security guard/bouncer in the employ of defendant after plaintiff, who had been denied admittance to defendant's bar because of perceived intoxication, grabbed the baseball cap from the bouncer's head. Less than 30 seconds elapsed between plaintiff taking the cap and the bouncer throwing plaintiff to the ground, which occurred approximately 10 feet from the entrance to defendant's bar. On this record, it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of his employment at the time of the assault (see e.g. Bilias v. Gaslight, Inc., 100 A.D.3d 533, 954 N.Y.S.2d 88 [1st Dept.2012], affg. 2011 N.Y. Slip Op. 32700[U], 2011 WL 5059087 [Sup.Ct., N.Y. County 2011] ).
SWEENY, J.P., RENWICK, MAZZARELLI, MANZANET–DANIELS, JJ., concur.