Opinion
570499/05.
Decided May 3, 2006.
Defendant FJC Security Service, Inc., as limited by its brief, appeals from so much of an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered June 28, 2005, as denied its motion for summary judgment dismissing the complaint as against it. Plaintiffs, as limited by their brief, cross appeal from that portion of the aforesaid order which denied their motion to strike defendant-appellant's answer.
Order (Fernando Tapia, J.), entered June 28, 2005, modified to grant defendant's motion for summary judgment dismissing plaintiff's respondeat superior cause of action, and as modified, affirmed, without costs.
PRESENT: McCOOE, J.P., SCHOENFELD, J.
Following an assault and battery allegedly initiated without provocation by a security guard, plaintiffs commenced this action against several defendants, including the security guard's employer, defendant FJC Security Services, Inc., on the theories of respondeat superior and negligent hiring, training, supervision and retention.
Whether an employee's actions fall within the scope of his or her employment is ordinarily a question for the trier of fact, "except where there are no disputed facts and there is no question that the acts of the employee fell outside the scope of employment" ( Fainberg v. Dalton Kent Securities Group, Inc., 268 AD2d 247). Here, there is no question of fact as to whether defendant's employee was acting within the scope of his employment when he allegedly assaulted and ultimately "bit off" a portion of the first-named plaintiff's ear. The unprovoked assault was clearly outside the scope of any duties that the employee may have had as a security guard and did not further or serve any discernible business purpose ( see Wallace v. Gomez, 296 AD2d 306). Moreover, the alleged assault was such a wide departure from the normal method of performance as not to be reasonably anticipated by defendant ( see Flowers v. New York City Transit Authority, 267 AD2d 132, lv denied 94 NY2d 763). Indeed, from its very inception, the attack on plaintiffs was unconnected to, and in complete contravention, of the employee's responsibilities as a security guard ( see Dykes v. McRoberts Protective Agency, Inc., 256 AD2d 2). Accordingly, defendant cannot be held vicariously liable for its employee's tort.
In view of defendant's failure to retain the security guard's employment file, and since its deposition witness possessed no knowledge as to whether the security guard engaged in other violent conduct or incidents before or after he was hired, it failed to make a prima facie showing of its lack of notice of the employee's tortious propensity. Thus, summary judgment was properly denied on the negligent hiring and retention claims ( cf. Johnson v. City of New York, 18 AD3d 272; Doe v. Rohan, 17 AD3d 509, lv denied 2005 NY LEXIS 3379 [2005]).
There is no showing in the record that the loss of the security guard's personnel file created an insurmountable burden to plaintiff's case so as to warrant the drastic sanction of striking defendant's answer ( see Melendez v. City of New York, 2 AD3d 170). The issue of the imposition of an appropriate sanction is deferred to the trial court ( see General Business Law § 89-g).
This constitutes the decision and order of the court.