Opinion
120656/03.
Decided January 4, 2006.
Defendant Julfikar Choudhury (also known as Julfiqar A. Choudhury) (Choudhury) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against him.
This litigation arises as a result of an accident that occurred on 2nd Avenue at East 87th Street, in Manhattan, on October 15,2003, at approximately 7:50 P.M.
Plaintiffs, Barbara J. Cirone and William J. Cirone (the Cirones) were pedestrians, crossing at the aforesaid location, when they were allegedly struck by a bicyclist, Moinul "Sam" Alam, an 11-year old who was making a delivery pursuant to his job at Choudhury's restaurant (defendant Navana Restaurant Inc., Mumtaz Navana Restaurant Inc., d/b/a Mumtaz [herein Mumtaz]).
Choudhury argues that all of his actions, as they impact the Cirones, were in the furtherance of Mumtaz's business, and, thus, the complaint, as against him, must be dismissed. In support of this proposition defendants cite a number of cases that deal with standards for imposing liability on persons in control of a corporation ( i.e. piercing the corporate veil).
Cooperstein v. Patrician Estates Inc., 97 AD2d 426 (2nd Dept 1983); Katz v. NY Tint Taxi Corp., 213 AD2d 599 (2nd Dept 1995); Trustco Bank v. Precision Enters., 234 AD2d 665 (3rd Dept 1996); Maggio v. Becca Constr. Co., 229 AD2d 426 (2nd Dept 1996); Palisades Office Group Ltd. v. Kwilecki, 233 AD2d 490 (2nd Dept 1996).
The Cirones argue that they are not attempting to pierce the corporate veil, but rather, to hold Choudhury liable for a personal tort committed by him. It is, as the Cirones point out, established that "corporate directors and officers who commit or participate in the commission of a tort, even if it be for the corporations's benefit, can indeed be held personally liable for any ensuing injuries." Van Wormer v. McCasland Truck Ctr., 163 AD2d 632, 635 (3rd Dept 1990); see also Widlitz v. Scher, 148 AD2d 530 (2nd Dept 1989).
Giving the Cirones, as nonmovants on the motion for summary judgment, the benefit of every favorable inference that may be drawn from the pleadings and affidavits ( Myers v. Fir Cab Corp., 64 NY2d 806), they seem to claim that Choudhury committed torts: (i) in negligently hiring Alam; (ii) in employing him in violation of New York Labor laws; and (iii) in failing to properly train Alam to make food deliveries.
A necessary element in establishing a cause of action for negligent hiring is to show that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury." State Farm Ins. Co. v. Central Parking Sys., Inc., 18 AD3d 859, 860 (2nd Dept 2005).
Here, the Cirones have not even pleaded that Choudhury knew, or should have known, that Alam was prone to riding a bicycle in a dangerous way. Moreover, the general rule is that "where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training." Talavera v. Arbit, 18 AD3d 738, 738-739 (2nd Dept 2005) (citations omitted) (emphasis added).
An exception to this general principle exists where a plaintiff seeks punitive damages for gross negligence in hiring. Id. at 738-739; accord Watson v. Strack, 5 AD3d 1067, 1068 (4th Dept 2004). Punitive damages should be awarded only if "the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 US 408, 419 (2003). There are no allegations in the complaint that suggest that Choudhury's behavior is so morally reprehensible as to warrant punitive damages. This conclusion is underscored by the complaint's failure to seek punitive damages. As a matter of law, the exception noted in Talavera ( 18 AD3d at 738-739) is not implicated here, and the claim against Choudhury for negligent hiring is dismissed.
With respect to the breach of New York Labor law in hiring Alam, a minor, an unexcused breach is some evidence of negligence to be considered along with the other evidence in the case, but there must be a showing that the violation of New York Labor law was the proximate cause of the accident. Homin v. Cleveland Whitehill Co., 281 NY 484, 487-488 (1939); see also Betterly v. Estate of Silver, 266 AD2d 30, 31 (1st Dept 1999); Braithwaite v. Equitable Life Assur. Soc. of US, 232 AD2d 352, 353 (2nd Dept 1996) (in order to recover, plaintiff must show how the defendant's breach of duty caused or contributed to the accident); Phass v. MacClenathen, 274 App Div 535, 538 (3rd Dept 1948); 79 NY Jur 2d Negligence § 71; compare 8B NY Jur 2d Automobiles § 907 (violation of administrative rule or local ordinance is evidence of negligence only if the violation was the proximate cause of the accident). Here, the Cirones have stated no causal connection between Choudhury's election to hire a minor, and their injuries.
Finally, the allegation that Choudhury had an obligation to train Alam to make food deliveries is specious on its face. Riding a bicycle is a common, ordinary, activity that requires no special training. See Camarda v. Summit Homes, 233 AD2d 285, 286 (2nd Dept 1996) (employer not liable for failure to train employee where injury arose from common and ordinary activity); Stephen v. Sico Inc., 237 AD2d 709, 710 (3rd Dept 1997).
Further, a bicycle itself is not a patently dangerous instrumentality. Santalucia v. County of Broome, 205 AD2d 969, 970-971 (3rd Dept 1994) (bicycle, under the circumstances, not a dangerous instrument as a matter of law). Choudhury's failure to train Alam to ride a bicycle was not the direct or proximate cause of the Cirones' injuries, but rather, Alam's allegedly reckless use of the bicycle led to the injuries. Compare Phass v. MacClenathen, 274 App Div at 538 (presumption of negligence for failure to obtain driving license must be supported, not assumed).
Ultimately, despite protestations to the contrary, the complaint attempts to bypass the corporate form of Mumtaz, and hold Choudhury responsible for the injuries to the Cirones, caused by an employee of Mumtaz, in furtherance of Mumtaz's business. Within limitations, the law allows for the incorporation of a business for the very purpose of allowing proprietors to avoid personal liability for business related activities. Walkovszky v. Carlton, 18 NY2d 414, 417 (1966). Plaintiffs have not made any showing that the actions of Choudhury expose him to personal liability.
The complaint generally fails to advance any tenable tort theory that applies to Choudhury's duties, obligations, or actions. ( Compare Van Wormer v. McCasland Truck Ctr. ( 163 AD2d at 635), where the plaintiffs establish the intentional tort of wrongful repossession in support of their attempt to impose personal liability on the defendant.)
As Choudhury has established his entitlement to judgment as a matter of law ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853), and plaintiffs have failed to establish the existence of material issues of fact which require a trial of the action ( Zuckerman v. City of New York, 49 NY2d 557, 562), the complaint, as against Choudhury, is dismissed.
Accordingly, it is hereby
ORDERED that the motion of defendant Julfikar Choudhury a/k/a Julfiqar A. Choudhury, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against him is granted, and the complaint is hereby severed and dismissed as against said defendant, and the Clerk is directed to enter judgment in favor of said defendant; and it is further
ORDERED that the remainder of the action shall continue.
Counsel for plaintiff and defendant shall appear for a preliminary conference at I.A. Part 15, Room 335, 60 Centre Street, New York, NY on March 10, 2006 at 11:00 am.
This memorandum opinion constitutes the decision and order of the court.