However, in his affidavit opposing the motion for summary judgment, plaintiff alleged unequivocally that, when he called Kenney, he "was informed that she had moved to a new business and was given a telephone number to call her at Sils." This evidence creates a classic question of credibility — to be resolved by a trier of fact — as to whether Kenney was employed by Sils or, at the very least, whether a principal-agent relationship existed between Kenney and Sils at the time the insurance policy was procured, such that Sils may be vicariously liable for Kenney's actions ( see e.g. Pyramid Champlain Co. v Brosseau Co., 267 AD2d 539, 544, lv denied 94 NY2d 760; see also Fils-Aime v Ryder TRS, Inc., 40 AD3d 917, 917-918). Notably, plaintiffs argue that their claim against Sils is not based on a theory of vicarious liability but, rather, upon Sils' direct negligence in handling the insurance application.

No evidence suggests that any of the students in the Skills II class was acting as the Institute's agent at the time of the spill and Tenay's fall. See, e.g., Fils-Aime v. Ryder TRS, Inc., 837 N.Y.S.2d 199, 200, 40 A.D.3d 917, 917-18 (N.Y.App.Div. 2007) (finding a genuine issue of material fact with respect to whether student was acting as university's agent while driving to obtain laboratory equipment that had been donated to the university). As for whether the Institute had actual notice of the wet floor, there was no evidence in the record that contradicted Heywood's deposition testimony that he was unaware of the wet floor condition.

New York courts have repeatedly held volunteers to be agents where the common law requirements for agency were met. See, e.g., Fils–Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 837 N.Y.S.2d 199, 200 (2d Dep't 2007) ; Robinson v. Downs, 39 A.D.3d 1250, 834 N.Y.S.2d 770, 771 (4th Dep't 2007). Because the SAC adequately pleads that Quietman7 acted as Bleeping's agent, he does not qualify as a third-party ICP under the CDA so as to entitle Bleeping to immunity.

"A principal-agent relationship may be established by evidence of the 'consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act,' even where the agent is acting as a volunteer." Art Fin. Partners, LLC v. Christie's Inc. , 58 A.D.3d 469, 870 N.Y.S.2d 331, 333 (N.Y. App. Div. 2009) (quoting Fils-Aime v. Ryder TRS, Inc. , 40 A.D.3d 917, 837 N.Y.S.2d 199, 200 (N.Y. App. Div. 2007) ); accordVillazon v. Prudential Health Care Plan, Inc. , 843 So.2d 842, 853 n. 10 (Fla. 2003). Once an agency relationship is established, the "general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated."

News America Mklg., Inc. v. Lepage Bakeries, Inc., 16 A.D.3d 146, 791 N.Y.S.2d 80 (N.YApp.Div. 1st Dep't 2005). "Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency." Fils Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 918, 837 N.Y.S.2d 199 (N.Y.App.Div.2d Dep't 2007) (citations omitted). "The law is well settled that, unless obtained confidentially, knowledge acquired by an agent acting within the scope of his [or her] agency is imputed to his [or her] principal and the latter is bound by such knowledge."

Andrew M. Cuomo, Attorney General, New York City ( Richard Dearing, Barbara D. Underwood and Steven Wu of counsel), for appellant. I. The complaint states a claim for breach of the fiduciary duty of loyalty. ( Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder Steiner, 96 NY2d 300; People v Coventry First LLC, 13 NY3d 108; Fils-Aime v Ryder TRS, Inc., 40 AD3d 917; Hoffend Sons, Inc. v Rose Kiernan, Inc., 7 NY3d 152; NWE Corp. v Atomic Risk Mgt. of N.Y., Inc., 25 AD3d 349; Clinchy v Grandview Dairy, Inc., 283 NY 39; Lusenskas v Axelrod, 81 NY2d 300; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198; Rendeiro v State-Wide Ins. Co., 8 AD3d 253.) II. The complaint states a claim under Executive Law § 63 (12). ( State of New York v Rachmani Corp., 71 NY2d 718; People v Federated Radio Corp., 244 NY 33; Guggenheimer v Ginzburg, 43 NY2d 268; Matter of Lefkowitz v Bull Inv. Group, 46 AD2d 25; People v General Elec. Co., 302 AD2d 314; People v Concert Connection, 211 AD2d 310; State of New York v Sonifer Realty Corp., 212 AD2d 366; People v Coventry First LLC, 52 AD3d 345, 13 NY3d 108; Joannou v Blue Ridge Ins. Co., 289 AD2d 531; Petitt v Celebrity Cruises, Inc., 153 F Supp 2d 240.) Alan L. Kildow, of the Minnesota bar, admitted pro hac vice, Skadden, Arps, Slat

ideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d at 141-142 [citations and internal quotation marks omitted]; see Browne v Lyft, Inc., 219 A.D.3d 445, 446; Everett v Eastchester Police Dept., 127 A.D.3d 1131, 1132). Whether a complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, plays no part in the determination of a prediscovery motion to dismiss pursuant to CPLR 3211(a)(7) (see Maursky v Latham, 219 A.D.3d 473, 475; Lopez v Lozner & Mastropietro, P.C., 166 A.D.3d 871, 872-873). "Under the doctrine of respondeat superior, a principal is [vicariously] liable for the negligent acts committed by its agent within the scope of the agency" (Fils-Aime v Ryder TRS, Inc., 40 A.D.3d 917, 917-918; see Riviello v Waldron, 47 N.Y.2d 297, 302). "Agency is a legal relationship between a principal and an agent.

The Supreme Court also should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging, in effect, vicarious liability. Although the defendant failed to establish that Baker was not the defendant's employee at the time of the assault (see Fils-Aime v Ryder TRS, Inc., 40 A.D.3d 917, 917-918; Maurillo v Park Slope U-Haul, 194 A.D.2d 142, 146-147), to succeed against an employer for the tortious conduct of its employee under the doctrine of respondeat superior, the employee must have been acting in furtherance of the employer's business and within the scope of his or her employment (see N.X. v Cabrini Med. Ctr., 97 N.Y.2d 247, 251; Riviello v Waldron, 47 N.Y.2d 297, 302; Browne v Lyft, Inc., 219 A.D.3d 445, 446).

The plaintiff, however, failed to demonstrate, prima facie, that General Trading was also liable for breach of the lease agreement, as the principal for Grocery Leasing or otherwise through privity between the parties (see Fils-Aime v Ryder TRS, Inc., 40 A.D.3d 917, 918; Key Intl. Mfg. v Morse/Diesel, Inc., 142 A.D.2d 448, 454; see also Guangzhou Sanhua Plastic Co., Ltd. v Fine Line Prods. Corp., 165 A.D.3d 899, 901). Since the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability against General Trading, we need not consider the sufficiency of the defendants' opposition papers in relation thereto (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

The record, in other words, is simply unclear as to how much control JFS had or exercised over volunteers. Accordingly, as "questions of fact exist as to whether [Hyde] was acting as [JFS’] agent when the accident occurred," no party was entitled to summary judgment on the issue of JFS’ liability for Hyde's conduct ( Fils–Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 917–918, 837 N.Y.S.2d 199 [2d Dept. 2007] ; seePaterno v. Strimling, 107 A.D.3d at 1235, 968 N.Y.S.2d 643 ; Robinson v. Downs, 39 A.D.3d at 1251–1252, 834 N.Y.S.2d 770 ). It follows that Supreme Court properly denied the cross motion of JFS insofar as it sought summary judgment dismissing the complaint, but should have also denied that part of plaintiff's motion seeking summary judgment against JFS on the issue of liability.