Opinion
February 16, 2000
Appeals from Order of Supreme Court, Wayne County, Sirkin, J. — Summary Judgment.
PRESENT: GREEN, A. P. J., HAYES, PIGOTT, JR., AND SCUDDER, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
On August 18, 1995, Park Way Studios International, Inc. and its division, Glamour Magic (defendants), hired defendant Michael Hurd to conduct photo sessions at various locations. Plaintiffs allege that, during a photo session in Marion, New York, Hurd improperly touched them. The amended complaint alleges that defendants were negligent in hiring, retaining and supervising Hurd. Defendants moved for summary judgment dismissing the ninth cause of action, and plaintiffs cross-moved for summary judgment on that cause of action. Supreme Court granted that part of defendants' motion seeking summary judgment dismissing the claim of negligent hiring and denied plaintiffs' cross motion.
The court erred in dismissing the claim of negligent hiring. Although defendants met their initial burden of establishing their entitlement to judgment as a matter of law, plaintiffs raised an issue of fact by submitting the deposition testimony of Hurd, in which he testified that defendants did not inquire about his prior criminal history ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). We thus modify the order accordingly.