Opinion
April 29, 1998
Appeal from the Supreme Court, Erie County, Howe, J. — Summary Judgment.).
Present — Denman, P.J., Lawton, Wisner, Baho and Pallon, JJ.
Judgment and order affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Howe, J.). We add only that, with respect to plaintiffs cause of action against defendant Sisters of Charity Hospital (Hospital) for negligent hiring, supervision or retention, the Hospital met its initial burden of establishing that defendant Daryl Ziccarelli, its employee, had no history of, or propensity for, sexual misconduct ( see generally, PJI 2:240; see also, Park v. New York Cent. Hudson River R. R. Co., 155 N.Y. 215, 218-219; Gallo v. Dugan, 228 A.D.2d 376, lv denied 90 N.Y.2d 806). Plaintiffs showing in response that the Hospital had reason to suspect such history or propensity was insufficient to raise an issue of fact. "Suspicion, surmise and accusation are not enough to defeat a motion for summary judgment" ( Pappalardo v. Meisel, 112 A.D.2d 277, 278; see also, Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 63).
All concur except Lawton and Baho, JJ., who dissent and vote to reverse in the following Memorandum.
We respectfully dissent. Plaintiff through admissible evidence has raised questions of fact on both theories of liability, viz., that defendant Sisters of Charity Hospital (Hospital) was vicariously liable for the actions of its employee and that the Hospital was negligent in retaining the employee when it knew or reasonably should have known of the propensity of the employee to use his position to sexually abuse female patients. Where, as here, an employer places an employee in control of a patient, and the employee, while performing assigned duties, uses that opportunity to sexually abuse that patient, there may be liability on the part of the employer. Thus, if an employees duties require that a close personal relationship involving trust be established between the employee and a patient, it is not sufficient to state that acts of sexual abuse are outside the course of the employees employment ( see, Cynthia S. v. State of New York, 222 A.D.2d 1129; see generally, De Wald v. Seidenberg, 297 N.Y. 335, 338). In this instance, it was the duty of the employee, an orderly, to bathe the patients entire body. Moreover, the Hospital could have exercised control over the employees actions, i.e., bathing the. patient. If, as alleged, the employee used that opportunity "to sexually abuse the patient by wrongful and improper touching, then the Hospital could be held liable. In a similar vein, a proprietor of a bar has been held liable for an assault of a patron by a bartender ( see, Sims v. Bergamo, 3 N.Y.2d 531, 534-535; see generally, De Wald v. Seidenberg, supra; Young Bai Choi v. D D Novelties, 157 A.D.2d 777, 778). Consequently, we would reverse the judgment and order and deny the motion of the Hospital.