Opinion
11243/11
09-26-2011
Ann Larson, Plaintiff, v. Cooper Square Community Development Committee and Businessman's Association, Inc. and ERIC L. SPRUIELL, Defendant.
, J.
Upon the foregoing papers it is ordered that the motion is determined as follows:
This is an action to recover money damages for injuries allegedly suffered as a result of sexual assaults. The plaintiff alleges that this action arises out of a series of events that occurred between December 23, 2005 and February 2006. The plaintiff claims that the defendant Eric Spruiell had unwanted sexual relations with her. The plaintiff claims that these acts were allowed to occur due to the defendant Cooper Square's negligent hiring of Mr. Spruiell and its failure to properly supervise his employment. The plaintiff further claims that the defendant Cooper Square is liable under the theory of Respondeat Superior.
The plaintiff testified at an examination before trial. The plaintiff testified that she first met Mr. Spruiell in September 2005. She phoned the defendant Cooper Square regarding a housing issue and her call was transferred to Mr. Spruiell. The plaintiff then met with Mr. Spruiell in his office in about early October 2005. The meeting lasted about a half-hour. The plaintiff testified that Mr. Spruiell invited the plaintiff to a fundraising event at Cooper Square. Shortly after the fundraiser, Mr. Spruiell showed up at her apartment uninvited. She testified that Mr. Spruiell then began to show up at her apartment two or three times a week. The plaintiff testified that she had sexual intercourse with Mr. Spruiell on twelve occasions and that these were not consensual and they all occurred at her apartment. The first time they had sexual intercourse was on December 23, 2005. The plaintiff testified that she first told Mr. Spruiell that she did not want to have sex with him in February 2006. The plaintiff testified that she first contacted Cooper Square regarding the actions of Mr. Spruiell in March 2006 and that she had not complained of these allegations prior to this time. The plaintiff testified that she was told to send an email with her complaint to Cooper Square's executive director, which she did. She was then contacted by the President of the Board of Directors, Joyce Ravitz, who told her that Cooper Square had received numerous complaints from other women concerning Mr. Spruiell, but the other women were too intimidated to put anything into writing.
The defendant Eric Spruiell testified at an examination before trial. He testified that he started his employment with Cooper Square in 2004. His supervisor was Steve Herrick. He testified that his first contact with the plaintiff occurred in September 2005, when her call to Cooper Square was routed to him. He first met the plaintiff in person when she came into his office for a meeting which lasted between an hour and an hour and a half. He testified that he invited the plaintiff to a party Cooper Square was having as a fundraising event. He testified that after the fundraiser he received a call on his cellular phone from a woman who said she was a friend of the plaintiff. The woman said she was worried about the plaintiff and was glad to hear about you guys. He testified that he then emailed the plaintiff and said that he was not happy about receiving the phone call. The plaintiff emailed him back to apologize and to say that she was concerned with what was happening with her apartment. He testified that he then made an appointment and visited the plaintiff at her apartment in the evening later that week. He testified that he would go to lunch with the plaintiff after her court appearances. He also stated that he visited the plaintiff at her home a few times before he had any sexual relations. He testified that he had a consensual sexual relationship with the plaintiff and that they had sexual relations less than 10 times. He testified that the relationship started in December 2005 and that he ended their relationship around the end of February 2006. He testified that he was fired from Cooper Square after he told Cooper Square board members that he had a sexual relationship with the plaintiff after he was asked about his relationship with her. He testified that he had never before been disciplined by Cooper Square. He also testified that he did not have sexual relationships with any other clients of Cooper Square during his employment.
Steve Herrick, the executive director of the defendant Cooper Square testified at an examination before trial. Mr. Herrick testified that he interviewed Mr. Spruiell along with two board members. Mr. Herrick said that prior to hiring Mr. Spruiell he checked Mr. Spriuell's references and was never advised that Mr. Spruiell had been discharged from any prior employment. Mr. Herrick stated that he would have periodic meetings with Mr. Spruiell and Mr. Spruiell would have to turn in monthly reports about the clients he was assisting. He testified that he was not aware that Mr. Spruiell had visited any Cooper Square clients in the client's apartment. Mr. Herrick testified that he heard, just prior to hearing about the matter involving the plaintiff, that Mr. Spruiell made a remark to a client that the client thought was inappropriate. He stated that the client did not file any formal complaint. He testified that he had no knowledge of any other prior complaints against Mr. Spruiell. He testified that he first learned of Mr. Spruiell's action in March 2006. He learned from a board member that the plaintiff told the board member that the plaintiff had been in a sexual relationship with Mr. Spruiell. The matter was then discussed with Mr. Spruiell, who admitted to having a sexual relationship with the plaintiff. A decision was then made by the members of the executive committee to immediately terminate Mr. Spruiell.
Joyce Ravitz, a member of the board of directors of defendant Cooper Square testified at an examination before trial. She testified that she had been a member of the Steering Committee of Cooper Square for 15 or 20 years. She was also a member of the Executive Committee. She testified that prior to the time that Mr. Spruiell was terminated there were no issues concerning Mr. Spruiell that were discussed with the Steering Committee or Executive Committee. She testified that she had no knowledge of any prior inappropriate relationship or acts by Mr. Spruiell. She further stated that as soon as Cooper Square heard about the plaintiff's complaint they called Mr. Spruiell in for a meeting with the Executive Committee. She testified further that the Executive Committee then met and decided to recommend to the Steering Committee that Mr. Spruiell should be terminated immediately.
Under the doctrine of respondeat superior an employer can be held liable for an employee's tortious acts when they were committed in furtherance of the business of the employer and is within the scope of employment (see Holmes v Gary Goldberg & Co., 40 AD3d 1033 [2007]; Petrescu v College Racquet Club, 40 AD3d 947 [2007]). Determining whether a particular act was within the scope of employment is based heavily on factual considerations and is usually a question for the jury (see Petrescu, 40 AD3d at 949 Corson v City of New York, 290 AD2d 408 [2002]; Patterson v Khan, 240 AD2d 644 [1997]). If an act is performed while the employee is engaged in the business of his employer or the act can be said to be reasonably necessary or incidental to such employment then the act is considered to be within the scope of employment (see Holmes, 40 AD3d at 1034; Davis v Larhette, 39 AD3d 693 [2007]; Beauchamp v City of New York, 3 AD3d 465 [2004]). On the other hand, acts which are committed for personal motives unrelated to the furtherance of the employer's business, do not give rise to vicarious liability (see Holmes, 40 AD3d at 1034; Rausman v Baugh, 248 AD3d 8 [1998]). For vicarious liability to attach, the employer does not have to foresee the precise act committed by the employee as long the general type of conduct is reasonably foreseeable as being within the scope of the employment (see Holmes, 40 AD3d at 1034; Corson, 290 AD2d at 409; Patterson, 240 AD2d at 644). Both negligent acts and intentional torts can fall within the scope of employment (see Holmes, 40 AD3d at 1034; Corson, 290 AD2d at 409). Here, the defendant Cooper Square established that the defendant Spruiell's actions were outside the scope of his employment. In opposition, the plaintiff failed to raise an issue of fact. The fact that it was part of the defendant Spruiell's employment to make home visits does not bring the acts of the sexual assaults or sexual relationship into the scope of the employment (see Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [1997]). These acts were not done in furtherance of the defendant Cooper Square's business and were a departure from the acts of a tenant advocate and, thus, outside the scope of his employment.
The branch of the defendant's motion for summary judgment dismissing the causes of action based on the negligent hiring, retention and supervision should also be granted. A claim for negligent hiring, retention or supervision asserts a direct claim for wrongdoing against an employer. A necessary element of such a claim is that the employer knew or should have known about the employer's propensity for conduct which caused the injury (State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859 [2005]). Here, there is no evidence that the defendant Cooper Square knew or should have known about the defendant Spriuell's alleged tortious propensities (see Carnegie v J.P. Phillips, 28 AD3d 599 [2006]; Well v Rambam, 300 AD2d 580 [2002]).
Accordingly, the defendant Cooper Square's motion is granted and the complaint against the defendant Cooper Square is dismissed.
Dated: Long Island City, NY
September 26, 2011
______________________________
ROBERT J. MCDONALD
J.S.C.