Opinion
3252/08.
Decided January 28, 2010.
Matthew D. Shwom, Esq., Lewis Johs Avallone Aviles, LLP, Attorney for Plaintiff, Melville, NY.
Malapero Prisco, LLP, By: Andrew L. Klauber, Esq., Attorneys for Defendants, New York, NY.
Defendants motion for summary judgment is granted to the limited extent that any cause of action against defendant Skate Safe, Inc. (Skate Safe), based on negligent hiring, training, security and supervision of its employee Richford is dismissed pursuant to CPLR § 3212 and the motion is otherwise denied.
Skate Safe operates an ice skating rink at which it sponsors a league for adult hockey games and employs Richford to serve as a referee.
On the evening of March 5, 2007, plaintiff, a hockey team member, was injured in an encounter with Richford just as a game was ending. An altercation broke out between members of the teams and both plaintiff and Richford headed in the direction of the fight. The versions of the events then differ, as plaintiff states that he was going to break it up when defendant blocked him and threw him down, whereas defendant states that plaintiff had acted with the appearance of intending to join the fray when he impeded and blocked him from doing so. As a result of this interaction, plaintiff sustained bodily injury.
The complaint, although containing separate paragraphs does not contain separate designated causes of action. However it charges that Skate Safe (i) is vicariously liable for the conduct of its employee Richford, (ii) did not provide adequate supervision, training and security, (iii) knew or should have known that Richford had previously engaged in violent conduct. Thus, there are essentially two claims alleged against Skate Safe: vicarious liability and negligent supervision.
As to Richford, the complaint alleges that he was negligent, reckless and intended to assault plaintiff in a manner that was beyond the scope of the usual conduct of a referee in a hockey game.
The motion is supported by (i) depositions of plaintiff, one Guttenberg, a principal of Skate Safe, Richford and one Krivi, the head referee at the rink (ii) interrogatories (iii) response to discovery and inspection. Plaintiff, in opposition, also relies on prior discovery and none of the parties have submitted any additional affidavits.
It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Bhatti v. Roche, 140 AD2d 660 (2d Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 AD2d 797 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N. A., 82 AD2d 168 (3d Dept. 1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief Brooks v. Blue Cross of Northeastern New York, Inc., 190 AD2d 894 (3d Dept. 1993).
Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212 [b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v Farrell Lines, 64 NY2d 1092 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).
If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are insufficient ( Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter Co., Inc., 207 AD2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993). If a party defends a motion by resort to CPLR 3212(f), that is, the party has a defense sufficient to defeat the motion but that the facts cannot yet be stated, that party must be able to make some showing that such facts do in fact exist; mere hope that discovery may reveal those facts is insufficient. Companion Life Ins. Co. v All State Abstract Co. ,35 AD3d 519 (2d Dept. 2006). Nor can mere speculation serve to defeat the motion. Pluhar v Town of Southhampton ,29 AD3d 975 (2d Dept. 2006); Ciccone v Bedford Cent. School Dist. , 21 AD3d 437 (2d Dept. 2005).
However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v Tedlen Realty Corp., 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2d Dept. 1992); Barr v County of Albany, 50 NY2d 247, 254 (1980); James v. Albank, 307 AD2d 1024 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2d Dept. 1993).
The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v Wild Oaks Holding, Inc., 196 AD2d 812 (2d Dept. 1993); Barclays Bank of NY v Sokol, 128 AD2d 492 (2d Dept. 1987), such as when the affidavit in opposition clearly contradicts earlier deposition testimony. Central Irrigation Supply v Putnam Country Club Assocs., LLC , 27 AD3d 684 (2d Dept. 2006).
Defendant Richford has failed to make a prima facie showing of entitlement to relief as the evidence submitted by him reflects conflicting versions of the events which can only be resolved by a trier of fact.
Defendant Skate Safe has failed to make a prima facie showing of entitlement to relief on the issue of its vicarious liability for the conduct of its employee Richford.
"Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment" ( Fernandez v. Rustic Inn, Inc. , 60 AD3d 893 , 896; see Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933). Significantly, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business ( see Carnegie v. J.P. Phillips, Inc. , 28 AD3d 599 , 600; Schuhmann v. McBride , 23 AD3d 542 , 543; Lombardo v. Mastec North American Inc., 2009 WL 4855749 (N.Y.A.D. 2 Dept.)." See also Shapiro v. Good Samaritan Regional Hosp. 55 AD3d 821 (2d Dept. 2008).
"An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such employment ( see Oliva v. City of New York, 297 AD2d 789, 748 NYS2d 164; Smith v. Midwood Realty Assoc., 289 AD2d 391, 734 NYS2d 237; Felberbaum v. Weinberger , 54 AD3d 717 (2 Dept. 2008)."
It cannot be said as a matter of law that the conduct of Richford was, as a matter of law, outside the scope of his employment. Cf McArthur v. J.M. Main Street, Inc. , 46 AD3d 639 (2d Dept. 2007).
As noted above it is settled law that an employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his employment. Riviello v Waldron, 47 NY2d 297 (1979); Brancato v Dee Dee Purchasing, 296 AD2d 518 (2d Dept. 2002). Generally speaking, these are factual determinations to be made by a jury; it is only where a court can determine, as a matter of law, that the actor was motivated by private concerns that were wholly unrelated to his duties as an employee that summary judgment is appropriate. See, Vega v Northland Marketing Group, 289 AD2d 565 (2d Dept. 2001); Carnegie v J.P. Phillips, Inc., supra; cf Danko v. Forest Lake Camp. Inc., 63 AD3d 1099 (2d Dept. 2009).
Here, the actions of Richford took place at the premises of the employer, while he was working and during a match, and there is no evidence to suggest that he was motivated to advance his own purposes. Thus, it cannot be said that defendant Skate Safe (who is represented by the same attorney as defendant Richford) has made a prima facie showing of entitlement to relief on the issue of vicarious liability.
The claims of negligent training, improper security, negligent hiring and supervision are directed at defendant Skate Safe as the operator of the rink and employer of the referee.
This defendant has failed to make a prima facie showing of entitlement to relief as to whether it was negligent in the training and supervision of Richford or as to its security. Skate Safe has failed to submit any evidence at all as to the proper supervision or training of a hockey referee or what can be deemed proper rink security. Although evidence has been submitted as to how he was trained and supervised, there is no evidence that such training, supervision and security was proper, appropriate and customarily accepted as the standard. Shubert v. Bennett Mfg. Co. Inc., v. 201 AD2d 285 (1st Dept. 1994).
A different result is reached as to the claim of negligence against Skate Safe in connection with the hiring and retention of Richford. To the extent that the claim is based on Richford's intentional conduct, there is no evidence that his employer knew or should have known that he had a propensity for violence, Carnegie v. J.P. Phillips, Inc., supra at 600.
"A cause of action for negligent hiring is based upon the defendant's status as an employer. Such a claim requires the employer to answer for a tort committed by an employee against a third person "when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm" ( Kirkman v. Astoria Gen. Hosp., supra at 403; see Carnegie v. J.P. Phillips , 28 AD3d 599 , 600, 815 NYS2d 107; Bellere v. Gerics, 304 AD2d 687, 759 NYS2d 755 657 NYS2d 808; Mataxas v. North Shore Univ. Hosp., supra). "The employer's negligence lies in his having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of his employees" ( Detone v. Bullit Courier Serv., 140 AD2d 278, 279, 528 NYS2d 575). Thus, a negligent hiring claim does not require the existence of any particular relationship between the plaintiff and the defendant employer ( see Rodriguez v. United Transp. Co., 246 AD2d 178, 180, 677 NYS2d 130). Rather the defendant is responsible for the harm its negligently hired employee causes to any third party." Sandra M. v. St. Luke's Roosevelt Hospital Center , 33 AD3d 875 (2d Dept. 2006).
It has recently been held that generally when a plaintiff seeks to recover damages against an employer based on an employee's actions committed within the scope of employment, the employer is liable under the doctrine of respondeat superior, not negligent hiring or supervision and a claim for such should be dismissed. Segal v. St. John's University, NYLJ, Jan. 19, 2010, at 28 col. 4 (2d Dept. 2010), 2010 WL 114384.
The duty to investigate a prospective employee, or to "institute specific procedures for hiring employees," is triggered only when the employer "knows of facts that would lead a reasonably prudent person to investigate the prospective employee." Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 163, 654 NYS2d 791, cert. Denied 522 U.S. 967, 118 S. Ct. 413, 139 L.Ed.2d 316; see 466 Carnegie v. J.P. Phillips, supra at 600, 815 NYS2d 107; T.W. v. City of New York, 286 AD2d 243, 245, 729 NYS2d 96. The record in this case does not disclose any evidence that the employer had any reason to request any further employment history or background check for Richford or that such investigation would have yielded any facts that would have offered altered its hiring decision. See Sandra M. v St. Luke's Roosevelt Hospital Center, supra . Skate Safe therefore has made a prima facie showing of entitlement to relief on the claim against it of negligent hiring and retention.
As to the claim of negligent hiring and retention, the plaintiff has failed to raise an issue of fact that Skate Safe was negligent in the hiring, supervision, training and retention of its referee. There is simply nothing to suggest that intentional conduct, (if there be any) of the referee was foreseeable based on any facts that have been disclosed. Doe v. Rohan , 17 AD3d 509 (2d Dept. 2005). There were no prior complaints or conduct to serve as a signal of future improper conduct. Day v. Vlachos Hellenic Service Station, 2 AD3d 482 (2d Dept. 2008); Ray v. County of Delaware, 239 AD2d 755 (3d Dept. 1997).
There is evidence of only one prior occasion five years prior, before Richford became employed and not involving him, where it was claimed that a skater was injured by a referee. However, there are no facts and nothing to indicate that the involved referee was in any way at fault.
In sum, as to Richford the motion is denied in its entirety.
As to Skate Safe, the motion is granted to the extent that the claim of negligent hiring and retention of Richford is dismissed and it is otherwise denied in its entirety.
This shall constitute the Decision and Order of this Court.