Opinion
14101/03.
Decided September 24, 2004.
Plaintiff Raquel Robles commenced this action as Administratrix of the Estate of Brian Hud Cameron, who was the victim of a deadly stabbing. Plaintiff sues, inter alia, the defendant assailant, Alcernio Seguro, and GNF Properties, who was the assailant's employer at the time of the deadly assault. Defendant GNF Properties now moves, pursuant to CPLR § 3212, for summary judgment dismissing the claims asserted against it on the ground that it cannot be found liable for the tortuous acts of its former employee.
Factual Background
As noted above, this action arises from an altercation during which plaintiff decedent, Brian Hud Cameron, was stabbed to death by defendant assailant, Alcernio Seguro. At the time of the incident, defendant Seguro was employed by defendant GNF Properties, as the superintendent of a building located at 2837-39 Decatur Avenue in the Bronx. The building contained 37 residential apartments and one commercial unit, a grocery store, in which the altercation occurred. Subsequently, defendant Seguro was criminally convicted for his deadly assault. Plaintiff then commenced this action against defendant assailant Alcernio Seguro (who has defaulted in this action,) his former employer, defendant GNF Properties Corporation, and The City of New York.
Defendant GNF Properties now moves for summary judgment on the grounds that (1) it cannot be held vicariously liable for the intentional torts of co-defendant Seguro as he was not acting within the scope of his employment when he committed the deadly assault; and (2) plaintiff cannot establish that GNF Properties was negligent in the hiring, retention and supervision of defendant Seguro as a superintendent of one of its properties.
Discussion
It is well settled that the proponent of a motion for summary judgment must establish that "there is no defense to the cause of action or that the cause of action or defense has no merit," (C.P.L.R. § 3212[b]), sufficiently to warrant the court as a matter of law to direct judgment in his or her favor. Bush v. St. Claire's Hospital, 82 NY2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). This standard requires that the proponent of the motion "tender sufficient evidence to eliminate any material issues of fact from the case," id., "by evidentiary proof in admissible form." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." C.P.L.R. § 3212(b).
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v. Kenworth Truck Company, 68 NY2d 714, 717 (1986); Zuckerman v. City of New York, supra, 49 NY2d at 560, 562. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. Id., at 562.
A.
The Court first examines whether defendant GNF Properties met its burden on its contention that it cannot be found vicariously liable for defendant Seguro's intentional tort. As a general rule, an employer may be vicariously liable for an employee's torts, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his or her employment. See Riviello v. Waldron, 47 NY2d 297, 302; Cornell v. State of New York, 46 NY2d 1032, 1033. There is, however, no vicarious liability on the part of the employer for torts committed by the employee solely for personal motives unrelated to the furtherance of the employer's business. Kirkman v. Astoria Gen. Hosp., 204 AD2d 401, 402 (2nd Dept. 1994); see also, N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 251 (2002); Adams v. New York City Trans. Auth., 88 NY2d 116, 118 (1996).
Here, in support of its motion, defendant GNF Properties submits, inter alia, the minutes of the criminal proceedings during which defendant Seguro pled guilty and was sentenced for the crime of Manslaughter in the First Degree for the stabbing. During such proceedings, defendant Seguro admitted that what triggered his stabbing of plaintiff decedent was a prior incident during which a gang of youths (including plaintiff decedent) assaulted him. Two days after his severe beating by the gang of youth, defendant Seguro took a break from his job to go to a bodega located in the same building in which he worked as a superintendent. Inside the bodega, Seguro was confronted with the same gang of youth who had attacked him. When Seguro was pushed by plaintiff decedent, he reacted by removing a knife from his pocket and stabbing plaintiff decedent. Seguro claims that he never intended to kill the decedent and reacted solely out of fear.
Based upon the foregoing proof, GNF Properties has established its entitlement to summary judgment dismissing plaintiff's claim based upon vicarious liability. It is clear from defendant Seguro's admission that the employee's stabbing of the plaintiff decedent was not incidental to the furtherance of GNF Properties' business and was solely committed to satisfy his personal motives. That the conduct committed by defendant Seguro was purely and wholly personal in nature, clearly evinces a departure from any normal duties as a building superintendent. Cf. Kirkman v. Astoria Gen. Hosp., 204 AD2d 401 (2nd Dept. 1994) (hospital was not vicariously liable for the rape of a patient by a hospital security guard, as the act was committed for purely personal motives and was a clear departure from normal security guard duties); see also Overton v. Ebert, 180 AD2d 955 (3rd Dept. 1992); Heindel v. Bowery Savings Bank, 138 AD2d 787 (3rd Dept. 1988). Accordingly, since the deadly assault was not within the scope of defendant Seguro's employment, GNF Properties cannot be held vicariously liable for it. Thus, defendant GNF Properties is entitled to a dismissal of the claim of vicarious liability, unless plaintiff can demonstrate the existence of a factual issue requiring a trial of the claim. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
This Court finds that plaintiff has failed to proffer any evidence to show the existence of a triable issue of fact. In opposition to the motion for summary judgment on vicarious liability, counsel for plaintiff argues that the motion is premature because of the need for additional discovery. However, to defeat summary judgment, the opponent to a motion must make an evidentiary showing to support his conclusion, mere speculation or conjecture is insufficient. See Odorizzi v. Otsego Northen Catskills Board of Cooperative Education Services, 307 AD2d 490 (3rd Dept. 2003). Significantly, plaintiff has failed to establish that movant is in a better position than plaintiff to provide any additional discovery regarding defendant assailant's background. Thus, in the absence of an evidentiary showing that facts essential to justify opposition exists, this Court finds no merit to plaintiff's argument that the motion should be denied as premature.
B.
The Court next examines whether defendant GNF Properties met its burden for summary judgment on the claim that it cannot be found liable for defendant Seguro's intentional tort under the theory of negligent hiring, retention and supervision. In instances where an employer cannot be held vicariously liable for its employee's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision. Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 (2nd 1997). However, a necessary element of causes of action for negligent hiring, retention, and supervision "is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury." Kenneth R., supra, at 160; see also Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2003); Oliva v. City of New York, 297 AD2d 789 (1st Dept. 2002).
There is no common-law duty to institute specific procedures for hiring an employee unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Kenneth R., supra. at 160; see also Doe v. Whitney, 8 A.D.3rd 610 (2nd Dept. 2004. Nor is an employer under a duty to inquire as to whether an employee has been convicted of crimes in the past. "Liability will attach on such a claim only when the employer knew or should have known of the employee's violent propensities." Yeboah v. Snapple, Inc., 286 AD2d 204(1st Dept. 2003); see also Day v. J. Vlachos Hellenic Serv. Station, 2 A.D.3d 482 (1st Dept. 2003); T.W. v. City of New York, 286 AD2d 243 (1st Dept. 2001) ("[A]n employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee."). Therefore, "recovery on a negligent hiring and retention theory requires a showing that the employer was on notice of the relevant tortuous propensities of the wrongdoing employee." Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2001).
Here, in support of its motion, defendant GNF Properties relies upon affidavits from two of its employees, Mike Bajraktari and Rrustern Gecaj, who both had direct involvement with defendant Seguro during his 13-month tenure with the company. Mr. Gecaj, the supervisor of property managers, attested that he interviewed and hired defendant on March 1, 2001, on a two-week trial basis. After being satisfied with his performance, Mr. Gecaj hired him on a permanent basis. During Mr. Seguro's 13-month tenure (from March 1, 2001 until April 1, 2002), Mr. Gecaj received "nothing but good reports about Mr. Seguro," including that "Mr. Seguro did his work diligently and promptly." Likewise, Mr. Bajraktari, who managed the building in which Mr. Seguro worked as a superintendent, attested that Mr. Seguro was "a diligent and courteous employee who never gave [him] a cause for concern." Both Mr. Gecaj and Mr. Bajraktari attested that they never heard any complaints about Mr. Seguro drinking alcohol either on duty or off duty, nor about having any violent tendencies.
Based upon the foregoing proof, defendant GNF Properties has met its burden of establishing that it cannot be held liable to plaintiff for the tortuous acts of its former employee under the doctrine of negligent hiring, retention and supervision, since the evidence submitted in support of the motion establishes that the employer neither knew nor should have known about the employee's propensities for violent behavior. Cf. Yeboah v. Snapple, Inc., 286 AD2d 204(1st Dept. 2003). Thus, defendant GNF Properties is entitled to a dismissal of the claim of negligent hiring, retention and supervision, unless plaintiff can demonstrate the existence of a factual issue requiring a trial of the claim. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
This Court finds that plaintiff has failed to meet her burden. Plaintiff argues that summary judgment should be denied because GNF Properties did not submit any proof that it did any background check on Seguro before it hired him as a superintendent. That position, however, is untenable as a matter of law. First, the law is abundantly clear that, without some evidence that GNF Properties knew or should have known that Seguro posed a risk of injury to anybody, GNF Properties' failure to investigate Seguro further was not negligent per se. See, e.g., Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2002) (affirming summary judgment dismissing complaint for negligent hiring and retention where defendants failed to submit evidence that the moving defendants had knowledge of the relevant tortuous propensities of the wrongdoing employee); Oliva v. City of New York, 297 AD2d 789 (2nd Dept. 2002) (reversing denial of summary judgment on negligent hiring claim where defendant Police Athletic League did not know or have reason to know of youth counselor's propensity to cause plaintiff's injury). Secondly, plaintiff has not shown that GNF Properties would have discovered anything indicating Seguro's propensity to engage in the alleged tortuous conduct had defendant actually carried out a background check on him. Cf. Koran I. v. New York City Bd. of Educ., 256 AD2d 189 (1st Dept 1988) ("Whether or not the principal could have been more thorough in checking [the abuser's] background, his actions do not support a claim of negligent hiring because a routine background check would not have revealed his propensity to molest minors.") See also, Day v. Vlachos Helenic Service Station, 2 A.D.3rd 482 (2nd Dept. 2003).
In sum, plaintiff has failed to raise a triable issue of fact that, at the time defendant GNF Properties hired Seguro, defendant knew or should have known that Seguro had a propensity for the injurious conduct alleged in this case or that a background check would have revealed such a propensity. Under those facts, no reasonable jury could find that GNF Properties was negligent in hiring Seguro as a superintendent, and summary judgment must be granted to GNF Properties on plaintiffs' negligent hiring claim. Cf. Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2001); Koran I. v. New York City Bd. of Educ., 256 AD2d 189 (1st Dept 1988).
Conclusion
For the foregoing reasons, it is hereby ORDERED that the motion by defendant GNF Properties, seeking summary judgment dismissing the claims asserted against it, is granted, and the claims asserted against defendant GNF Properties are hereby severed and dismissed, and the Clerk is directed to enter a judgment in favor of said defendant. This constitutes the Decision and Order of this Court.