Opinion
2019–09398 Index No. 716333/18
11-10-2021
Tarik SHEPPARD, respondent, v. UNITED STATES TENNIS ASSOCIATION INCORPORATED, et al., appellants.
Denlea & Carton LLP, White Plains, NY (Jeffrey I. Carton and Amber T. Wallace of counsel), for appellants. The Lambrou Law Firm, P.C., New York, NY (Lambros Y. Lambrou and Ronny Solomon of counsel), for respondent.
Denlea & Carton LLP, White Plains, NY (Jeffrey I. Carton and Amber T. Wallace of counsel), for appellants.
The Lambrou Law Firm, P.C., New York, NY (Lambros Y. Lambrou and Ronny Solomon of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for discrimination on the basis of race, the defendants appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered July 12, 2019. The order, insofar as appealed from, denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action is granted.
In determining a motion to dismiss pursuant to CPLR 3211, the pleadings are afforded a liberal construction, the facts as alleged in the complaint are deemed true and the plaintiff is accorded the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; 106 N. Broadway, LLC v. Lawrence, 189 A.D.3d 733, 736, 137 N.Y.S.3d 148 ). A necessary element of a cause of action to recover damages for negligent hiring and training is that the employer "knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 ; see DeJesus v. DeJesus, 132 A.D.3d 721, 722, 18 N.Y.S.3d 103 ; Timothy Mc. v. Beacon City School Dist., 127 A.D.3d 826, 828, 7 N.Y.S.3d 348 ).
Here, the amended complaint failed to state a cause of action to recover damages for negligent hiring and training against the defendants (see 106 N. Broadway, LLC v. Lawrence, 189 A.D.3d at 736, 137 N.Y.S.3d 148 ; Shu Yuan Huang v. St. John's Evangelical Lutheran Church, 129 A.D.3d 1053, 1054, 12 N.Y.S.3d 232 ) since it failed to sufficiently allege that the defendants knew, or should have known, of a propensity on the part of their employee to commit the alleged wrongful act (see Shu Yuan Huang v. St. John's Evangelical Lutheran Church, 129 A.D.3d at 1054, 12 N.Y.S.3d 232 ).
Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action.
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
DILLON, J.P., HINDS–RADIX, CHRISTOPHER and ZAYAS, JJ., concur.