Opinion
01-19-2017
Gurpreet SINGH, Plaintiff–Respondent–Appellant, v. ALLIANCE BUILDING SERVICES, LLC, et al., Defendants–Appellants–Respondents.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Michael Zisser of counsel), for appellants-respondents. The Bostany Law Firm PLLC, New York (John P. Bostany of counsel), for respondent-appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Michael Zisser of counsel), for appellants-respondents.
The Bostany Law Firm PLLC, New York (John P. Bostany of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about January 12, 2016, which denied as moot plaintiff's motion for summary judgment dismissing defendant David Diaz's counterclaims on the ground of noncompliance with discovery orders, unanimously affirmed, without costs. Order, same court (Arlene P. Bluth, J.), entered on or about May 4, 2016, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the respondeat superior claim, unanimously reversed, on the law, without costs, and the motion granted.
Defendants established a reasonable excuse for Diaz's failure to provide unrestricted medical authorizations before the deadline set by the court's conditional order of preclusion and meritorious counterclaims (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ).
Here, there is no evidence that Diaz's assault was motivated by a desire to further any interest of his employer whatsoever,
nor is there any evidence that the employer condoned, instigated, or authorized the assault (Taylor v. United Parcel Serv., Inc., 72 A.D.3d 573, 899 N.Y.S.2d 223 [1st Dept.2010], lv. denied 15 N.Y.3d 705, 2010 WL 3396877 [2010] ; compare Ramos v. Jake Realty Co., 21 A.D.3d 744, 745, 801 N.Y.S.2d 566 [1st Dept.2005] ). Accordingly, the employer cannot be held vicariously liable on a respondeat superior theory.
ANDRIAS, J.P., SAXE, FEINMAN, GISCHE, KAHN, JJ., concur.