McMINDES v. Buffets, Inc., Doing Business as Old Country Buffet, Old Country Buffet, Defendants-Respondents, et al., Defendant. (2007)

 Plaintiff commenced this action seeking damages for injuries she allegedly sustained in an altercation with defendant Wilbert Jones, Jr. while waiting in line to enter the dining area at an Old Country Buffet Restaurant.   Jones in turn asserted a cross claim against defendants Buffets, Inc., doing business as Old Country Buffet, and Old Country Buffet (collectively, OCB), alleging that he was injured by OCB's employees during that altercation.   Supreme Court properly granted those parts of the motion of OCB for summary judgment dismissing the second and third cross claims of Jones, alleging that OCB was negligent in supervising its employees and that, through the actions of its employees, OCB intentionally and severely injured Jones.   OCB may be held liable for the negligent supervision of its employees only if it knew or should have known of their alleged violent propensities for the type of behavior that caused the harm (see Zanghi v. Laborers' Intl. Union of N. Am., AFL-CIO, 8 A.D.3d 1033, 1034, 778 N.Y.S.2d 607, lv. denied 4 N.Y.3d 703, 790 N.Y.S.2d 650, 824 N.E.2d 51;  Paul J.H. v. Lum, 291 A.D.2d 894, 895, 736 N.Y.S.2d 561;  Yeboah v. Snapple, Inc., 286 A.D.2d 204, 205, 729 N.Y.S.2d 32).   Here, OCB met its burden by establishing that none of the employees who allegedly attacked Jones had a history of violence and that they did not intentionally assault Jones, and Jones failed to raise a triable issue of fact in opposition.

 We further conclude, however, that the court erred in granting that part of the motion of OCB for summary judgment dismissing the first cross claim, seeking damages under the theory of respondeat superior.   We therefore modify the order accordingly.   An employer may be held vicariously liable for the intentional or negligent acts of its employees if the employees are acting within the scope of their employment (see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95;  Beauchamp v. City of New York, 3 A.D.3d 465, 466, 771 N.Y.S.2d 129), and the issue whether an act was within the scope of the employment ordinarily is one of fact for the jury (see Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278;  White v. Alkoutayni, 18 A.D.3d 540, 541, 794 N.Y.S.2d 667;   Beauchamp, 3 A.D.3d at 466-467, 771 N.Y.S.2d 129).   In determining the scope of the employment, “the test has come to be whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions” (Riviello, 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [internal quotation marks omitted] ).   “Here, [OCB] failed to meet its burden of establishing as a matter of law that the allegedly tortious conduct of its employee[s] was not generally foreseeable and a natural incident of the employment” (Baes v. County of Niagara, 19 A.D.3d 1091, 1092, 796 N.Y.S.2d 271).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the first cross claim and as modified the order is affirmed without costs.

MEMORANDUM: