WALLACE v. 2962 (2002)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 25, 2001, which denied defendant 2962 Decatur Avenue Owners Corp.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiff's claim against 2962 Decatur Avenue Owners Corp. insofar as premised on the doctrine of respondeat superior, and otherwise affirmed, without costs.

 In this personal injury action, the motion court properly determined that there were triable issues of fact as to whether defendant Ramon Gomez Jr. was an employee of Decatur Owners Corp. at the time he assaulted the plaintiff and, if he was, whether Decatur Owners Corp. was negligent in its hiring and supervision of him.   However, the motion court erred when it found questions of fact as to whether Decatur Owners Corp. was answerable for Mr. Gomez' actions on a respondeat superior theory.   Decatur Owners Corp. cannot be held vicariously liable for the unprovoked assault at issue, which, as alleged, was clearly outside the scope of any duties Mr. Gomez may have had as a building functionary and did not further or serve any discernible business purpose of Decatur Owners Corp. (see, Fainberg v. Dalton Kent Secs. Group, Inc., 268 A.D.2d 247, 248, 701 N.Y.S.2d 41;  Flowers v. New York City Tr. Auth., 267 A.D.2d 132, 700 N.Y.S.2d 27, lv. denied 94 N.Y.2d 763, 708 N.Y.S.2d 52, 729 N.E.2d 709).