MARTINEZ v. Circle Line Cruises, et al., Defendants. (2005)

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered September 30, 2004, which denied the motion of defendants Flik International Corp. (Flik) and Eurest Dining Services (Eurest) for summary judgment dismissing the claims of negligent hiring, training, supervision and retention asserted against them, unanimously reversed, on the law, without costs, the defendants-appellants' motion granted and the complaint against them dismissed.   The Clerk is directed to enter judgment accordingly.

Plaintiff was an employee of Flik ¹ on a cruise ship located at Pier 83 at West 42nd Street in Manhattan.   She was allegedly assaulted, while at work, by her supervisor defendant Reyes.   The IAS Court denied a motion by Flik, and its successor company Eurest, to dismiss the claims of negligent hiring, negligent training, negligent supervision, and negligent retention of defendant Reyes.   We reverse.

 The exclusivity of remedy provisions set forth in Workers' Compensation Law § 11 and § 29(6) preclude common-law negligence claims against defendants Flik and Eurest (Conde v. Yeshiva Univ., 16 A.D.3d 185, 187, 792 N.Y.S.2d 387 [2005];  Hahne v. State of New York, 290 A.D.2d 858, 859, 736 N.Y.S.2d 761 [2002];  Sormani v. Orange County Community Coll., 240 A.D.2d 724, 659 N.Y.S.2d 507 [1997] ).

 In the exceptional situation where an “ ‘intentional tort [was] perpetrated by the employer or at the employer's direction’ ” (Acevedo v. Consolidated Edison Co., 189 A.D.2d 497, 596 N.Y.S.2d 68 [1993], lv. dismissed 82 N.Y.2d 748, 602 N.Y.S.2d 806, 622 N.E.2d 307 [1993], quoting Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266 [1973] ), a plaintiff can bring a lawsuit against his or her employer for common-law negligence.   However, in this case, the parties agree that Reyes was not acting within the scope of his employment when he attacked plaintiff, and there is no evidence that any of Reyes's actions were directed or instigated by plaintiff's employer.

FOOTNOTES

1.   Plaintiff alleges that Eurest, the successor company to Flik, assumed all liability of the former company.