Amanda Marie Rodriguez, an infant by her mother and natural guardian Christine Maldonado, Plaintiff, v. New York City Department of Small Business Services, et al., Defendants. (2011)

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered on or about June 25, 2010, which granted the motion by defendants Hunts Point Cooperative Market, Inc. and Hunts Point Terminal Produce Cooperative Association, Inc. (collectively, Hunts Point) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered November 4, 2009, which, upon renewal, granted the motion by Global Innovation Partners, LLC, and The Linc Group, LLC, The Linc Group, Inc., Linc Facilities Services, LLC, Linc Services, LLC, Linc Mechanical, LLC, and Linc Network, LLC (collectively, Linc) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered on or about July 1, 2009, which granted defendant Affiliated Building Services, Inc.'s (ABS) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff Christine Maldonado was shot and injured by her boyfriend, Jose Machado, during a domestic dispute in their home. Machado used a revolver he had surreptitiously removed from Hunts Point Produce Market, where he worked as a security guard, and concealed before leaving work. After shooting Maldonado, Machado shot and killed himself.

None of ABS, Global, Linc or Hunts Point, in their different capacities, breached a duty to Maldonado that, if carried out, could have prevented her injuries. ABS was Machado's former employer but had no control over him in 2005, and it owed Maldonado no independent duty to protect her from Machado. Global and Linc, as successor corporations to ABS, stand in ABS's shoes, assuming their assumption of liabilities. Hunts Point, which apparently employed Machado and supplied him with a firearm for security purposes at its premises, had a degree of control over Machado's actions, but not to the extent of responsibility for his concealed removal of the revolver from the premises and use of it at his place of residence during a domestic dispute. Contrary to plaintiff's contention, the record evidence fails to raise a triable issue of fact whether Hunts Point was negligent in entrusting Machado with a weapon.

Even assuming that any or all of these defendants breached a duty of care owed to Maldonado, including a breach arising from the entrustment of a firearm to Machado, any such breach was not the proximate cause of Maldonado's injuries. Machado was not acting within the scope of his employment when he shot Maldonado, and his “independent intervening acts” arising out of their personal relationship severed any nexus between defendants' alleged negligence and her injuries (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980] [“the question of legal cause may be decided as a matter of law ․ [where] independent intervening acts ․ operate upon but do not flow from the original negligence”]; see e.g. Hoffman v. City of New York, 301 A.D.2d 573 [2003], lv denied 100 N.Y.2d 501 [2003] ).

We have considered plaintiff's remaining arguments and find them unavailing.