BILIAS v. Alex Sanchez, Defendant. (2012)

James BILIAS, Plaintiff–Respondent, v. GASLIGHT, INC., Defendant–Appellant, Alex Sanchez, Defendant.

Decided: November 20, 2012

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RENWICK, FREEDMAN, JJ.

White & McSpedon, P.C., New York (Joseph W. Sands of counsel), for appellant. Wingate, Russotti, Shapiro & Halperin, L.L.P., New York (William P. Hepner of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered October 17, 2011, which denied the motion of defendant Gaslight, Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Gaslight failed to establish its entitlement to judgment as a matter of law in this action for personal injuries allegedly sustained by plaintiff when he was attacked by defendant Sanchez after being forcibly escorted out of Gaslight's bar. The conflicting testimony contained in the record raises triable issues, including whether Sanchez was an employee of Gaslight, whether the acts complained of were excessive, and whether such acts were within the scope of Sanchez's employment and in furtherance of Gaslight's business (see Sims v. Bergamo, 3 N.Y.2d 531, 534–535 [1957]; Babikian v. Nikki Midtown, LLC, 60 AD3d 470 [1st Dept 2009] ).

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