Phillip Gaynor, Plaintiff–Respondent–Appellant, v. Gregory Kearse, Nonparty-Appellant-Respondent. (2022)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about December 16, 2020, which, to the extent appealed from as limited by the briefs, denied defendants Affinita Security Group and Gregory Kearse's motion for summary judgment dismissing the assault and battery claims, the false arrest and imprisonment claims asserted by plaintiffs Gibbs and Fambro, and the malicious prosecution claims as against them and the negligent hiring, training, supervision, and retention claims as against Affinita, granted defendant City of New York's motion for summary judgment dismissing plaintiff Gaynor's malicious prosecution claim as against it, and granted defendant Lewis Foods of Times Square's motion for summary judgment dismissing Gaynor's malicious prosecution claim as against it and denied its motion as to the assault and battery, negligent hiring, training, supervision, and retention, and negligence claims against it, unanimously modified, on the law, to grant Affinita and Kearse's motion as to the negligent hiring, training, supervision, and retention claims as against Affinita and to grant Lewis Foods’ motion as to the assault and battery, negligent hiring, training, supervision, and retention, and negligence claims, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment dismissing the complaint against Lewis Foods.

These consolidated actions alleging assault, negligence, negligent hiring and retention, false arrest, and malicious prosecution arise from a physical altercation in a McDonald's restaurant in Times Square at 4 a.m. between plaintiff customers and defendant/nonparty Gregory Kearse, a security guard employed by defendant Affinita, which had contracted with the owner of the restaurant, defendant Lewis Foods, to provide security at the premises.  The identity of the primary aggressor is sharply disputed.  Accordingly, Kearse is not entitled to the dismissal of the assault and battery claims against him.  Affinita, Kearse's employer, is not entitled to the dismissal of the assault and battery claim against it, because an issue of fact exists whether Kearse's actions were within the scope of his duties and in furtherance of Affinita's business (see Fauntleroy v. EMM Group Holdings LLC, 133 A.D.3d 452, 453–454, 20 N.Y.S.3d 22 [1st Dept. 2015];  Jones v. Hiro Cocktail Lounge, 139 A.D.3d 608, 32 N.Y.S.3d 156 [1st Dept. 2016];  see also Langguth v. Bickford's Inc., 297 N.Y. 982, 80 N.E.2d 363 [1948]).  However, the assault and battery claims must be dismissed as against Lewis Foods, which the record shows did not exercise sufficient control over Kearse to make it his special employer and therefore cannot be held vicariously liable for any assault or battery committed by him (see Vargas v. Beer Garden, Inc., 15 A.D.3d 277, 278, 791 N.Y.S.2d 521 [1st Dept. 2005], lv denied 4 N.Y.3d 710, 797 N.Y.S.2d 816, 830 N.E.2d 1145 [2005];  McLaughlan v. BR Guest, Inc., 149 A.D.3d 519, 52 N.Y.S.3d 92 [1st Dept. 2017]).

The negligent hiring, training, supervision, and retention claims should be dismissed, as there is no evidence that either Lewis Foods or Affinita knew that Kearse had any violent propensities or that anything happened to alert them that an assault might take place (see Yeboah v. Snapple, Inc., 286 A.D.2d 204, 205, 729 N.Y.S.2d 32 [1st Dept. 2001];  Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 472, 126 N.Y.S.3d 122 [1st Dept. 2020]).  To the extent plaintiff Fambro's negligence claim against Lewis Foods is not duplicative of the negligent hiring and retention claim, it too must be dismissed.  Lewis Foods owed no duty to protect Fambro from an assault by Kearse since, given the absence of evidence of an escalating situation preceding the altercation, which lasted only slightly more than a minute, such an assault was unforeseeable and unexpected (McLaughlan, 149 A.D.3d at 520–521, 52 N.Y.S.3d 92;  Kiely v. Benini, 89 A.D.3d 807, 808–809, 932 N.Y.S.2d 181 [2d Dept. 2011]).

The court correctly declined to dismiss the false arrest claims asserted by Gibbs and Fambro and the malicious prosecution claims against Affinita and Kearse.  Issues of fact exist whether Kearse instigated the physical altercation or was the primary aggressor but falsely told police that plaintiffs had assaulted him (see D'Elia v. 58–35 Utopia Parkway Corp., 43 A.D.3d 976, 978, 843 N.Y.S.2d 339 [2d Dept. 2007] [false arrest];  Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 210, 746 N.Y.S.2d 141 [1st Dept. 2002] [malicious prosecution]).  Whether Kearse failed to tell the police that he had thrown a napkin dispenser because, as he and Affinita contend, he had been struck in the head and “knocked senseless” by one of the plaintiffs merely presents an issue of fact as to whether he falsely told police that plaintiffs had assaulted him.

The court correctly dismissed Gaynor's malicious prosecution claims against the City of New York and Lewis Foods.  Lewis Foods’ restaurant manager called 911, which is an insufficient basis to impose liability for malicious prosecution (see Du Chateau v. Metro–North Commuter R. Co., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12 [1st Dept. 1999]).  With regard to the City, Gaynor acknowledges that Kearse identified him as an assailant, which Gaynor was required to do to maintain his malicious prosecution claim against Affinita and Kearse.  This identification provided probable cause to arrest Gaynor (Kramer v. City of New York, 173 A.D.2d 155, 156, 569 N.Y.S.2d 67 [1st Dept. 1991], lv denied 78 N.Y.2d 857, 574 N.Y.S.2d 938, 580 N.E.2d 410 [1991]).  Probable cause is a complete defense to Gaynor's malicious prosecution claim (Hernandez v. City of New York, 100 A.D.3d 433, 953 N.Y.S.2d 199 [1st Dept. 2012], lv dismissed 21 N.Y.3d 1037, 972 N.Y.S.2d 532, 995 N.E.2d 847 [2013]), even if other avenues of investigation remained open to the police, such as procuring and reviewing surveillance video of the incident (see Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983];  Roberts v. City of New York, 171 A.D.3d 139, 147–148, 97 N.Y.S.3d 3 [1st Dept. 2019], affd 34 N.Y.3d 991, 114 N.Y.S.3d 42, 137 N.E.3d 497 [2019]).