JAMES BRAY PLAINTIFF APPELLANT v. SHAUN MULLINS DEFENDANT SANDRA BRAY AND HUMPF SANITATION SERVICE LLC DEFENDANTS RESPONDENTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages stemming from a physical altercation with defendant Shaun M. Mullins. At the time of the incident, defendant Sandra Bray (Bray), who is plaintiff's estranged wife, and Mullins, who was Bray's paramour, were driving trucks owned by defendant Humpf Sanitation Service, LLC (Humpf), a company that Bray was then majority owner of, to pick up and drop off dumpsters. Plaintiff and Bray had mutual stay-away orders of protection against each other. The order of protection in plaintiff's favor prohibited Bray from allowing Mullins to be on Humpf's property. After observing Mullins operating the Humpf truck, plaintiff pulled his vehicle over in front of Mullins's truck, blocking Mullins and Bray, who was driving a Humpf truck behind Mullins. Plaintiff approached Mullins and a physical altercation ensued, during which Mullins stabbed plaintiff in the neck with a knife, resulting in serious injuries to plaintiff. Plaintiff was subsequently arrested for violating the order of protection in favor of Bray. Bray and Humpf (collectively, defendants) moved for summary judgment dismissing the complaint against them. Supreme Court granted the motion. Plaintiff appeals, and we affirm.

Plaintiff contends that the court erred in granting those parts of the motion with respect to the first and second causes of action, sounding in assault and battery, against Humpf based on its determination that Mullins was not an employee of Humpf or was not acting within the scope of his employment at the time of the incident. We reject that contention. “Under the common-law doctrine of respondeat superior, an employer ․ may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment” (Rivera v State of New York, 34 NY3d 383, 389 [2019]; see Boatman v County of Onondaga, 229 AD3d 1214, 1215 [4th Dept 2024]). “Liability attaches for the tortious acts of ․ employees only if those acts were committed in furtherance of the employer's business and within the scope of employment” (Rivera, 34 NY3d at 389 [internal quotation marks omitted]). “Thus, if an employee for purposes of [their] own departs from the line of ․ duty so that for the time being [their] acts constitute an abandonment ․ of service, the [employer] is not liable” (id. [internal quotation marks omitted]).

Here, even assuming, arguendo, that Mullins was an employee of Humpf, we conclude that defendants met their initial burden on the motion of establishing that Mullins's acts against plaintiff were not committed in furtherance of the business and were not within the scope of employment (see Stribing v Bill Gray’s Inc., 166 AD3d 1503, 1505 [4th Dept 2018]; Gui Ying Shi v McDonald’s Corp., 110 AD3d 678, 680 [2d Dept 2013]; Kwak v Wolfenson, 258 AD2d 418, 418 [1st Dept 1999]; see generally Boatman, 229 AD3d at 1215), and we conclude that plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to plaintiff's further contention, Mullins's acts against plaintiff were not reasonably foreseeable because nothing about Mullins's conduct was a natural incident of the employment (see Riviello v Waldron, 47 NY2d 297, 304 [1979]).

We further conclude that the court did not err in granting that part of the motion with respect to the fourth cause of action, which asserted a claim for false arrest against Bray based on her complaint to the police accusing plaintiff of violating the order of protection in her favor, which resulted in a criminal proceeding against plaintiff. “Generally, a civilian will not be held liable for false arrest ․ if he or she merely seek[s] police assistance or furnish[es] information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed; to conclude that a civilian initiated a criminal prosecution, the civilian must have played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act” (Shioya v Hanah Country Inn Mgt. Corp., 207 AD3d 916, 920-921 [3d Dept 2022] [internal quotation marks omitted]; see Washington v Town of Greece, 126 AD3d 1552, 1553 [4th Dept 2015]). The civilian “must have affirmatively induced [law enforcement] to act ․ to the point where the [law enforcement agent] is not acting of his [or her] own volition” (Shioya, 207 AD3d at 921 [internal quotation marks omitted]). Here, defendants established that Bray merely reported the purported violations to the police and did not play an active role in the prosecution (see generally Quigley v City of Auburn, 267 AD2d 978, 980 [4th Dept 1999]). Defendants also established that there was probable cause to believe, after the police investigation, that plaintiff had committed criminal contempt (see id. at 979). Plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman, 49 NY2d at 562).

We have reviewed plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court