PORCELLI v. KEY FOOD STORES CO OPERATIVE INC (2007)

In an action, inter alia, to recover damages for assault, the defendant Key Food Stores Co-Operative, Inc., d/b/a Key Food, appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 5, 2007, which denied its motion pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 843 N.Y.S.2d 104;  Parsippany Constr. Co., Inc. v. Clark Patterson Assoc., P.C., 41 A.D.3d 805, 839 N.Y.S.2d 179;  Montes Corp. v. Charles Freihofer Baking Co., Inc., 17 A.D.3d 330, 791 N.Y.S.2d 834).  “ ‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claim,’ is irrelevant to the determination of a pre-disclosure CPLR 3211 motion to dismiss” (Palo v. Cronin & Byczek, LLP, 43 A.D.3d 1127, 843 N.Y.S.2d 149 [2d Dept. 2007], quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231).   Furthermore, a motion to dismiss a complaint on the ground that it is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted only “where the documentary evidence utterly refutes plaintiff's factual allegations,” and conclusively establishes a defense to the asserted claims as a matter of law (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Long v. Allen AME Transportation Corp., 43 A.D.3d 1114, 841 N.Y.S.2d 798 [2d Dept. 2007];  Sheridan v. Town of Orangetown, 21 A.D.3d 365, 799 N.Y.S.2d 575).

 Applying these principles here, the Supreme Court properly denied the appellant's pre-answer motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it.   The complaint adequately states causes of action to recover damages from the appellant for torts allegedly committed by its employee under the doctrine of respondeat superior (see Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278), and on theories of negligent hiring and supervision, which are not required to be pleaded with specificity (see CPLR 3013;  Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 162, 654 N.Y.S.2d 791, cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316).   Contrary to the appellant's contention, the printed job description for the position held by its employee did not conclusively establish that the employee was acting outside of the scope of his employment, and for wholly personal reasons, when he allegedly assaulted the plaintiff (see Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278;  Ramos v. Jake Realty Co., 21 A.D.3d 744, 801 N.Y.S.2d 566;  Beauchamp v. City of New York, 3 A.D.3d 465, 771 N.Y.S.2d 129;  Baptiste v. New York City Tr. Auth., 276 A.D.2d 730, 715 N.Y.S.2d 156;  Smalls v. New York City Tr. Auth., 264 A.D.2d 771, 695 N.Y.S.2d 121;   Jaccarino v. Supermarkets Gen. Corp., 252 A.D.2d 572, 676 N.Y.S.2d 606).