ROSENBLATT v. Lots O Bagels, third-Party defendant-Appellant. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, the third-party defendant appeals from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), dated March 27, 2025.  The order, insofar as appealed from, denied that branch of the third-party defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party cause of action for contribution.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the third-party defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party cause of action for contribution is granted.

In October 2022, the plaintiff commenced this action to recover damages for personal injuries and wrongful death on behalf of the estate of Alfredo Cabrera Licona (hereinafter the plaintiff's decedent) against, among others, the defendants Ever E. Mora and Anheuser–Busch Distributors of New York, Inc. (hereinafter Anheuser–Busch).  The plaintiff alleged that the plaintiff's decedent, while operating an electric scooter, was struck by a motor vehicle operated by Mora.

Thereafter, Mora and Anheuser–Busch (hereinafter together the third-party plaintiffs) commenced a third-party action against Lots O Bagels (hereinafter Bagels), the plaintiff's decedent's employer at the time of the accident, inter alia, for contribution.  The third-party plaintiffs alleged that Bagels was negligent in supervising and training the plaintiff's decedent, which was a proximate cause of the accident.  Bagels moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the third-party cause of action for contribution.  In an order dated March 27, 2025, the Supreme Court, inter alia, denied that branch of the motion.  Bagels appeals.

“To sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, if any, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries” (Santoro v. Poughkeepsie Crossings, LLC, 180 A.D.3d 12, 17, 115 N.Y.S.3d 368 [alteration and internal quotation marks omitted] ).  “All that is required for contribution is that two people be held liable for the same personal injury” (id. [internal quotation marks omitted];  see Green Bus Lines v. Consolidated Mut. Ins. Co., 74 A.D.2d 136, 147–148, 426 N.Y.S.2d 981).

Where a negligence claim relates to an employer's supervision of an employee, the complaint must include allegations that:  “(1) the employer had actual or constructive knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm;  (2) the employer knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control;  and (3) the employee engaged in tortious conduct on the employer's premises or using property or resources available to the employee only through their status as an employee” (Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157, 217 N.E.3d 8;  see Brauner v. Locust Val. Cent. Sch. Dist., 234 A.D.3d 914, 915, 226 N.Y.S.3d 298).  “The employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable decisions respecting the hiring, ․ retention, or supervision of the employee” (Brauner v. Locust Val. Cent. Sch. Dist., 234 A.D.3d at 915, 226 N.Y.S.3d 298;  see Spina v. Browning Hotel Props., LLC, 230 A.D.3d 613, 614, 217 N.Y.S.3d 169).

Here, there are no allegations in the third-party complaint that Bagels had actual or constructive knowledge of the plaintiff's decedent's propensity for the conduct resulting in his injury, or that Bagels knew, or should have known, that the plaintiff's decedent was performing his delivery job in a dangerous or negligent manner (see Ponce v. Miao Ling Liu, 123 A.D.3d 786, 787, 998 N.Y.S.2d 450;  Seldin v. Smith, 76 A.D.3d 623, 625, 907 N.Y.S.2d 36).  Similarly, the third-party complaint does not state how the plaintiff's decedent's operation of the scooter was negligent or dangerous.  Accordingly, the third-party complaint failed to set forth nonconclusory factual allegations, which, if true, would establish the existence of a connection between Bagels's purported negligent supervision and training and the accident (see 25–86 41st St., LLC v. Chong, 235 A.D.3d 813, 816, 228 N.Y.S.3d 593;  Santoro v. Poughkeepsie Crossings, LLC, 180 A.D.3d at 18–21, 115 N.Y.S.3d 368).

While the third-party plaintiffs correctly contend that, “in the proper case, a party can seek contribution from a plaintiff's employer if the plaintiff's injuries stem in part or in whole from a lack of training or other independent actions on the part of an employer” (Stroschine v. Prudential–Bache Sec., 207 A.D.2d 828, 829, 616 N.Y.S.2d 545;  see Lattanzi v International Bus. Machs. Corp., 237 A.D.2d 259, 260, 655 N.Y.S.2d 398), here, the third-party complaint did not include allegations which, even if taken as true, stated such a case.

Accordingly, the Supreme Court should have granted that branch of Bagels's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third-party cause of action for contribution (see 25–86 41st St., LLC v. Chong, 235 A.D.3d at 816, 228 N.Y.S.3d 593;  Santoro v. Poughkeepsie Crossings, LLC, 180 A.D.3d at 21, 115 N.Y.S.3d 368;  Ponce v. Miao Ling Liu, 123 A.D.3d at 787, 998 N.Y.S.2d 450).

In light of our determination, we need not reach Bagels's remaining contention.

CHAMBERS, J.P., VOUTSINAS, TAYLOR and HOM, JJ., concur.