D.T., etc., respondent, v. SPORTS AND ARTS IN SCHOOLS FOUNDATION INC (2021)

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring and negligent retention, the defendant appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered February 21, 2019.  The order, insofar as appealed from, denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for negligent hiring and negligent retention.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of certain alleged sexual acts committed upon the plaintiff, a minor, by nonparty Tyshaunna Roberts.  At all relevant times, the plaintiff was a student in the defendant's after-school and summer camp programs, which assisted children with their homework and operated classes such as dance.  Roberts, who was employed by the defendant, worked in those programs and served as a dance instructor.

The plaintiff, by her mother and natural guardian, commenced this action alleging, inter alia, that the defendant was negligent in its hiring and retention of Roberts.  The defendant moved, inter alia, for summary judgment dismissing the causes of action alleging negligent hiring and negligent retention.  The Supreme Court denied those branches of the motion, and the defendant appeals.

Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent hiring and retention of the employee (see Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d 634, 635–636, 85 N.Y.S.3d 562;  Chichester v. Wallace, 150 A.D.3d 1073, 1074, 55 N.Y.S.3d 378;  Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791).  “[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d at 161, 654 N.Y.S.2d 791;  see Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d at 635–636, 85 N.Y.S.3d 562;  S.C. v. New York City Dept. of Educ., 97 A.D.3d 518, 519–520, 949 N.Y.S.2d 71;  Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278, 528 N.Y.S.2d 575).  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 care in making decisions respecting the hiring and retention’ ” of the employee (Sandra M. v. St. Luke's Roosevelt Hosp. Ctr., 33 A.D.3d 875, 878–879, 823 N.Y.S.2d 463, quoting Detone v. Bullit Courier Serv., Inc., 140 A.D.2d at 279, 528 N.Y.S.2d 575;  see Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d at 635–636, 85 N.Y.S.3d 562).

Here, the defendant failed to make a prima facie showing that the defendant was not negligent with respect to the hiring of Roberts.  The defendant's submissions in support of its motion raised a triable issue of fact as to whether the defendant took the appropriate measures to evaluate Roberts's employment and fitness at the time she was hired (see Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d at 636, 85 N.Y.S.3d 562;  Chichester v. Wallace, 150 A.D.3d at 1075, 55 N.Y.S.3d 378;  Giangrasso v. Association for Help of Retarded Children, 243 A.D.2d 680, 664 N.Y.S.2d 569;  Pratt v. Ocean Med. Care, P.C., 236 A.D.2d 380, 381, 653 N.Y.S.2d 608).  Moreover, with regard to the negligent retention cause of action, there is a triable issue of fact as to whether the defendant had notice of the potential for harm to the plaintiff by Roberts (see Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d at 636, 85 N.Y.S.3d 562).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action to recover damages for negligent hiring and negligent retention.

RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.