Britta Kwamya, respondent, v. LLC (2026)

Argued—April 21, 2026

DECISION & ORDER

O/

In an action, inter alia, to recover damages for personal injuries, the defendant Elements Production, LLC, appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated January 30, 2025.  The order, insofar as appealed from, denied that defendant's motion pursuant to CPLR 3211(a), in effect, to dismiss the amended complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, with costs, and the motion of the defendant Elements Production, LLC, pursuant to CPLR 3211(a), in effect, to dismiss the amended complaint insofar as asserted against it is granted.

The plaintiff commenced this action pursuant to the Adult Survivors Act (see id. § 214–j) against the defendants Elements Production, LLC (hereinafter Elements), and Jeffrey Lewis, inter alia, to recover damages for personal injuries.  The plaintiff alleges that she was sexually assaulted by Lewis in his apartment.  Elements moved pursuant to CPLR 3211(a), in effect, to dismiss the amended complaint insofar as asserted against it.  In an order dated January 30, 2025, the Supreme Court, among other things, denied Elements's motion.  Elements appeals.

The Supreme Court should have granted that branch of Elements's motion which was pursuant to CPLR 3211(a)(7), in effect, to dismiss the amended complaint insofar as asserted against it.  “ ‘On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Mohammad v. Rehman, 236 AD3d 892, 893, quoting Weinstein v. Levitin, 208 AD3d 531, 532).  “ ‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’ ” (Laine v Empire HealthChoice Assur., Inc., 234 AD3d 833, 835, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142).

“ ‘Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment’ ” (Browne v. Lyft, Inc., 219 AD3d 445, 446, quoting N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251;  see Riviello v. Waldron, 47 N.Y.2d 297, 302).  “ ‘Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment’ ”(Browne v. Lyft, Inc., 219 AD3d at 446, quoting Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933;  see Riviello v. Waldron, 47 N.Y.2d at 304).  “An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business” (Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1359 [internal quotation marks omitted];  see Doe v Grant Wilfley Casting, Inc., 246 AD3d 1038, 1039).  “[W]here an employee's actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment” (Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1360;  see Doe v Grant Wilfley Casting, Inc., 246 AD3d at 1039).  “A sexual assault perpetrated by an employee is not in furtherance of an employer's business and is a clear departure from the scope of employment, having been committed for wholly personal motives” (Montalvo v Episcopal Health Servs., Inc., 172 AD3d at 1360;  see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d at 251;  Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d at 933).

Here, the amended complaint asserted causes of action against Elements alleging negligent infliction of emotional distress, intentional infliction of emotional distress, a violation of the Victims of Gender–Motivated Violence Protection Law (Administrative Code of City of N.Y. § 10–1101 et seq.), as well as three causes of action alleging battery.  The causes of action alleging battery and a violation of the Victims of Gender–Motivated Violence Protection Law were premised entirely on the theory of respondeat superior based on Lewis's alleged sexual assault.  Lewis's alleged conduct was a departure from his employment duties and was committed solely for personal motives and, as such, cannot be said to have been committed within the scope of employment (see Doe v Grant Wilfley Casting, Inc., 246 AD3d at 1039;  Browne v. Lyft, Inc., 219 AD3d at 447).  Moreover, the amended complaint states that Lewis's conduct was undertaken outside the scope of his employment.

Further, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress.  “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct;  (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress;  (3) causation;  and (4) severe emotional distress” (Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710).  “In order to state a cause of action to recover damages for intentional infliction of emotional distress, the pleading must allege ‘conduct [that] has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Ratto v. Oliva, 195 AD3d 870, 873, quoting Murphy v. American Home Prods.  Corp., 58 N.Y.2d 293, 303).  Here, accepting as true the allegations in the amended complaint, Elements's alleged conduct did not satisfy that rigorous standard (see Worob v. Campbell, 246 AD3d 851, 854;  Oluwo v. Mills, 228 AD3d 879, 881).

The amended complaint also failed to state a cause of action for negligent infliction of emotional distress.  “A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, generally must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety” (A.R. v. City of New York, 206 AD3d 768, 770 [alteration and internal quotation marks omitted] ).  Here, the plaintiff failed to sufficiently allege either that she feared for her own safety in the workplace or that her physical safety was endangered as a result of Elements's conduct (see Worob v. Campbell, 246 AD3d at 855;  Napoli v. New York Post, 175 AD3d 433, 434).

The parties' remaining contentions need not be reached in light of our determination.

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court