KERZHNER v. Elliot Ray, Defendant. (2018)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 16, 2017, which granted the motion of defendants G4S Government Solutions, Inc., and Wackenhut Services, Incorporated (collectively defendants) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that, while at a Social Security Administration office to address an issue with his benefits, defendant Ray, a security guard employed by defendants, pushed him to the ground without provocation.  Plaintiff's intentional tort claims were previously dismissed as barred by the statute of limitations, leaving only a claim that defendants were liable for negligent hiring, training and supervision (see 138 A.D.3d 564, 30 N.Y.S.3d 620 [1st Dept. 2016] ).

Supreme Court properly granted defendants' motion.  Defendants submitted an affidavit from the former deputy general manager for defendant G4S Government Solutions' operations, who stated, among other things, that the security guard's duties include removing individuals from the premises.  Since Ray acted within the scope of his employment in ushering plaintiff out of the office, his actions were within the scope of his employment and thus, the negligent hiring claim must be dismissed (see Karoon v. New York City Tr. Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 [1st Dept. 1997];  Ashley v. City of New York, 7 A.D.3d 742, 779 N.Y.S.2d 502 [2d Dept. 2004] ).

Plaintiff's opposition failed to raise an issue of fact as to whether defendant Ray was acting within the scope of his employment.  Indeed, the video of the incident shows defendant Ray escorting plaintiff out of the premises.

Plaintiff's argument that dismissal is not required because he is seeking punitive damages (see Karoon at 324, 659 N.Y.S.2d 27) is unavailing, as the claim for punitive damages was previously dismissed and the dismissal was affirmed by this Court (see 138 A.D.3d at 564, 30 N.Y.S.3d 620).

We have considered plaintiff's remaining arguments and find them unavailing.