GLOVER v. AUGUSTINE

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Supreme Court, Appellate Division, First Department, New York.

Carmela GLOVER, Plaintiff-Respondent, v. George AUGUSTINE, Defendant,

Ponte Equities, Inc., et al., Defendants-Appellants. Carmela Glover, Plaintiff-Appellant, v. George Augustine, Defendant, Ponte Equities, Inc., et al., Defendants-Respondents.

Decided: March 20, 2007

FRIEDMAN, J.P., BUCKLEY, CATTERSON, MALONE, JJ. Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for Ponte Equities, Inc. and Almavi Enterprise LLC, appellants/respondents. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), and Everett J. Petersson, Brooklyn for Carmela Glover, respondent/appellant.

Orders, Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 4, 2006, which, to the extent appealed from, denied defendants-appellants' motion for summary judgment insofar as it sought dismissal of plaintiff's causes of action for negligent hiring and negligent premises security, and granted the motion of defendants-appellants' insofar as it sought a psychological examination of plaintiff, unanimously affirmed, without costs.

 Inasmuch as the evidence of record shows that defendants-appellants employed defendant Augustine as an elevator operator without conducting a background check, even though they were aware that he had been convicted of a felony, a triable issue is raised as to whether Augustine was negligently hired.   Indeed, a routine check would have revealed that Augustine had a lengthy criminal record, including convictions for sexual abuse in the first degree, and that he was a registered sex offender.   Under these circumstances, it is not possible to conclude as a matter of law that Augustine's attack upon plaintiff, an office-worker in the building where Augustine was employed, was unforeseeable (see T.W. v. City of New York, 286 A.D.2d 243, 245-246, 729 N.Y.S.2d 96 [2001];  Brandt v. Elghanayan, 242 A.D.2d 240, 662 N.Y.S.2d 17 [1997] ).   Although defendants-appellants maintain that the negligent hiring cause of action must be dismissed because, pursuant to Correction Law § 752, they could not have denied Augustine employment by reason of his criminal convictions, that provision does not require employment involving “an unreasonable risk to ․ to the safety or welfare of specific individuals or the general public” and there is, at the very least, an issue of fact as to whether Augustine's hiring entailed such a risk (see T.W. v. City of New York, 286 A.D.2d at 246, 729 N.Y.S.2d 96).

Inasmuch as there are triable issues as to whether Augustine's attack upon plaintiff was foreseeable, defendants-appellants' characterization of the attack as a sudden and spontaneous event for which they should not be held responsible, is unavailing as a basis for summary judgment (cf. Lindskog v. Southland Rest., 160 A.D.2d 842, 554 N.Y.S.2d 276 [1990] ).

 The court properly exercised its discretion in granting the request for a psychological examination of plaintiff.   Plaintiff has claimed psychological injury from the attack and would not sustain cognizable prejudice by appearing for an examination (see Woods v. Daniella Realty Corp., 15 A.D.3d 231, 789 N.Y.S.2d 479 [2005];  May v. American Red Cross, 282 A.D.2d 285, 722 N.Y.S.2d 868 [2001] ).