KWAK v. Everett Payne, Defendant.

Reset A A Font size: Print

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

Steward KWAK, Plaintiff-Respondent, v. Carol B. WOLFENSON, Defendant-Appellant, Everett Payne, Defendant.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and LERNER, JJ. Michael J. Roberts, for plaintiff-respondent. Peter Kolodny, for defendant-appellant.

Order, Supreme Court, New York County (Emily Goodman, J.), entered March 17, 1998, which denied defendant-appellant's motion for summary judgment dismissing the complaint as against her, unanimously modified, on the law, to dismiss the first cause of action for assault, and otherwise affirmed, without costs.

 We agree with the motion court that an issue of fact exists as to whether plaintiff's alleged assailant was an employee of appellant at the time of the alleged assault, and that such issue precludes summary judgment in appellant's favor dismissing the cause of action against her for negligent supervision and hiring.   However, assuming in plaintiff's favor that the assailant was in appellant's employ, appellant cannot be held vicariously liable for the assault, there being no facts tending to show that the alleged assault was within the scope of the assailant's alleged duties as a secretary in appellant's law office, and no claim that appellant authorized, instigated or condoned the assault (see, Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278;  Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 123, 643 N.Y.S.2d 511, 666 N.E.2d 216).   Accordingly, we modify to dismiss the cause of action for assault.

MEMORANDUM DECISION.