STATE FARM INSURANCE COMPANY v. (and a third-party action).

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

STATE FARM INSURANCE COMPANY, a/s/o Christopher Keith, respondent, v. CENTRAL PARKING SYSTEMS, INC., appellant. (and a third-party action).

Decided: May 31, 2005

THOMAS A. ADAMS, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Guastaferri & Nuccio, LLP, Brooklyn, N.Y. (Paul V. Nuccio of counsel), for appellant. Serpe, Andree & Kaufman, Huntington, N.Y. (Michael Kaufman and Cynthia G. Gamana of counsel), for respondent.

In a negligence action, inter alia, to recover damages for economic loss, the defendant appeals from an order of the Supreme Court, Queens County (Glover, J.), dated January 20, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were for summary judgment dismissing causes of action alleging vicarious liability under the doctrine of respondeat superior, negligent hiring, and negligent supervision, and substituting therefor a provision granting those branches of the motion;  as so modified, the order is affirmed, without costs or disbursements.

 The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment (see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95).   Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, as long as the tortious conduct is generally foreseeable and a natural incident of the employment (see Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   If, however, an employee “for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable” (Jones v. Weigand, 134 A.D. 644, 645, 119 N.Y.S. 441).   The defendant established its prima facie entitlement to judgment as a matter of law dismissing the plaintiff's claim under the theory of respondeat superior by producing evidence that the theft of the subject car, owned by the plaintiff's subrogor, by one of the defendant's employees, was outside the scope of that employee's duties as a car attendant (see Cherry v. Tucker, 5 A.D.3d 422, 773 N.Y.S.2d 405;  cf. O'Boyle v. Avis Rent-A-Car Sys., 78 A.D.2d 431, 435 N.Y.S.2d 296).   In opposition, the plaintiff failed to raise a triable issue of fact in this regard (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 The defendant also submitted sufficient evidence on its motion establishing its prima facie entitlement to judgment as a matter of law dismissing the plaintiff's causes of action alleging negligent hiring and negligent supervision.   In instances where an employer cannot be held vicariously liable for an employee's torts, the employer can still be held liable under theories of negligent hiring and negligent supervision (see Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316).   However, 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 (see Well v. Rambam, 300 A.D.2d 580, 753 N.Y.S.2d 512;  Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra ).   The defendant proffered sufficient evidence that it neither knew nor should have known of this employee's propensity to steal (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The plaintiff failed to raise a triable issue of fact in this regard as well (see Zuckerman v. City of New York, supra ).   Therefore, the Supreme Court should have dismissed these causes of action.

The Supreme Court properly determined that the defendant was not entitled to dismissal of the cause of action alleging breach of a bailment contract.   The existence of a bailment concerning the subject car was not disputed by the parties.   The defendant failed to show that it was not negligent, or, if negligent, that loss was not attributable to said negligence (see Castorina v. Rosen, 290 N.Y. 445, 49 N.E.2d 521;  Claflin v. Meyer, 75 N.Y. 260;  Jay Howard, Inc. v. Rothschild, 16 A.D.2d 628, 226 N.Y.S.2d 769;  Galowitz v. Magner, 208 A.D. 6, 203 N.Y.S. 421).

The defendant's remaining contentions are without merit.

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