OLIVA v. CITY OF NEW YORK

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

Sonia OLIVA, et al., plaintiffs-respondents, v. CITY OF NEW YORK, defendant-respondent, Police Athletic League, appellant.

Decided: September 30, 2002

SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN and THOMAS A. ADAMS, JJ. Feder, Goldstein, Tanenbaum & D'Errico, LLP, Carle Place, N.Y. (Steven F. Goldstein and Steven I. Brizel of counsel), for appellant. Martin L. Ginsberg, Kew Gardens, N.Y. (Susan R. Nudelman of counsel), for plaintiffs-respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, etc., the defendant Police Athletic League appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated February 27, 2002, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against the appellant, and substituting therefor a provision granting the motion;  as so modified, the order is affirmed insofar as reviewed, with one bill of costs to the appellant payable by the plaintiffs-respondents.

The plaintiff David Oliva (hereinafter the plaintiff), then a nine-year-old sixth-grader, alleges that he was assaulted by Reginald Gibson, a youth counselor employed by the defendant Police Athletic League (hereinafter PAL).

 The Supreme Court properly granted the motion of the defendant City of New York (hereinafter the City) for summary judgment dismissing all cross claims insofar as asserted against it.   A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Here, the City demonstrated the absence of any triable issue of fact with respect to its claim that Gibson was not an employee of the City. Therefore, the motion was sufficient to make out a prima facie case for summary judgment (see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, supra).   In opposition, PAL and the plaintiffs failed to raise a triable issue of fact.

 The Supreme Court improperly denied PAL's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his employment (see Brancato v. Dee & Dee Purchasing, 296 A.D.2d 518, 745 N.Y.S.2d 564;  Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   However, there is no vicarious liability on the part of the employer for torts committed by the employee solely for personal motives unrelated to the furtherance of the employer's business (see Riviello v. Waldron, supra;  Vega v. Northland Mktg. Corp., 289 A.D.2d 565, 735 N.Y.S.2d 213).

 Here, the plaintiff alleges that he was assaulted by Gibson while he waited for a van to take him home.   Gibson's actions in allegedly assaulting the plaintiff were not incidental to the furtherance of PAL's business interests and fell outside the scope of Gibson's employment.   Moreover, Gibson's allegedly intentional conduct could not reasonably have been expected by his employer (see Vega v. Northland Mktg. Corp., supra).

 In addition, PAL is entitled to summary judgment dismissing the cause of action alleging that it negligently hired Gibson.   A necessary element of a cause of action for negligent hiring is that “the employer knew or should have known of the employee's propensity for the conduct which caused the injury” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791, cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316;  see Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 403, 611 N.Y.S.2d 615).   There is no evidence that PAL had any such knowledge, or that any such evidence even existed.

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