VEGA v. NORTHLAND MARKETING CORP

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

Katherine VEGA, Appellant, v. NORTHLAND MARKETING CORP., d/b/a Citgo, Respondent, et al., Defendant.

Decided: December 31, 2001

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, HOWARD MILLER and BARRY A. COZIER, JJ. Jay H. Tanenbaum, New York, N.Y. (Laurence Warshaw of counsel), for appellant. Brea Yankowitz & Sosin, P.C., Floral Park, N.Y. (Arthur I. Yankowitz of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), dated March 19, 2001, as granted the cross motion of the defendant Northland Marketing Corp., d/b/a Citgo, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly granted the cross motion of the defendant Northland Marketing Corp., d/b/a Citgo (hereinafter Citgo), for summary judgment.   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 or her employment (see, 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;  Flowers v. New York City Tr. Auth., 267 A.D.2d 132, 700 N.Y.S.2d 27;  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;  Ray v Metropolitan Transp. Auth., 221 A.D.2d 613, 634 N.Y.S.2d 160, cert. denied sub nom. Ray v. Willett, 519 U.S. 822, 117 S.Ct. 80, 136 L.Ed.2d 38;  Adams v. New York City Tr. Auth., 211 A.D.2d 285, 626 N.Y.S.2d 455, affd. 88 N.Y.2d 116, 643 N.Y.S.2d 511, 666 N.E.2d 216;  Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 611 N.Y.S.2d 615).   The actions of the defendant Milkid Singh, a gasoline attendant at Citgo, in striking and pushing the plaintiff when she inquired about the gasoline pump's meter while purchasing gasoline from Citgo were not incidental to the furtherance of Citgo's business and fell outside the scope of Singh's employment.   Moreover, Singh's intentional conduct could not have reasonably been expected by his employer (cf., Helbig v. City of New York, 212 A.D.2d 506, 622 N.Y.S.2d 316).

Furthermore, there is no evidence that Citgo had negligently hired, or failed to properly supervise Singh.   The plaintiff failed to raise an issue of fact as to whether Citgo knew or should have known of Singh's propensity for the conduct which caused the plaintiff's injury (see, Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra, at 161, 654 N.Y.S.2d 791;  Kirkman v. Astoria Gen. Hosp., supra, at 403, 611 N.Y.S.2d 615;  Detone v. Bullit Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575).

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