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发帖数: 18007 | 7 Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D39254
G/nl
AD3d
Argued - June 17, 2013
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2012-08907 DECISION & ORDER
Gui Ying Shi, respondent, v McDonald’s Corporation,
et al., defendants, 5121 5th Avenue, LLC, appellant.
(Index No. 6964/10)
Kenney Shelton Liptak Nowak LLP, New York, N.Y. (Michael L. Stonberg of
counsel), for appellant and defendants.
Caruso Glynn, LLC, Fresh Meadows, N.Y. (Lawrence C. Glynn of counsel), for
respondent.
In an action to recover damages for personal injuries, the defendant 5121
5th Avenue,
LLC, appeals from so much of an order of the Supreme Court, Kings County (
Schmidt, J.), dated
June 6, 2012, as granted that branch of the plaintiff’s cross motion which
was for summary judgment
on the issue of liability on the seventh and eighth causes of action.
ORDERED that the order is reversed insofar as appealed from, on the law,
with costs,
and that branch of the plaintiff’s cross motion which was for summary
judgment on the issue of
liability on the seventh and eighth causes of action is denied.
The defendant Marisol Acosta, an employee of a McDonald’s restaurant owned
by
the defendant franchisee 5121 5th Avenue, LLC (hereinafter 5121), allegedly
assaulted the plaintiff,
a customer at the restaurant. The alleged assault occurred after Acosta and
the plaintiff had a heated
exchange over whether the plaintiff had ordered a cheeseburger rather than a
hamburger for her son.
The general manager of 5121 was in his office when the dispute began near
the counter. Upon being
informed that a problem had arisen and before the alleged assault occurred,
the manager went to the
counter to try to address the problem.
October 2, 2013 Page 1.
GUI YING SHI v McDONALD’S CORPORATION
The plaintiff commenced this action to recover damages for her personal
injuries
against, among others, 5121, alleging that 5121 was vicariously liable for
Acosta’s tortious conduct
and that it negligently hired and supervised Acosta (seventh and eighth
causes of action). The
Supreme Court granted that branch of the plaintiff’s cross motion which was
for summary judgment
on the issue of liability on the seventh and eighth causes of action.
“Under the doctrine of respondeat superior, an employer can be held
vicariously liable
for the torts committed by an employee acting within the scope of the
employment” (
Fernandez v
Rustic Inn, Inc
., 60 AD3d 893, 896;
see Riviello v Waldron
, 47 NY2d 297, 302;
Quiroz v Zottola
,
96 AD3d 1035, 1037;
Fenster v Ellis
, 71 AD3d 1079, 1080;
Quadrozzi v Norcem, Inc
., 125 AD2d
559, 561). “An act is considered to be within the scope of employment if it
is performed while the
employee is engaged generally in the business of his [or her] employer, or
if his [or her] act may be
reasonably said to be necessary or incidental to such employment” (
Davis v Larhette
, 39 AD3d 693,
694;
see Judith M. v Sisters of Charity Hosp
., 93 NY2d 932, 933;
Pinto v Tenenbaum
, 105 AD3d
930, 931;
Holmes v Gary Goldberg & Co., Inc
., 40 AD3d 1033, 1034). An employer, however,
cannot be held vicariously liable for its employee’s alleged tortious
conduct if the employee was
acting solely for personal motives unrelated to the furtherance of the
employer’s business at the time
of the incident (
see Pinto v Tenenbaum
, 105 AD3d at 931;
Horvath v L & B Gardens, Inc
., 89 AD3d
803, 803;
Yildiz v PJ Food Serv., Inc
., 82 AD3d 971, 972;
Fernandez v Rustic Inn, Inc
., 60 AD3d
at 896). “Similarly, the employer is not vicariously liable where the
employee’s tortious conduct
could not have been reasonably expected by the employer” (
Yildiz v PJ Food Serv., Inc
., 82 AD3d
at 972;
see Carnegie v J.P. Phillips, Inc
., 28 AD3d 599, 600;
Oliva v City of New York
, 297 AD2d
789, 791). Whether an employee was acting within the scope of his or her
employment is generally
a question of fact for the jury (
see Riviello v Waldron
, 47 NY2d at 303;
Piquette v City of New York
,
4 AD3d 402, 403).
Here, the plaintiff failed to establish, prima facie, that Acosta was acting
within the
scope of her employment with 5121 when she allegedly assaulted the plaintiff
(
see Evans v City of
Mount Vernon
, 92 AD3d 829;
Carnegie v J.P. Phillips, Inc
., 28 AD3d 599;
State Farm Ins. Co. v
Central Parking Sys., Inc.
, 18 AD3d 859), and that Acosta’s alleged conduct was reasonably
foreseeable by 5121 (
see Yildiz v PJ Food Serv., Inc
., 82 AD3d at 972;
Carnegie v J.P. Phillips, Inc
.,
28 AD3d at 600).
Further, the plaintiff did not establish, prima facie, that 5121 was
negligent in hiring
or supervising Acosta. The plaintiff failed to submit evidence sufficient to
show that 5121 knew or
should have known of Acosta’s alleged propensity for the conduct which
resulted in the plaintiff’s
alleged injury (
see Evans v City of Mount Vernon
, 92 AD3d at 830;
Yildiz v PJ Food Serv., Inc
., 82
AD3d at 972;
Carnegie v J.P. Phillips, Inc
., 28 AD3d at 600;
State Farm Ins. Co. v Central Parking
Sys., Inc
., 18 AD3d at 860).
In light of our determination, we need not consider the sufficiency of 5121
’s
opposition papers (
see Winegrad v New York Univ. Med. Ctr
., 64 NY2d 851, 852).
Accordingly, the Supreme Court should have denied that branch of the
plaintiff’s
cross motion which was for summary judgment on the issue of liability on the
seventh and eighth
October 2, 2013 Page 2.
GUI YING SHI v McDONALD’S CORPORATION |
