| Porcelli v Key Food Stores Co-Op., Inc. |
| 2007 NY Slip Op 08206 [44 AD3d 1020] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Frank Porcelli, Respondent, v Key Food StoresCo-Operative, Inc., Doing Business as Key Food, Appellant, et al.,Defendant. |
—[*1] Anthony J. Montiglio, Mineola, N.Y., for respondent.
In an action, inter alia, to recover damages for assault, the defendant Key Food StoresCo-Operative, Inc., doing business as Key Food, appeals from an order of the Supreme Court,Kings County (Ruchelsman, J.), dated January 5, 2007, which denied its motion pursuant toCPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action,the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit ofevery possible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Parola, Gross & Marino, P.C. vSusskind, 43 AD3d 1020 [2007]; Parsippany Constr. Co., Inc. v Clark Patterson Assoc.,P.C., 41 AD3d 805 [2007]; Montes Corp. v Charles Freihofer Baking Co., Inc., 17AD3d 330 [2005]). " 'Whether the complaint will later survive a motion for summary judgment,or whether the plaintiff will ultimately be able to prove its claim,' is irrelevant to thedetermination of a predisclosure CPLR 3211 motion to dismiss" (Palo v Cronin & Byczek,LLP, 43 AD3d 1127 [2007], quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz,Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]). Furthermore, a motion to dismiss acomplaint on the ground that it is barred by documentary evidence pursuant to CPLR 3211 (a) (1)may [*2]be appropriately granted only "where the documentaryevidence utterly refutes plaintiff's factual allegations," and conclusively establishes a defense tothe asserted claims as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2dat 326; see Leon v Martinez, 84 NY2d at 88; Long v Allen AME Transp. Corp.,43 AD3d 1114 [2007]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005]).
Applying these principles here, the Supreme Court properly denied the appellant's pre-answermotion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst it. The complaint adequately states causes of action to recover damages from theappellant for torts allegedly committed by its employee under the doctrine of respondeat superior(see Riviello v Waldron, 47 NY2d 297 [1979]), and on theories of negligent hiring andsupervision, which are not required to be pleaded with specificity (see CPLR 3013;Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162 [1997], certdenied 522 US 967 [1997]). Contrary to the appellant's contention, the printed jobdescription for the position held by its employee did not conclusively establish that the employeewas acting outside of the scope of his employment, and for wholly personal reasons, when heallegedly assaulted the plaintiff (see Riviello v Waldron, 47 NY2d 297 [1979];Ramos v Jake Realty Co., 21 AD3d 744 [2005]; Beauchamp v City of New York,3 AD3d 465 [2004]; Baptiste v New York City Tr. Auth., 276 AD2d 730 [2000];Smalls v New York City Tr. Auth., 264 AD2d 771 [1999]; Jaccarino v SupermarketsGen. Corp., 252 AD2d 572 [1998]). Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ.,concur.