| Coffey v City of New York |
| 2008 NY Slip Op 02689 [49 AD3d 449] |
| March 25, 2008 |
| Appellate Division, First Department |
| Angelette Coffey et al., Appellants, v City of New York etal., Respondents, et al., Defendant. (And Third-Party Actions.) Frank Marcotrigiano et al.,Appellants, v Angelette Coffey et al., Defendants, and City of New York et al., Respondents.Tammy Mack, Individually and as Administrator of the Estate of Pascal Lee Trent III, Deceased,Appellant, v Angelette Coffey et al., Defendants, and City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner of counsel),for municipal respondents. [*2]Marks, O'Neil, O'Brien & Courtney, P.C., Elmsford (JohnJ. Moran of counsel), for Edwin Rodriguez, respondent.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 25, 2006,which granted the municipal defendants' motions for summary judgment dismissing all claimsand cross claims against them, unanimously affirmed, without costs.
Plaintiff Angelette Coffey and decedents were injured on New Year's Eve 1998 when theirautomobile was rear-ended by a vehicle driven by defendant Rodriguez, a city correction officerlater determined to be intoxicated. The record reflects that Rodriguez had been sent for inpatientalcohol rehabilitation three years earlier, due to persistent lateness and absenteeism. Afterrelease, he failed to continue treatment on an outpatient basis. His record of employment revealsvarious infractions and a prior accident on the job, but with no alcohol involvement. Rodrigueztestified at deposition that he had been given two drinks by a fellow correction officer while onthe job that night, and after work he met two other officers and consumed two beers. Theaccident occurred two hours after he left work, as he headed home.
Plaintiffs seek to hold the City liable on the ground that it negligently retained Rodriguezdespite his history of alcohol abuse. They further allege the City breached its duty of care to thirdparties when it failed to ensure the completion of his alcohol rehabilitation program. Rodriguezadds that the City should be held responsible for the actions of the fellow employee who pliedhim with alcohol while on the job.
Recovery on a negligent hiring or retention theory requires a showing that the employer wason notice of the relevant tortious propensities of the wrongdoing employee (see Gomez v Cityof New York, 304 AD2d 374 [2003]). The only apparent consequence of Rodriguez's historyof problems with alcohol was his lateness and absenteeism. There is no evidence that the Cityknew of his propensity for drunk driving, and it could not reasonably have foreseen that he woulddrive while under the influence of alcohol (see Cygan v City of New York, 165 AD2d 58[1991], lv denied 78 NY2d 855 [1991]).
Nor have plaintiffs cited any facts that suggest a special relationship with the City sufficientto impose a duty of care on the latter for the conduct of its employee (see Laratro v City of New York, 8NY3d 79 [2006]). Nothing in this record suggests that the City required Rodriguez to enteran alcohol rehabilitation program for the benefit of plaintiffs or the public at large. The programwas an attempt to address the employee's attendance problems only. Moreover, there is no basison which to impute knowledge to the City that Rodriguez's failure to complete the programwould result in harm to third parties. In any event, plaintiffs could not have relied on the City'sensuring that Rodriguez complete his alcohol rehabilitation program, since they had noknowledge of it. Concur—Tom, J.P., Andrias, Nardelli and Sweeny, JJ.