| Babikian v Nikki Midtown, LLC |
| 2009 NY Slip Op 01722 [60 AD3d 470] |
| March 10, 2009 |
| Appellate Division, First Department |
| Aram Babikian, Respondent, v Nikki Midtown, LLC, etal., Appellants, et al., Defendant. |
—[*1] Alexander J. Wulwick, New York, for respondent.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about August7, 2008, which, in an action for personal injuries sustained in an attack against plaintiff bydefendant Berlingo outside premises operated by defendants-appellants (defendants) as anightclub and restaurant, insofar as appealed from as limited by the briefs, denied defendants'motion for summary judgment dismissing the complaint, and awarded plaintiff $100 motioncosts, unanimously modified, on the law and upon a search of the record, to dismiss plaintiff'ssecond and fourth causes of action for "negligent assault" and "negligent battery," respectively,and otherwise affirmed, without costs.
We modify to dismiss the second and fourth causes of action for "negligent assault" and"negligent battery" as no such causes of action exist under New York law (Smiley v North Gen. Hosp., 59 AD3d179 [2009]; Fariello v City of New York Bd. of Educ., 199 AD2d 461, 462 [1993]).As for plaintiff's causes of action for assault (first), battery (third), and negligent hiring againsteach of the defendants (fifth and sixth), defendants' motion should be denied regardless of thesufficiency of plaintiff's opposing papers, because defendants do not meet their prima facieburden of submitting evidentiary proof in admissible form sufficient to demonstrate as a matterof law that, as they claim, Berlingo was not in their employ at the time of the attack, or, even ifhe were, that the attack was not within the scope of his duties as a bouncer (see JMD Holding Corp. v Congress Fin.Corp., 4 NY3d 373, 384 [2005]). The unsworn incident report, which was apparentlyprepared shortly after the attack by defendants' general manager and is submitted by defendantsto show that the attack took place outside of their premises, is not authenticated by the attorney'saffirmation to which it is attached (seeZuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]; McDonald v TishmanInteriors Corp., 290 AD2d 266, 267 [2002]), and defendants do not provide an affidavit fromthe general manager. The affidavit of defendants' bookkeeper stating that Berlingo was in thenightclub on the night of the attack "solely as a patron" is inadmissible hearsay, since she doesnot aver that she spoke from firsthand knowledge [*2]andappellants point to no applicable exception (see Nucci v Proper, 95 NY2d 597, 602[2001]). Nor does the bookkeeper's affidavit lay the foundation necessary for the admissibility ofthe purported employment records and the computer printout submitted to show what employeeswere on duty on the date of the attack. The bookkeeper does not state that she is in charge ofemployment or employment records or otherwise has firsthand knowledge of Berlingo'semployment status, or that she prepared these documents and knows what they are and that theywere prepared in the regular course of business (see People v Kennedy, 68 NY2d 569,579-580 [1986]; Zuluaga, 45 AD3d at 480). Nor do plaintiff's allegations, liberallyconstrued, show that the site of the attack was so far removed from defendants' premises as to bebeyond the area that defendants might have expected their bouncers to control (see Riviello vWaldron, 47 NY2d 297, 303-304 [1979]). In view of the foregoing, we need not consider theparties' arguments relating to plaintiff's unpleaded potential cause of action for breach of thepublic establishment owner's common-law duty to control the conduct of persons on itspremises. The award of $100 motion costs was a proper exercise of discretion under CPLR 8106,which requires no showing of frivolousness (see Greenspan v Rockefeller Ctr. Mgt.Corp., 268 AD2d 236, 237 [2000]). Concur—Mazzarelli, J.P., Saxe, Nardelli,DeGrasse and Freedman, JJ.