| Danko v Forest Lake Camp, Inc. |
| 2009 NY Slip Op 05505 [63 AD3d 1099] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Pamela Danko, Appellant, v Forest Lake Camp, Inc.,Respondent. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Harris J.Zakarin of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals (1) from anorder of the Supreme Court, Putnam County (O'Rourke, J.), dated April 24, 2008, which grantedthe defendant's motion for summary judgment dismissing the complaint, (2) from an order of thesame court, also dated April 24, 2008, which, in effect, denied, as academic, her motion forsummary judgment on the issue of liability, and (3), as limited by her brief, from so much of anorder of the same court dated July 17, 2008, as, upon reargument, in effect, adhered to theoriginal determinations in the orders dated April 24, 2008.
Ordered that the appeals from the orders dated April 24, 2008 are dismissed, as those orderswere superseded by the order dated July 17, 2008, made upon reargument; and it is further,
Ordered that the order dated July 17, 2008 is affirmed insofar as appealed from, and itfurther,
Ordered that one bill of costs is awarded to the defendant.
During the summer of 2006, the plaintiff's 16 year-old son James Danko (hereinafter Danko)was attending the defendant's camp in the Adirondack Mountains, as a camper andcounselor-in-training. One "[v]ery dark" night, as Danko described it at his deposition, Dankoand a fellow camper, Scott Irwin, were sitting on the porch of a cabin within the campgrounds.At some point, Irwin began to shine his flashlight at an individual who was walking a distanceaway, in an attempt, according to Danko's deposition testimony, to ascertain the identity of thepasserby. That individual was, in fact, assistant head counselor Peter J. McKenna. Irwincontinued to "beam" the light at McKenna for approximately 20 seconds. Subsequently, in theabsence of any verbal exchange, McKenna threw the flashlight he was carrying in the directionof Irwin and Danko, striking Danko in the head, and causing him to sustain, inter alia, a fracturedskull. The plaintiff [*2]subsequently commenced this actionalleging, among other things, that the defendant was liable on the theory of respondeat superior.
The defendant established, prima facie, its entitlement to judgment as a matter of law(see McArthur v J.M. Main St., Inc., 46 AD3d 639 [2007]; Carnegie v J.P. Phillips,Inc., 28 AD3d 599, 600 [2006]; Schuhmann v McBride, 23 AD3d 542, 543 [2005];cf. Riviello v Waldron, 47 NY2d 297, 302-303 [1979]). The defendant's evidence, whichincluded, inter alia, Danko's deposition testimony and an affidavit sworn to by the defendant'sowner and director Gary Confer established that the action taken by McKenna was committedfor personal motives unrelated to the defendant's business and could not reasonably have beenanticipated by the employer (see Carnegie v J.P. Phillips, Inc., 28 AD3d at 600; Vegav Northland Mktg. Corp., 289 AD2d 565 [2001]). Here, McKenna's conduct was, as a matterof law, not within the scope of his employment, nor was it reasonably foreseeable (seeCarnegie v J.P. Phillips, Inc., 28 AD3d at 600).
In opposition, the plaintiff failed to raise a triable issue of fact with regard to whetherMcKenna was acting within the scope of his employment (see Schuhmann v McBride,23 AD3d at 543).
Accordingly, upon reargument, the Supreme Court properly, in effect, adhered to the originaldeterminations. Rivera, J.P., Dillon, Belen and Hall, JJ., concur.