| Kunz v New Netherlands Routes, Inc. |
| 2009 NY Slip Op 05721 [64 AD3d 956] |
| July 9, 2009 |
| Appellate Division, Third Department |
| Elyse M. Kunz, Appellant-Respondent, v New Netherlands Routes,Inc., et al., Respondents-Appellants, and Greta Wagle, Respondent. |
—[*1] O'Connor, O'Connor, Bresee & First, P.C., Albany (George Hoffman of counsel), for NewNetherlands Routes, Inc., respondent-appellant and Greta Wagle, respondent. Walter, Thayer & Mishler, P.C., Albany (Anita Thayer of counsel), for Donald Rittner,respondent-appellant.
Cardona, P.J. (1) Cross appeals from an order of the Supreme Court (McDonough, J.),entered May 7, [*2]2008 in Albany County, which, among otherthings, granted a motion by defendant Greta Wagle to dismiss the amended complaint againsther, and (2) appeal from that part of an order of said court, entered October 8, 2008 in AlbanyCounty, which, upon reargument, partially granted a motion by defendant New NetherlandRoutes, Inc. to dismiss the amended complaint against it.
Plaintiff, who was an officer and board member of defendant New Netherlands Routes, Inc.(hereinafter NNR), a not-for-profit corporation, commenced this action alleging, among otherthings, that defendant Donald Rittner, also an officer and board member of NNR, sexuallyassaulted her and made other unwanted sexual advances. Specifically, plaintiff asserted claims ofassault, battery and breach of duty against Rittner; breach of duty and emotional distress againstdefendant Greta Wagle, another officer and board member of NNR; and breach of duty,vicarious liability and breach of contract against NNR. In lieu of answering, defendants movedto dismiss the amended complaint. Supreme Court denied the motions as to Rittner and NNR,but dismissed the two claims against Wagle. Upon NNR's subsequent motion to reargue, thecourt also dismissed the breach of duty and vicarious liability claims against it. Plaintiff, Rittnerand NNR now cross-appeal from the initial order and plaintiff appeals from the order uponreargument.
Addressing in seriatim each cause of action at issue on this appeal,[FN*]we turn first to plaintiff's claim that Rittner, Wagle and NNR breached a duty to her. Notably,"[t]he threshold question in any negligence action is: does defendant owe a legally recognizedduty of care to plaintiff?" (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001];see Hanna v St. Lawrence County,34 AD3d 1146, 1149 [2006].) "Absent a duty running directly to the injured person therecan be no liability in damages" (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96NY2d 280, 289 [2001]; see Hamilton v Beretta U.S.A. Corp., 96 NY2d at 232). Here,plaintiff alleges that Rittner and Wagle, as officers of NNR, "had a duty to protect the public,other board members, and employees of NNR from offensive conduct and to minimize the harmof any such conduct." However, plaintiff has not established that such a duty has previously beenrecognized on the part of individual corporate officers, nor does she present any legal argumentthat would persuade this Court to find that these defendants owed such a duty to her under thesecircumstances. "In the absence of duty, there is no breach and without a breach there is noliability" (Pulka v Edelman, 40 NY2d 781, 782 [1976] [citation omitted]). With respectto NNR, plaintiff does not articulate what specific duty she believes to be owed to her. In anyevent, she has not sufficiently alleged facts that would fit any cognizable theory of negligence.Accordingly, this cause of action in negligence was properly dismissed as against Wagle andNNR, and must also be dismissed as to Rittner.
Plaintiff also asserted a claim against Wagle for reckless or intentional infliction of [*3]emotional distress based upon Wagle's comments and actions whenplaintiff told her of Rittner's alleged sexual advances. Accepting as true the allegations set forthin the complaint and in plaintiff's affidavits (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Crepin v Fogarty, 59 AD3d 837,838 [2009]), we find that Wagle's alleged conduct does not rise to the level of "extreme andoutrageous conduct" required to sustain plaintiff's claim (Howell v New York Post Co.,81 NY2d 115, 121 [1993]; compareMitchell v Giambruno, 35 AD3d 1040 [2006], with Henderson v United ParcelServ., 245 AD2d 789 [1997]). Accordingly, Supreme Court properly dismissed this cause ofaction.
Turning to plaintiff's claim that NNR is vicariously liable for Rittner's alleged assault andbattery upon her, we note that, even assuming Rittner is an "employee" of NNR, "[u]nder thedoctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of itsemployees only if those acts were committed in furtherance of the employer's business andwithin the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002];see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Sexual assault "is aclear departure from the scope of employment, having been committed for wholly personalmotives" (N.X. v Cabrini Med. Ctr., 97 NY2d at 251; see Judith M. v Sisters ofCharity Hosp., 93 NY2d at 933; Dia CC. v Ithaca City School Dist., 304 AD2d 955,956 [2003], lv denied 100 NY2d 506 [2003]). Therefore, Supreme Court properlydismissed that cause of action. Finally, the court properly declined to dismiss plaintiff'sremaining two causes of action against NNR as they sufficiently state claims for breach ofcontract.
The parties' remaining contentions, to the extent not specifically addressed herein, have beenexamined and found to be either academic or unpersuasive.
Mercure, Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order entered May 7,2008 is modified, on the law, without costs, by reversing so much thereof as denied defendantDonald Rittner's motion to dismiss the third cause of action against him; motion granted to thatextent and said cause of action dismissed; and, as so modified, affirmed. Ordered that the orderentered October 8, 2008 is affirmed, without costs.
Footnote *: Rittner has expressly abandonedany argument with respect to plaintiff's first and second causes of action alleging assault andbattery, respectively.