| Lombardo v Mastec N. Am., Inc. |
| 2009 NY Slip Op 09435 [68 AD3d 935] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Santo Lombardo et al., Respondents, v Mastec NorthAmerica, Inc., et al., Defendants, and Queens Network Cable, Appellant. (And a Third-PartyAction.) |
—[*1] Lalit K. Jain, Rego Park, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Queens NetworkCable appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated February4, 2009, which denied that branch of its motion, made jointly with the defendant Mastec NorthAmerica, Inc., which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is reversed, on the law, with costs, and that branch of the motionwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendant Queens Network Cable is granted.
In March 2001 the plaintiff Santo Lombardo (hereinafter the plaintiff) allegedly wasassaulted by Sean Regan and Kenneth Plaza at his place of employment. Regan and Plaza weremembers of the defendant I.B.E.W., Local #3, a labor union (hereinafter Local 3). QueensNetwork Cable Corp., sued herein as Queens Network Cable (hereinafter QNCC), had contractedwith Local 3 for the purpose of providing personnel at certain job sites, including the buildingwhere the plaintiff was employed.
In July 2001 the plaintiff and his wife, suing derivatively, commenced the instant actionagainst QNCC, among others, alleging that QNCC "negligently and carelessly" evaluated,screened, and assessed Regan and Plaza "as suitable employees," after "having due notice" oftheir dangerous and vicious propensities. In effect, the complaint premised QNCC's liabilitysolely on theories of negligent hiring and supervision. In the complaint, the plaintiffs did notallege a theory of vicarious liability as against QNCC. In the order appealed from, the SupremeCourt denied that branch of QNCC's motion, made jointly with the defendant Mastec NorthAmerica, Inc., which was for summary judgment dismissing the complaint insofar as assertedagainst QNCC. The Supreme Court acknowledged that a theory of vicarious liability had notbeen alleged against QNCC. However, upon searching the record and, in effect, determining thatthe plaintiffs should have pleaded a cause of action alleging vicarious liability, the SupremeCourt denied that branch of the motion. In this regard, the Supreme Court found that there was atriable issue of fact as [*2]to whether the alleged intentional tortcommitted by Regan and Plaza was "in furtherance" of QNCC's business. We reverse.
Initially, the Supreme Court erred in, sua sponte, raising and considering a claim of vicariousliability against QNCC. "While modern practice permits a plaintiff to successfully oppose amotion for summary judgment by relying on an unpleaded cause of action which is supported bythe plaintiff's submissions" (Comsewogue Union Free School Dist. v Allied-Trent RoofingSys., Inc., 15 AD3d 523, 524 [2005]; see Alvord & Swift v Muller Constr. Co., 46NY2d 276, 280-281 [1978]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 736 [2008];Medina v Sears, Roebuck & Co., 41 AD3d 798, 799-800 [2007]), here, the plaintiffsnever presented a claim of vicarious liability against QNCC, either in the complaint or inopposition to the motion. Instead, the Supreme Court, sua sponte, raised this new theory, and didso more than seven years after the action was commenced.
In any event, QNCC was entitled to summary judgment in its favor even if a theory ofvicarious liability had been alleged against it in the complaint (see CPLR 3212;Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Under the doctrine of respondeatsuperior, an employer can be held vicariously liable for the torts committed by an employeeacting within the scope of the employment" (Fernandez v Rustic Inn, Inc., 60 AD3d 893,896 [2009]; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]).Significantly, liability will not attach for torts committed by an employee who is acting solely forpersonal motives unrelated to the furtherance of the employer's business (see Carnegie v J.P.Phillips, Inc., 28 AD3d 599, 600 [2006]; Schuhmann v McBride, 23 AD3d 542, 543[2005]). In the instant action, the alleged tortious conduct of Regan and Plaza was, as a matter oflaw, unrelated to the furtherance of QNCC's business (see Fernandez v Rustic Inn, Inc.,60 AD3d at 896; Carnegie v J.P. Phillips, Inc., 28 AD3d at 600).
Similarly, as a matter of law, QNCC was not liable for Regan and Plaza's alleged conductunder theories of negligent hiring or negligent supervision. QNCC demonstrated its prima facieentitlement to judgment as a matter of law with respect to these claims, and the plaintiffs failedto raise a triable issue of fact in opposition thereto (see Alvarez v Prospect Hosp., 68NY2d 320 [1986]). There was no evidence that QNCC knew or should have known of thepropensity of Regan and Plaza to engage in the conduct resulting in the alleged injury (seeCarnegie v J.P. Phillips, Inc., 28 AD3d at 600; Doe v Whitney, 8 AD3d 610, 612[2004]; Oliva v City of New York, 297 AD2d 789, 791 [2002]). Rivera, J.P., Dillon,Miller and Roman, JJ., concur.