| Segal v St. John's Univ. |
| 2010 NY Slip Op 00243 [69 AD3d 702] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Adi Segal, Respondent, v St. John's University et al.,Appellants. |
—[*1] Weitz, Kleinick & Weitz, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac and Jillian Rosen], of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries and for negligent hiring andsupervision, the defendants appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Rosengarten, J.), dated September 29, 2008, as denied theirrenewed motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' renewed motion which was for summary judgment dismissing thecauses of action alleging negligent hiring and supervision against the defendant St. John'sUniversity, and substituting therefor a provision granting that branch of the renewed motion; asso modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff allegedly injured her back while a member of the swim team at the defendantSt. John's University (hereinafter St. John's). She commenced this action against her coach, JohnSkudin, and St. John's, alleging that her injury was caused by certain training methods employedby Skudin, and asserting, inter alia, causes of action to recover damages for common-lawnegligence against both of the defendants, and for negligent hiring and supervision against St.John's. The defendants moved for summary judgment dismissing the complaint, but the SupremeCourt denied the motion with leave to renew. In their renewed motion, the defendants asserted,among other things, that the plaintiff, an experienced swimmer, both impliedly and expresslyassumed the risk of injuring her back and that the training methods were appropriate. TheSupreme Court denied the renewed motion. We modify.
Generally, when a plaintiff seeks to recover damages against an employer based on anemployee's actions committed within the scope of his or her employment, the employer is liableunder the doctrine of respondeat superior, not negligent hiring or supervision (see Drisdom v Niagara Falls Mem. Med.Ctr., 53 AD3d 1142, 1143 [2008]; Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 744-745 [2006];Watson v Strack, 5 AD3d1067, 1068 [2004]; Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d 213[1998]; cf. Talavera v Arbit, 18AD3d 738 [2005]). Inasmuch as the alleged negligent actions of Skudin were indisputablywithin the scope of his employment, the Supreme Court should have granted that branch of thedefendants' renewed motion which was to dismiss the cause of action asserted against St. John'salleging negligent [*2]hiring and supervision. We also note thatthe causes of action seeking damages based on intentional tort and fraud, and seeking punitivedamages, were previously withdrawn by the plaintiff and thus were no longer before theSupreme Court.
The Supreme Court properly denied, upon renewal, that branch of the defendants' renewedmotion which was for summary judgment dismissing the cause of action to recover damagesbased on negligence. Regardless of whether the training methods Skudin employed were "wellwithin the normal and expected parameters" for swimmers at the plaintiff's level, the plaintifftestified at her deposition that Skudin continued to employ those methods after she complainedof back pain. The plaintiff's deposition was annexed to the defendants' moving papers.Consequently, the defendants' own moving papers created a triable issue of fact on whether thedefendants were negligent. Similarly, we cannot say, as a matter of law, based on the defendants'renewed moving papers, that the plaintiff assumed the risk of injuring her back by hermembership on the swim team, inasmuch as those moving papers did not establish that heralleged injury and the manner in which it allegedly was caused, were inherent risks of swimming(see Owen v R.J.S. Safety Equip., 79 NY2d 967, 969-970 [1992]; Gahan v MineolaUnion Free School Dist., 241 AD2d 439, 441 [1997]; cf. Musante v Oceanside Union Free School Dist., 63 AD3d 806,807 [2009]; Kane v North Colonie Cent. School Dist., 273 AD2d 526, 527 [2000]). Insum, because the defendants' renewed moving papers themselves raised triable issues of fact,denial of that branch of the defendants' renewed motion which was to dismiss the cause of actionto recover damages based on negligence was required without regard to the sufficiency of thepapers submitted in opposition (seeAbato v County of Nassau, 65 AD3d 1268, 1269 [2009]).
The defendants' remaining contention is without merit. Mastro, J.P., Fisher, Belen andAustin, JJ., concur.