| Yildiz v PJ Food Serv., Inc. |
| 2011 NY Slip Op 02002 [82 AD3d 971] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Seckin Yildiz, Respondent, v PJ Food Service, Inc., et al.,Defendants, and Tri-City Manpower, Inc., et al., Appellants. |
—[*1] Ansa Assuncao, LLP, White Plains, N.Y. (Stephen P. McLaughlin and Thomas O. O'Connorof counsel), for appellant Worldwide Dedicated Services, Inc. Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant Tri-CityManpower, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Gazzillo, J.), dated January 28, 2010, as denied that branch of its motion whichwas for summary judgment dismissing the complaint insofar as asserted against it, and thedefendant Worldwide Dedicated Services, Inc., separately appeals from so much of the sameorder as denied that branch of its motion, made jointly with the defendant PJ Food Service, Inc.,which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the cross motion of the defendant Tri-City Manpower, Inc., and the motionof the defendant Worldwide Dedicated Services, Inc., made jointly with the defendant PJ FoodService, Inc., which were for summary judgment dismissing the complaint insofar as assertedagainst each of them are granted.
The plaintiff alleged that, in 2005, he was assaulted at his place of business by the defendantMilford Penn, as Penn was making a delivery on behalf of the defendant Worldwide DedicatedServices, Inc. (hereinafter Worldwide). Penn was employed by the defendant Tri-City Manpower,Inc. (hereinafter Tri-City), a staffing company that placed individuals into temporary employmentpositions. Worldwide, which had intended to permanently hire Penn as a deliveryman, hadrequested Tri-City to temporarily employ Penn while it completed its processing of Penn'sapplication for permanent employment. The complaint asserted that Worldwide and Tri-Citywere liable to the plaintiff, based on the theories of respondeat superior and negligent hiring andsupervision. Worldwide and Tri-City contend that, as a matter of law, they cannot be held liablefor Penn's conduct based on either of the asserted grounds. We agree.
Worldwide and Tri-City satisfied their prima facie burden of demonstrating their entitlementto judgment as a matter of law, and the burden then shifted to the plaintiff, who failed to [*2]raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320 [1986]).
An employer is vicariously liable for its employees' torts, even where the offendingemployee's conduct was intentional, if the acts were committed while the employee was actingwithin the scope of his or her employment (see Carnegie v J.P. Phillips, Inc., 28 AD3d 599, 600 [2006];Oliva v City of New York, 297 AD2d 789 [2002]). However, the employer bears novicarious liability where the employee committed the tort for personal motives unrelated to thefurtherance of the employer's business (see Carnegie v J.P. Phillips, Inc., 28 AD3d at600). Similarly, the employer is not vicariously liable where the employee's tortious conductcould not have been reasonably expected by the employer (id.). In the instant case, Penn'salleged conduct was, as a matter of law, not within the scope of his employment, nor was itreasonably foreseeable by either Worldwide or Tri-City (id.).
Similarly, as a matter of law, Worldwide and Tri-City were not liable for Penn's allegedconduct under theories of negligent hiring or negligent supervision. In this regard, the plaintiffpresented no evidence of a required element of such causes of action, i.e., that the employer knewor should have known of the employee's propensity for the conduct resulting in the injury (see Jackson v New York Univ. DowntownHosp., 69 AD3d 801, 801-802 [2010]; Ceneus v Beechmont Bus Serv., 272AD2d 499, 500 [2000]; Oliva v City of New York, 297 AD2d at 791; Kenneth R. vRoman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997], cert denied 522US 967 [1997]). Moreover, "[t]here is no common-law duty to institute specific procedures forhiring employees unless the employer knows of facts that would lead a reasonably prudent personto investigate the prospective employee" (Kenneth R. v Roman Catholic Diocese ofBrooklyn, 229 AD2d at 163). Angiolillo, J.P., Florio, Belen and Austin, JJ., concur.