| Gray v Schenectady City School Dist. |
| 2011 NY Slip Op 05925 [86 AD3d 771] |
| July 14, 2011 |
| Appellate Division, Third Department |
| Deborah Gray et al., Respondents, v Schenectady CitySchool District, Appellant, et al., Defendant. |
—[*1] Towne, Ryan & Partners, P.C., Albany (Elena DeFio Kean of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered September30, 2010 in Schenectady County, which denied a motion by defendant Schenectady City SchoolDistrict to dismiss the complaint against it.
Defendant Steven Raucci was employed by defendant Schenectady City School District(hereinafter defendant) as its director of facilities. While in this position, Raucci supervised,among others, plaintiff Harold Gray. Raucci had dealings with plaintiff Deborah Gray throughtheir affiliation with the same labor union. Plaintiffs commenced this action alleging that Raucciused the power and resources of his position with defendant "to conduct a reign of terror" uponplaintiffs, including vandalism of their property and threats to their safety. The complaintcontained causes of action against Raucci and defendant for intentional infliction of emotionaldistress, as well as against defendant for negligent supervision and negligent retention ofRaucci.[FN*][*2]Defendant moved to dismiss the complaint against it forfailure to state a cause of action. Supreme Court denied the motion, prompting defendant'sappeal.
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court mustconstrue the pleadings liberally, accept the allegations of the complaint as true and provide theplaintiffs the benefit of every possible favorable inference (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005];Griffin v Anslow, 17 AD3d889, 891 [2005]). A court may consider evidentiary material submitted by a plaintiff toremedy defects in the complaint, but the court should not rely on evidence submitted by theproponent of the motion as a basis for dismissal unless that evidence conclusively establishes thefalsity of an alleged fact (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977];Capital Wireless Corp. v Deloitte & Touche, 216 AD2d 663, 665 [1995]; Pietrosantov NYNEX Corp., 195 AD2d 843, 844 [1993]). Applying this standard, Supreme Court erredin denying defendant's motion as to the first cause of action for intentional infliction of emotionaldistress, but correctly denied the part of defendant's motion seeking dismissal of the second andthird causes of action for negligent supervision and negligent retention.
For a claim of intentional infliction of emotional distress, a plaintiff "must allege more thanconduct that causes inconvenience or embarrassment, even if such conduct continues for aprotracted period of time" (Doin vDame, 82 AD3d 1338, 1340 [2011], lv denied sub nom. Doin v Champlain BluffsDev. Corp., 16 NY3d 708 [2011]; see Associates First Capital v Crabill, 51 AD3d 1186, 1188 [2008],lv denied 11 NY3d 702 [2008]). The complaint must allege that the defendant's conductwas " 'so outrageous in character, and so extreme in degree, as to go beyond all possible boundsof decency . . . and [was] utterly intolerable in a civilized community' " (Murphyv American Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] ofTorts § 46, Comment d). The complaint here alleged that Raucci vandalizedplaintiffs' property on five separate occasions, and utilized defendant's vehicles and employees toharass and intimidate them. This included menacing phone calls and personal threats to theirphysical safety. Liberally construed, these allegations were sufficient to state a cause of action ofintentional infliction of emotional distress against Raucci (see Stram v Farrell, 223 AD2d260, 264-265 [1996]).
Despite this sufficient claim against Raucci, defendant's mere inaction after receivingcomplaints about Raucci's behavior—which allegedly allowed him to continue to engagein this behavior in spite of the notice regarding his actions—cannot be considered the typeof extreme and outrageous conduct that is " 'utterly intolerable in a civilized community' "(Murphy v American Home Prods. Corp., 58 NY2d at 303, quoting Restatement[Second] of Torts § 46, Comment d) so as to state a cause of action againstdefendant for its own conduct (see Kunzv New Netherlands Routes, Inc., 64 AD3d 956, 958 [2009]). Defendant, as Raucci'semployer, can be held vicariously liable for his tortious actions, but only if he committed them infurtherance of defendant's business and within the scope of his employment (see N.X. vCabrini Med. Ctr., 97 NY2d 247, 251-252 [2002]; Burlarley v Wal-Mart Stores, Inc., 75 AD3d 955, 956 [2010]).Although whether an employee's actions fall within the scope of employment generally presents aquestion of fact, plaintiffs' complaint does not provide sufficient details to apply the factors onthat issue (see Burlarley v Wal-Mart Stores, Inc., 75 AD3d at 956). That is irrelevant,however, because the complaint is devoid of any allegations that Raucci was acting infurtherance of [*3]defendant's business. The complaint allegesthat Raucci's conduct was designed to prevent plaintiffs from criticizing the performance of hisduties for defendant. This statement is insufficient to connect Raucci's actions to defendant'sbusiness purposes, as opposed to him acting solely for personal reasons, thereby rendering thecomplaint's allegations insufficient to hold defendant vicariously liable or otherwise state a causeof action against defendant for intentional infliction of emotional distress (see Naegele v Archdiocese of N.Y., 39AD3d 270, 270-271 [2007], lv denied 9 NY3d 803 [2007]; Demas vLevitsky, 291 AD2d 653, 660-661 [2002], lv dismissed 98 NY2d 728 [2002];compare Sims v Bergamo, 3 NY2d 531, 534-535 [1957]). Thus, Supreme Court shouldhave granted the part of defendant's motion seeking dismissal of the first cause of action againstit.
Supreme Court properly denied the part of defendant's motion seeking to dismiss the causesof action alleging negligent supervision and negligent retention of Raucci. These claims requireallegations that the defendant knew or should have known of its employee's propensity to engagein the conduct that caused the plaintiff's injuries, and that the alleged negligent supervision orretention was a proximate cause of those injuries (see State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859,860 [2005]; Lemp v Lewis, 226 AD2d 907, 908 [1996]; see also Davidovici v Fritzson, 49AD3d 488, 489-490 [2008]). The employee also must not be acting within the scope of hisor her employment; in that situation the employer could only be liable, if at all, vicariously underthe theory of respondeat superior, not for negligent supervision or retention (see Brown v State of New York, 45AD3d 15, 26 [2007], lv denied 9 NY3d 815 [2007]; Coville v Ryder Truck Rental, Inc., 30AD3d 744, 745 [2006]). Plaintiffs alleged that Raucci vandalized their property andthreatened their personal safety. Such alleged conduct certainly appears to fall outside the scopeof his employment. Plaintiffs also alleged that Raucci used defendant's computers, material andpersonnel to harass and intimidate them and that, even after defendant was informed of Raucci'sconduct targeting plaintiffs, defendant failed to investigate or discipline him. The complaintsufficiently alleged that defendant's negligent supervision or retention of Raucci permitted himcontinued access to the means to carry out his actions, which caused plaintiffs' injuries. Thus, thecourt correctly refused to dismiss the second and third causes of action.
Peters, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as denied that part of the motion ofdefendant Schenectady City School District to dismiss the first cause of action against it; motiongranted to that extent and said cause of action dismissed against said defendant; and, as somodified, affirmed.
Footnote *: Raucci has not appeared in thisaction. In April 2010, he was convicted of 18 felony counts, including several for conduct againstplaintiffs and their property during the time when he was employed by defendant.