| Horvath v L & B Gardens, Inc. |
| 2011 NY Slip Op 08124 [89 AD3d 803] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Christina D. Horvath, as Administratrix of the Estate of Joseph J.Horvath, Also Known as Joseph Horvath, Jr., et al., Appellants, v L & B Gardens, Inc.,et al., Respondents, et al., Defendants. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Gregory S. Katz, Jennifer Oxman,and Nicholas P. Hurzeler of counsel), for respondents.
In an action to recover damages for personal injuries and wrongful death, the plaintiffsappeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 29, 2010,which granted the motion of the defendants L & B Gardens, Inc., and L & B Gardens, Inc., doingbusiness as L & B Spumoni Gardens, for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed, with costs.
This action arises from a physical altercation between the plaintiff John Kolompar andJoseph J. Horvath, the deceased brother of the plaintiff Christina D. Horvath, on one side, and onthe other side, several employees of the defendants L & B Gardens, Inc., and L & B Gardens,Inc., doing business as L & B Spumoni Gardens (hereinafter together L & B), a restaurant inBrooklyn, New York.
Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liablefor torts committed by an employee acting within the scope of employment (see Fernandez v Rustic Inn, Inc., 60AD3d 893, 896 [2009], citing Judith M. v Sisters of Charity Hosp., 93 NY2d 932,933 [1999]). Pursuant to the doctrine, an "employer may be liable when the employee actsnegligently or intentionally, so long as the tortious conduct is generally foreseeable and a naturalincident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d at 933).However, "liability will not attach for torts committed by an employee who is acting solely forpersonal motives unrelated to the [*2]furtherance of theemployer's business" (Fernandez v Rustic Inn, Inc., 60 AD3d at 896).
Here, the evidence relied upon by L & B in support of its motion was sufficient to establish,prima facie, that L & B could not be held vicariously liable for its employees' intentional tortsunder the theory of respondeat superior. L & B's submissions demonstrated that the altercationtook place away from its premises after L & B had closed for the evening, and that the altercationarose from personal motives unrelated to the furtherance of L & B's business interests (seeSchulman v McBride, 23 AD3d 542, 542-543 [2005]; see also Fernandez v Rustic Inn,Inc., 60 AD3d at 896-897; Savages v City of N.Y. Hous. Auth., 172 AD2d 506, 508[1991]). In opposition, the plaintiffs failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted L & B's motion for summary judgmentdismissing the complaint insofar as asserted against it. Rivera, J.P., Eng, Belen and Austin, JJ.,concur. [Prior Case History: 29 Misc 3d 1211(A), 2010 NY Slip Op 51795(U).]