| Rodriguez v New York City Tr. Auth. |
| 2012 NY Slip Op 03370 [95 AD3d 412] |
| May 1, 2012 |
| Appellate Division, First Department |
| Roberto Rodriguez, Respondent-Appellant, v New YorkCity Transit Authority, Appellant-Respondent, et al., Defendant. |
—[*1] Edward Friedman, Brooklyn, for respondent-appellant.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered October 12,2011, which granted in part and denied in part defendant New York City Transit Authority's(NYCTA) motion for summary judgment dismissing the complaint, unanimously modified, onthe law, to grant the motion as to that portion of the complaint found to allege a claim soundingin respondeat superior, and otherwise affirmed, without costs. The Clerk is directed to enterjudgment dismissing the complaint.
The claims arise from an incident on a Queens bound "E" subway train, when plaintiffRodriguez, while intervening on behalf of a woman being menaced by another passenger,allegedly assaulted defendant Johnson, the train's conductor, now deceased. Plaintiff was chargedwith assault in the second degree and obstruction of governmental administration in the seconddegree, but acquitted of all criminal charges.
Plaintiff brought this action, alleging false arrest and malicious prosecution against defendantJohnson, and negligent hiring, supervision and retention against his employer, defendantNYCTA. NYCTA moved for summary judgment dismissing the complaint, arguing that therewas no basis for vicarious liability against it, and that plaintiff could not show that it negligentlyhired, supervised and retained Johnson.
The IAS court disagreed in part, finding that a cause of action for respondeat superiorliability could be inferred from the notice of claim and complaint, and that issues of fact existedconcerning whether Johnson was acting within the scope of his duties when reporting the allegedassault to police. The IAS court granted NYCTA's motion to the extent of dismissing thenegligent hiring, supervision and retention claim.
The IAS court erred in sustaining a cause of action against the NYCTA predicated onrespondeat superior liability. Plaintiff's theory is that Johnson made a false report to the policethat plaintiff assaulted him in an effort to improperly receive leave and disability benefits towhich he was not entitled. An employee's conduct in allegedly seeking to defraud NYCTA of[*2]leave time and benefits cannot be reasonably viewed asactions within the scope of employment or in furtherance of NYCTA's interests (Danner-Cantalino v City of New York,85 AD3d 709, 710 [2011]).
We agree with the IAS court's grant of summary judgment dismissing plaintiff's negligenthiring, retention, and supervision claim. The motion court properly concluded that there was noactual evidence that the NYCTA knew or should have known of a propensity on the part ofJohnson to engage in the conduct alleged to have caused injury here (see e.g. Coffey v City of New York, 49AD3d 449 [2008]).
We have considered the remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Acosta, Renwick and Richter, JJ. [Prior Case History: 33Misc 3d 1206(A), 2011 NY Slip Op 51795(U).]