| Quiroz v Zottola |
| 2012 NY Slip Op 05159 [96 AD3d 1035] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Eddy Quiroz et al., Appellants, v Bradley G. Zottola et al.,Respondents. |
—[*1] Ahmuty, Demers & McManus (Gannon, Lawrence & Rosenfarb, New York, N.Y. [Lisa L.Gokhulsingh], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from anorder of the Supreme Court, Westchester County (Liebowitz, J.), entered December 20, 2010,which granted the defendants' motion pursuant to CPLR 3211 (a) (7) to dismiss the cause ofaction alleging negligent hiring, management, and supervision, and, in effect, the demand forpunitive damages, and (2), as limited by their brief, from so much of an order of the same courtdated June 10, 2011, as, upon renewal, adhered to the original determination.
Ordered that the appeal from the order entered December 20, 2010, is dismissed, as thatorder was superseded by the order dated June 10, 2011, made upon renewal; and it is further,
Ordered that the order dated June 10, 2011, is reversed insofar as appealed from, on the law,upon renewal, the order entered December 20, 2010, is vacated, and the defendants' motionpursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging negligent hiring,management, and supervision, and, in effect, the demand for punitive damages is denied; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiff Eddy Quiroz (hereinafter the injured plaintiff), while driving a school bus, wasinvolved in an accident with a garbage truck, which was operated by the defendant Bradley G.Zottola and owned by his employer, the defendant Panichi Holding Corp. (hereinafter Panichi).
The injured plaintiff, and his wife, suing derivatively, commenced this action, inter alia, torecover damages for personal injuries and negligent hiring, management, and supervision, againstZottola and Panichi. In the complaint, the plaintiffs also made a demand for punitive damagesbased on allegations of gross negligence, which were amplified by their bill of particulars. Thedefendants' answer conceded that Zottola was operating the garbage truck during the course ofhis employment at the time of the accident.[*2]
Before discovery was complete, the defendants movedpursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging negligent hiring,management, and supervision, and, in effect, the demand for punitive damages. In support oftheir motion, they submitted the pleadings and the transcript of Zottola's deposition. TheSupreme Court granted the defendants' motion.
Thereafter, the plaintiffs moved for leave to renew their opposition to the defendants' motion,submitting new evidence, including deposition testimony of one of Panichi's supervisors anddocuments from Zottola's employment file which the plaintiffs did not have in their possession atthe time the defendants initially moved. The Supreme Court granted that branch of the plaintiffs'motion which was for leave to renew and, upon renewal, adhered to its original determination.
When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), "the standard iswhether the pleading states a cause of action," and, in considering such a motion, "the court mustaccept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Sokol v Leader, 74AD3d 1180, 1180-1181 [2010] [internal quotation marks omitted]; see Leon vMartinez, 84 NY2d 83, 87-88 [1994]). When the moving party submits evidentiary materialin support of his or her motion, "the criterion then becomes 'whether the proponent of thepleading has a cause of action, not whether he [or she] has stated one' " (Sokol v Leader,74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).However, "a motion to dismiss pursuant to CPLR 3211 (a) (7) must be denied 'unless it has beenshown that a material fact as claimed by the pleader to be one is not a fact at all and unless it canbe said that no significant dispute exists regarding it' " (Sokol v Leader, 74 AD3d at1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "[T]he burden never shifts tothe nonmoving party to rebut a defense asserted by the moving party" (Sokol v Leader,74 AD3d at 1181). "Thus, a plaintiff 'will not be penalized because he [or she] has not made anevidentiary showing in support of his [or her] complaint' " (id. at 1181, quotingRovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).
"Generally, where an employee is acting within the scope of his or her employment, theemployer is liable for the employee's negligence under a theory of respondeat superior and noclaim may proceed against the employer for negligent hiring, retention, supervision or training"(Talavera v Arbit, 18 AD3d738, 738 [2005]; see Segal v St.John's Univ., 69 AD3d 702, 703 [2010]; Watson v Strack, 5 AD3d 1067, 1068 [2004]; Coville v Ryder Truck Rental, Inc., 30AD3d 744, 745 [2006]; Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d213 [1998]). However, "such a claim is permitted when punitive damages are sought based uponfacts evincing gross negligence in the hiring or retention of an employee" (see Coville vRyder Truck Rental, 30 AD3d at 745; Watson v Strack, 5 AD3d at 1068; Karoonv New York City Tr. Auth., 241 AD2d 323, 324 [1997]).
Here, the Supreme Court improperly determined that the plaintiffs' allegations wereinsufficient to support a claim that Panichi acted so recklessly or wantonly as to warrant an awardof punitive damages (see Talavera v Arbit, 18 AD3d at 738-739; Felton v Tourtoulis, 87 AD3d 983,984 [2011]). Upon their motion to renew, the plaintiffs submitted new evidence which showed,among other things, that Panichi may have received anonymous complaints that Zottola drove thegarbage truck, which when empty, weighed more than 10,000 pounds according to Zottola'sdeposition testimony, fast and recklessly, and that Panichi may have known that Zottola had oneor more violations on his driver's license prior to the subject accident (see Talavera vArbit, 18 AD3d at 738-739). Accordingly, the Supreme Court improperly adhered to itsoriginal determination granting the defendants' motion pursuant to CPLR 3211 (a) (7) to dismissthe cause of action alleging negligent hiring, management, and supervision and, in effect, thedemand for punitive damages. Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.