| Ostroy v Six Sq. LLC |
| 2012 NY Slip Op 07759 [100 AD3d 493] |
| November 15, 2012 |
| Appellate Division, First Department |
| Andrew B. Ostroy, Individually, as Executor of Adrienne Levine,Deceased, and as Parent and Natural Guardian of Sophie Ostroy, an Infant,Appellant, v Six Square LLC et al., Respondents. (And a Third-PartyAction.) |
—[*1] Martin Clearwater & Bell, LLP, New York (Stewart G. Milch of counsel), for Six SquareLLC, Edward Steinman, Joseph Alpert and Charles Alpert, respondents. White Fleischner & Fino, LLP, New York (Jason Steinberg of counsel), for Bradford GeneralContractors Co. Inc. and Jus Hernandez, respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered on or about July 1,2011, which, inter alia, granted defendants' motions for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
Defendants Bradford General Contractors Co. Inc. and Hernandez cannot be held vicariouslyliable pursuant to the doctrine of respondeat superior for third-party defendant Pillco's criminalconduct because the record demonstrates as a matter of law that the undocumented immigrant'smurder of plaintiff's decedent was not "within the permissible ambit of [his] employment"(see Riviello v Waldron, 47 NY2d 297, 303 [1979]). Rather than furthering hisemployer's interests, Pillco's crime was motivated by his admitted personal fear that the decedentwould contact the police or immigration authorities (see RJC Realty Holding Corp. vRepublic Franklin Ins. Co., 2 NY3d 158, 164 [2004]).
The claim of negligence per se based on defendant Bradford's alleged violation of theImmigration Reform and Control Act (8 USC § 1324a [a] [1]) in hiring Pillco must bedismissed because there is no evidence that the decedent was among the class of people forwhose particular benefit the statute had been enacted (see Fagan v AmerisourceBergenCorp., 356 F Supp 2d 198, 214 [ED NY 2004]).
The claim of negligent hiring, retention, training, and supervision fails because there is noevidence that Bradford was on notice that Pillco had a propensity for violence (see Naegele v Archdiocese of N.Y., 39AD3d 270 [1st Dept 2007], lv denied 9 NY3d 803 [2007]; White v Hampton Mgt. Co. L.L.C., 35AD3d 243 [1st Dept 2006]). To the contrary, the record shows that Hernandez, Bradford'sowner, regarded Pillco as a normal and happy young man who never displayed signs of anger ora bad mood.
Plaintiff's argument that defendants Six Square LLC, Edward Steinman, Joseph Alpert, [*2]and Charles Alpert can be held liable for the Bradford defendants'negligence pursuant to an exception to the general rule against liability for independentcontractors is misplaced, since the decedent's death was not the result of any negligent repairsperformed by Bradford but the result of Pillco's criminal conduct.
The negligent security claim against the Six Square defendants fails because there is noevidence that they knew or had reason to know of conduct on the part of workers in the buildingthat would likely endanger a tenant (see Jacqueline S. v City of New York, 81 NY2d 288[1993]; Maria S. v Willow Enters., 234 AD2d 177 [1st Dept 1996]).
Plaintiff is not entitled to a reduced burden of proof under the Noseworthy doctrine(Noseworthy v City of New York, 298 NY 76 [1948]), because there is no evidence thatthe decedent's death was the result of negligence (see id.; Melendez v Parkchester Med. Servs.,P.C., 76 AD3d 927, 928 [1st Dept 2010]).
The claim for punitive damages must be dismissed because there is no evidence thatdefendants "authorized, participated in, consented to or ratified" Pillco's criminal conduct(Loughry v Lincoln First Bank, 67 NY2d 369, 378 [1986]). Concur—Friedman,J.P., Sweeny, Moskowitz, Freedman and Román, JJ. [Prior Case History: 2011 NYSlip Op 31785(U).]