| Mantione v Crazy Jakes, Inc. |
| 2012 NY Slip Op 09202 [101 AD3d 1719] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| Joseph V. Mantione, Respondent, v Crazy Jakes, Inc., Doing Business asCrazy Jake's Restaurant, et al., Appellants, et al., Defendants. |
—[*1] Burden, Gulisano & Hickey, LLC, Buffalo (Sarah E. Hansen of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), enteredFebruary 16, 2012 in a personal injury action. The order denied the motion of defendants-appellants todismiss the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained as a resultof the alleged misconduct of "bouncers" at defendant Crazy Jake's Restaurant, a restaurant and baroperated by defendant Crazy Jakes, Inc., doing business as Crazy Jake's Restaurant (collectively,Crazy Jake's). Before answering the complaint, defendants Webster Properties of WNY, Inc.(Webster), Greg T. Doel and Timmy L. Brocius, as well as Crazy Jake's (collectively, defendants),moved to dismiss the complaint in its entirety against Doel and Brocius; the second cause of action, forintentional tort, against Crazy Jake's and Webster; the third cause of action, for negligent hiring andretention, against Crazy Jake's; and the fourth cause of action, for punitive damages, against CrazyJake's and Webster (see CPLR 3211 [a] [7]). In support thereof, defendants submitted, interalia, affidavits from Doel and Brocius, wherein they averred that they were not present at the time of theincident. Supreme Court properly denied defendants' motion.
In determining a CPLR 3211 motion, "a court may freely consider affidavits submitted by theplaintiff to remedy any defects in the complaint . . . and 'the criterion is whether theproponent of the pleading has a cause of action, not whether he has stated one' " (Leon vMartinez, 84 NY2d 83, 88 [1994]; seeGibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005]). The courtmay also consider affidavits and other evidentiary material to "establish conclusively that plaintiff has nocause of action" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see GibraltarSteel Corp., 19 AD3d at 1142). "Any facts in the complaint and submissions [*2]in opposition to the motion to dismiss are accepted as true, [however,]and the benefit of every possible favorable inference is afforded to the plaintiff" (Gibraltar SteelCorp., 19 AD3d at 1142).
Defendants contend that the court erred in denying that part of their motion to dismiss the complaintagainst Doel and Brocius because the evidence conclusively established that they were not present atthe time of the incident and thus were not participants in the wrongful conduct. We reject thatcontention. In opposition to the motion, plaintiff submitted an affidavit in which he stated that Doel andBrocius were present at the time of the incident. Thus, accepting that fact as true, as we must on thismotion to dismiss, we conclude that the evidence does not conclusively establish that Doel and Brociuswere not present at the time of the incident and that they therefore were not participants in the wrongfulconduct (see generally Rovello, 40 NY2d at 636; Clark v Pine Hill Homes, 112AD2d 755, 755 [1985]). In light of that determination, we need not address at this juncture defendants'contention that Doel and Brocius are entitled to dismissal of the complaint against them on the groundthat they cannot be held liable for the torts of others.
Defendants also contend that the court erred in denying that part of their motion seeking dismissalof the cause of action for negligent hiring and retention against Crazy Jake's because the complaint doesnot allege that Crazy Jake's had reason to know that the bouncers employed by it had a propensity forthe conduct that caused the injury. We reject that contention. There is no requirement that a cause ofaction for negligent hiring and supervision be pleaded with specificity (see Porcelli v Key Food Stores Co-Op.,Inc., 44 AD3d 1020, 1021 [2007]). Moreover, we note that plaintiff submitted an affidavitwherein he averred that, prior to the incident, complaints had been made regarding the use of force byCrazy Jake's bouncers.
We have considered defendants' remaining contentions and conclude that they are without merit.Present—Centra, J.P., Peradotto, Sconiers, Valentino and Martoche, JJ.