Salem v MacDougal Rest. Inc.

Salem v MacDougal Rest. Inc. 2017 NY Slip Op 01832 Decided on March 15, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 15, 2017
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, JJ.
3411 150418/11

[*1]Mark Salem, Plaintiff-Respondent,

v

MacDougal Rest. Inc., doing business as Off the Wagon, Defendant-Appellant, Trimel A. Roberts, et al., Defendants.

Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Steven H. Rosenfeld of counsel), for appellant.

Jason Levine, New York, for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered June 21, 2016, which, inter alia, denied the motion of defendant MacDougal Restaurant Inc. d/b/a Off the Wagon (defendant) for summary judgment dismissing plaintiff's respondeat superior claim as against it, unanimously affirmed, without costs.

Plaintiff was assaulted by a security guard/bouncer in the employ of defendant after plaintiff, who had been denied admittance to defendant's bar because of perceived intoxication, grabbed the baseball cap from the bouncer's head. Less than 30 seconds elapsed between plaintiff taking the cap and the bouncer throwing plaintiff to the ground, which occurred approximately 10 feet from the entrance to defendant's bar. On this record, it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of his employment at the time of the assault (see e.g. Bilias v Gaslight, Inc., 100 AD3d 533 [1st Dept

2012], affg 2011 NY Slip Op 32700[U] [Sup Ct, NY County 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK