Wong v V.A.L. Floors, Inc.

[*1] Wong v V.A.L. Floors, Inc. 2009 NY Slip Op 50870(U) [23 Misc 3d 138(A)] Decided on May 6, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570574/08.

Jairo Wong, Plaintiff-Appellant,

against

V.A.L. Floors, Inc. a/k/a Val Flooring, The Trump Corporation, 845 Unlimited Partnership and Bovis Lend Lease, Inc., Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered February 5, 2008, which granted defendants' motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Anil C. Singh, J.), entered February 5, 2008, affirmed, with $10 costs.

Seeking damages on the theories of respondeat superior and negligent hiring and retention, plaintiff, a construction worker, commenced this action against defendants as the result of an alleged unprovoked assault by an employee of a work site subcontractor. Inasmuch as plaintiff failed to raise a triable issue with respect to either of his stated theories of recovery, we sustain the grant of defendants' motion for summary judgment dismissing the complaint.

Recovery on a negligent hiring and retention theory requires a showing that the employer was on notice of a propensity to commit the alleged acts (see Zanghi v Laborers' Intl. Union of N. Am., AFL-CIO, 28 AD3d 1033 [2004], lv denied 4 NY3d 703 [2005]; Gomez v City of New York, 304 AD2d 374 [2003]). Defendants submitted proof of their lack of such notice sufficient to demonstrate prima facie entitlement to judgment as a matter of law. In opposition, plaintiff failed to make the requisite showing that defendants had notice of any prior conduct by the assailant demonstrating a propensity for the type of conduct alleged (see Carnegie v J.P. Phillips, Inc., 28 AD3d 599 [2006]). "[T]here is no common law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonable prudent person to investigate the prospective employee" (Kenneth R. v Diocese of Brooklyn, 229 AD2d 159, 163 [1997], lv dismissed 91 NY2d 848 [1997], cert denied 522 US 953 [1997]). Nor were defendants vicariously liable for the assailant's acts under the doctrine of respondeat superior, since his claimed conduct was not part of his job and was not incidental to the furtherance of defendants' business. The actions, if committed, were done for purely personal motives and were an obvious departure from his normal work-related duties (see White v Hampton Mgt. Co., LLC, 35 AD3d 243 [2006]). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 06, 2009