Grafov v Chelsea Bicycles Corp.

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Grafov v Chelsea Bicycles Corp. 2012 NY Slip Op 31757(U) July 2, 2012 Supreme Court, New York County Docket Number: 110620/08 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 71612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: Plaintiff, -v- 110620/08 Motion Date: ALEX GRAFOV, 02110112 Motion Seq. No.: CHELSEA BICYCLES CORPORATION and "JOHN DOE" MANAGER, Defendant. 001 3 The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Notice of Cross MotionlAnswering Affidavits - Exhibits Replying Affidavits - Exhibits Yes Cross-Motion: 0 No Upon t h e foregoing papers, it is ordered that this motion is granted and the cross motion is denied. This action is brought to recover fpr personal injuries sustained by plaintiff Alex Grafov when he was allegedly assaulted in a bicycle shop owned by defendant Chelsea Bicycles Corporation (Chelsea Bicycles), by t h e manager of the shop, Daniel .Rodriguez (Rodriguez). Plaintiff interposes causes of action against Chclsea Bicycles for assault and battery, on a theory of respondeat superior, and for negligent supervision; i n t e n t i o n a l infliction of emotional distress; prima facie tort; fraud; and s e p a r a t e \'causes of action" alleging a r i g h t to I. CHECK ONE: 0 NON-FINAL DISPOSITION CASE DISPOSED 2 . CHECK AS APPROPRIATE: MOTION I: S GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE: 0 SETTLE ORDER 0 SUBMIT ORDER [* 2] punitive and compensatory damages. , I Chelsea Bicycles moves f o r summary judgment dismissing the complaint as against it, arguing that it has no vicarious liability, under the doctrine of respondeat superior, f o r the acts of Rodriguez. Plaintiff cross-moves to amend his complaint to allege a hate crime, I and f o r summary judgment. The gravamen of plaintiff s claims are that he went i n t o the bicycle shop owned by Chelsea Bicycles on March 2, 2008, to pick up a bicycle which had been brought in previously for repairs by a nonparty. Both Rodriguez, Che.lsea Bicycles manager and Chelsea Bicycles o w n e r , Rafael Vasquez, were in the shop at the time, as were several other employees. Plaintiff alleges that when he expressed his dissatisfaction with the repairs made to the bicycle, he was assaulted by Rodriguez, when Rodriguez put: h i s arm around plaintiff s neck as plaintiff was leaving the shop. Rodriguez s action allegedly caused plaintiff to fall, and sustain i n j u r y to h i s elbow. Plaintiff claims that the alleged assault was accompanied by anti-gay slurs on the part of Rodriguez. Rodriguez has re-loczted to Ireland and has not been served with the complaint, Plaintiff claims that Chelsea Bicycles is liable to plaintiff for Rodriguez s alleged assault on plaintiff, as Rodriguez s employer, under the theory of respondeat superior. -2- [* 3] Plaintiff a l s o claims that Rodriguez was negligently hired and supervised by Chelsea Bicycles. This c o u r t shall dismiss plaintiff's claim that defendant negligently hired and supervised Rodriguez as plaintiff has come forward with no evidence of anything in Rodriquez's background that would have placed Chelsea,Bicycles on notice that Rodriguez had a propensity for violence. See R o d r i g u e z v United Transportation Company, 2 4 6 AD2d 178 ( l a ' Dept 1998). The court shall also deny plaintiff's motion to amend t h e complaint to allege a "hate crime'' based on the alleged anti-gay slurs. While plaintiff may f i l e a criminal complaint with law enforcement agencies accusing Rodriquez of violating the penal codes, there is no separate civil cause of action that distinguishes assault based on homosexual animus. "Under the doctrine of respondeat superior, an employer may be vicariously liable f o r the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." N.X. v C a b r i n i Medical C e n t e r , 97 N Y 2 d 247, 251 (2002); Bee a l s o Bowman v State of N e w Y o r k , 10 AD3d 315 (1st Dept 2004). "'[Wlhere t h e assault was not within the scope of t h e employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer,'" vicarious liability will not attach. M i l o s e v i c v O'Donnell, 89 AD3d 628, 629 (1st Dept 2011)' -3- [* 4] quoting Yeboah v Snapple, Inc., 2 8 6 ADZd 204, 204- 2001). Instructive is the case of Nunez v Caxyl ( 3 0 AD3d 249 [ l s t Dept 2 0 0 6 1 ) & Broadway, Inc. , where t h e plaintiff was attacked by three men who had been ushered into his apartment by the superintendent of t h e building, who stood by, b u t did not participate in the assault T h e r e the plaintiff sought to hold the employer liable for the assault on the basis of respondeat superior, but the court found that there was no evidence that the superintendent acted in the employer s interests, and that any evidence that he was acting in furtherance of his employer s business was pure speculation. If I d . at 250. AD3d 744 [ l s t Dept 20051) , in which the plaintiff/tenant was assaulted by t h e building s superintendent when plaintiff attempted to videotape an inspection of the building s fire escape during a rent strike. ThE Court found t h a t : [tlhere is no evidence that the superintendent had any personal motivation for the assault. His animus, shared by t h e management, w a s about the rent strike. In addition, the superintendent assaulted plaintiff in a specific attempt to prevent h i m from collecting . evidence, v i a the videotaped inspection of the fire escape, to support t h e tenants case. C e r t a i n l y , the [employer s] interests would be furthered by preventing tenants from collecting evidence to support t h e i r application f o r rent abatements. -4- [* 5] I d . at 746. Thus, the Ramos C o u r t found a question of fact as to whether t h e superintendent acted within the scope of h i s employment in committing the assault. In the present c a s e , there is no evidence that Rodriguez was furthering Chelsea Bicycles' interests in his sudden assault on plaintiff. The only evidence submitted is that he was acting from "purely personal motives" which were an "obvious departure from [his] normal d u t i e s , his employer. White an.act which will not be attributed to v Hampton Management Company, L.L.C., 3 5 AD3d 243, 244 (1st D e p t 2006); see a l s o F l o w e r s v New York C i t y T r a n s i t A u t h o r i t y , 267 A D 2 d 132 (1st Dept 1999) Finally, as there is no liability, there can be no punitive damages, and the "cause of actior;l." for such damages is dismissed as well. The remainder of plaintiff's claims, including intentional infliction of emotional harm and f r a u d , a r e dismissed as without basis. Plaintiff's cross motion to amend t h e complaint and for summary judgment is denied. Accordingly, it: is ORDERED that the motion broiight by Chelsea Bicycles Corporation for summary judgment is granted, and the action is dismissed with costs and disbursements to this defendant as taxed by the Clerk of the Court upon presentation of an appropriate bill of c o s t s ; and it is further -5- [* 6] ORDERED that the plaintiff's c r o s s motion s e e k i n g t o a,mend t h e complaint and for summary judgment i s d e n i e d ; and i t i s further ORDERED that the C l e r k i s d i r e c t e d t o e n t e r judgment accordingly. This i s t h e d e c i s i o n and o r d e r of the court. Dated: ENTER : July 2 , 2012 -6-

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