Villongco v Tompkins Sq. Bagels

Villongco v Tompkins Sq. Bagels 2017 NY Slip Op 08452 Decided on November 30, 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 November 30, 2017
Renwick, J.P., Manzanet-Daniels, Mazzarelli, Kahn, Moulton, JJ.
5097 153093/14

[*1]Edgar Villongco, Plaintiff-Appellant,

v

Tompkins Square Bagels, et al., Defendants-Respondents, Nathan Bershadsky, Defendants.

Goidel & Siegel, LLP, New York (Jonathan M. Goidel of counsel), for appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York (William C. Lawlor of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about May 18, 2016, which granted the motion of defendants Tompkins Square Bagels and Sage the Cat, LLC (collectively defendant), for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Summary judgment was properly granted in this action for personal injuries sustained when defendant restaurant's employee (defendant Bershadsky) followed plaintiff customer outside the restaurant and punched him in the face. Bershadsky clearly acted beyond the scope of his employment, and was motivate by private concerns not related to any conduct in furtherance of defendant's business, and thus defendant is not liable under the doctrine of respondeat superior (see Conde v Yeshiva Univ., 16 AD3d 185, 187 [1st Dept 2005]). Furthermore, defendant is not liable for plaintiff's injuries based upon negligent training or supervision, as there is nothing in the record to demonstrate that defendant knew, or should have known, of Bershadsky's propensity for violence (see Sheila C. v Povich, 11 AD3d 120, 129-130 [1st Dept 2004).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 30, 2017

CLERK