Farash v Ashforth Warburg Assoc.

[*1] Farash v Ashforth Warburg Assoc. 2009 NY Slip Op 52643(U) [26 Misc 3d 128(A)] Decided on December 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter JJ
570450/09.

Daniel Farash, Plaintiff-Appellant-Cross- Respondent,

against

Ashforth Warburg Associates, Defendant-Respondent-Cross- Appellant.

Plaintiff, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered August 25, 2008, which granted defendant's motion to dismiss plaintiff's claims for negligent supervision and retention, trespass and for "annoyance and aggravation" damages. Defendant cross-appeals from that portion of the aforesaid order which granted plaintiff summary judgment with respect to liability on his breach of contract cause of action.

Per Curiam.

Order (Peter H. Moulton, J.), entered August 25, 2008, affirmed, with $10 costs.

The action seeks to recover damages allegedly sustained by plaintiff as a result of various tortious acts committed by a sales agent of defendant real estate brokerage firm during and after an "open house" at plaintiff's cooperative apartment. Plaintiff's negligent hiring, retention and supervision claims were properly dismissed, there being no evidence on this record that defendant knew or should have known of its employee's destructive propensities (see Coffey v City of New York, 49 AD3d 449 [2008]). There is no evidence in the record tending to indicate that defendant could have reasonably foreseen that its employee would, in the fit of an emotional breakdown, "vandalize" or otherwise damage plaintiff's apartment. Nor can defendant be held vicariously liable for its employee's alleged trespass because that conduct did not serve defendant's interests and was an obvious departure from the employee's normal work-related duties as a sales associate (see White v Hampton Mgt. Co. LLC.,35 AD3d 243 [2006]).

Plaintiff cannot recover damages for his alleged emotional, psychological or mental distress and anxiety because, absent a legal duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty (see Rakylar v Washington Mut. Bank, 51 AD3d 995 [2008]) or from the malicious destruction of personal property (see Probst v Cacoulidis, 295 AD2d 331 [2002]).

In disposing of the main appeal, we have not considered the letter affidavits submitted by plaintiff ex parte following oral argument. The issues raised on defendant's cross appeal, not [*2]having been briefed by defendant, are deemed abandoned.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 29, 2009