DeJesus v DeJesus

[*1] DeJesus v DeJesus 2013 NY Slip Op 51670(U) Decided on August 14, 2013 Supreme Court, Kings County Schmidt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2013
Supreme Court, Kings County

Marita DeJesus and Alberto Sanchez,, Plaintiffs,

against

Leoncio DeJesus, 8757 Bay 16th LLC, FTC Management Inc., Felicia Colon Management Inc., Community Managers, Advanced Housing Developers, Inc., and Felicia Colon, Defendants.



30224/08



Plaintiff Attorney:

Edward C. Lehman, Esq.

Scott Baron & Associates, P.C.

159-49 Cross Bay Blvd.

Howard Beach, NY 11414

Defendant Attorney:

White & McSpedon, P.C.

875 Avenue of the Americas, Suite 800

New York, NY 10001

David I. Schmidt, J.

Upon the foregoing papers, defendants 8757 Bay 16, LLC, FTC Management Inc., Felicia Colon Management Inc., Community Managers, and Felicia Colon (collectively FTC defendants) move for an order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing the complaint of plaintiffs Marita DeJesus and Alberto Sanchez.

Plaintiffs commenced this action against defendants based on an alleged assault and battery (the incident) upon plaintiffs by defendant Leoncio DeJesus in an apartment building located at 8757 Bay 16th Street, in Brooklyn (the building).[FN1] At the time of the incident, Mr. DeJesus (the Super) was employed by FTC as superintendent who lived in the building. Ms. DeJesus was also a tenant who lived with her boyfriend Mr. Sanchez. Plaintiffs assert the following causes of action: (1) assault and battery as against the Super; (2) negligence as against FTC Management by the principle of respondeat superior; and (3) negligent hiring, training and supervision as against FTC Management.

According to Mr. Sanchez's deposition testimony, on November 6, 2007, they approached the Super's apartment to request that the Super turn off an alarm (located in the Super's apartment) which was ringing in the building. Sanchez testified that, he was approximately four feet from the Super's door, with Ms. DeJesus following behind him, when the Super came out, said "I don't want no music" and threw plumbing acid from a jar onto plaintiffs. Mr. Sanchez also stated that Mr. Gonzalez, a witness who was in the Super's apartment at the time of the incident, subsequently planted a knife in the hallway to "frame" Mr. Sanchez so that it would appear that Mr. Sanchez had approached the Super with a knife. According to his deposition testimony, Mr. Sanchez did not bring anything with him to the Super's apartment.

Ms. DeJesus testified that, on the date of the incident, she and Mr. Sanchez knocked on the Super's door, and the Super subsequently opened the door, said "no music" and then threw plumbing acid from a container that the Super was holding at both plaintiffs. Plaintiff DeJesus also stated that neither she nor Mr. Sanchez were carrying anything when they approached the Super's apartment.

FTC defendants move for summary judgment dismissing plaintiffs' complaint on the grounds that plaintiffs cannot establish that FTC Management negligently hired or retained the Super, or that the Super's actions during the incident were within the course of his employment. At the outset, FTC notes that the deposition testimony of Super indicates a version of the incident that is alternate to plaintiffs' version. To that effect, the Super testified that, immediately prior to the incident, the Super had briefly returned from vacant apartment B4 to his apartment to get tools. He retrieved a pickle jar filled with Liquid Plumber, to unclog a bathroom drain in B4. According to the Super, he was leaving his apartment with a jar of plumbing acid when Mr. Sanchez, with Ms. DeJesus next to him, arrived at the Super's apartment door waving a knife and yelling "I am going to kill you!" The Super states that Mr. Sanchez suddenly lunged at him with a knife and the Super reacted by jumping backwards. According to the Super, as a result of jumping backwards, he accidentally spilled plumbing acid on himself as well as Mr. Sanchez and Ms. DeJesus. The Super also testified that Mr. Gonzalez, who assisted the Super with maintenance work, was inside the Super's apartment and witnessed the incident.

In addition, the Super testified that, prior to the incident, he had both complained to FTC about Mr. Sanchez and reported Mr. Sanchez to the police with respect to Mr. Sanchez playing his music "too loud." The Super stated that, in all his years working at the building, he never had a problem with any tenant other than Mr. Sanchez. Lastly, the Super testified that he had two prior incidents with Mr. Sanchez. In one incident he was "jumped" by Mr. Sanchez in the hallway and in the other incident he was also attacked by Mr. Sanchez outside by a convenience store.

FTC defendants also refer to a written statement from Mr. Gonzalez wherein he states [*2]that Mr. Gonzalez was in the Super's apartment when the incident occurred.[FN2] According to Mr. Gonzalez, after the Super opened the door Mr. Gonzalez heard Mr. Sanchez state "I'm going to kill you," and Mr. Gonzalez saw Mr. Sanchez lunge a knife at the Super in a stabbing motion. Mr. Gonzalez states that the Super subsequently avoided the knife and pushed Mr. Gonzalez back into the apartment. Mr. Gonzalez also states that he did not observe the Super throw any liquid on plaintiffs.

FTC defendants contend that Mr. Sanchez had been a problem tenant, and as a result, both a hold-over proceeding had already been undertaken against Mr. Sanchez just prior to the incident, and Ms. DeJesus had also been legally notified that Mr. Sanchez had to vacate the apartment. To that effect, FTC defendants cite to the deposition testimony of Shari Serrano, the property manager for the building, wherein she states that she was made aware of a conflict between the Super and Mr. Sanchez which involved Mr. Sanchez yelling and playing loud music. Ms. Serrano testified that was also aware of a separate complaint filed against both plaintiffs by Jeannette Sanchez, a tenant living in an apartment above plaintiffs, who claimed that plaintiffs repeatedly threatened her. Lastly, Ms. Serrano testified that, prior to the incident, FTC took steps to remove Mr. Sanchez from the building due to tenant complaints regarding Mr. Sanchez's verbally and/or physically harassing behavior.

FTC defendants maintain that plaintiff "clearly suffers from mental illness." Specifically, they cite to Mr. Sanchez's own deposition testimony that he had previously had a problem with his upstairs neighbor Ms. Sanchez because Mr. Sanchez believed that Ms. Sanchez was his sister, even though they were not related, which made Ms. DeJesus jealous. Specifically, FTC defendants note that Mr. Sanchez testified that he would go to Ms. Sanchez's apartment in the night, once a week, knock on the door, and then run back downstairs. According to Mr. Sanchez, as a result of these occurrences, the police were called. FTC defendants also note that Mr. Sanchez admitted, during his deposition testimony, that he got into two physical altercations with the Super prior to the date of the incident: once at a convenience store when the Super was "talking about" Mr. Sanchez; and once at Mr. Sanchez's apartment when the Super took away water that Mr. Sanchez had taken out of his fridge. Moreover, FTC defendants cite to Mr. Sanchez's testimony wherein he states that the knife found by the police after the incident was "planted" by Mr. Gonzalez to "frame" him.

FTC defendants argue that plaintiffs' negligence claims must be dismissed, as the Super reacted to Mr. Sanchez's knife attack in self defense. In any event, FTC defendants contend that plaintiffs' negligent hiring claims must be dismissed. According to FTC defendants, even under plaintiffs' respective versions of the incident, FTC Management cannot be liable, as the Super was acting out of the scope of employment. They argue that the Super has had no criminal history as there is no evidence of any violent or criminal behavior by the Super while he was employed by FTC in the eight years prior to incident. Rather, FTC defendants note that Mr. Sanchez had a history of being a problem tenant who they were in the process of evicting. Further, FTC defendants assert that there is no scenario pursuant to which FTC could be held liable, as the Super was not furthering the business of FTC by throwing plumbing acid on plaintiffs.

Defendant Super partially opposes FTC defendants' motion, specifically with respect to FTC's assertion that he was acting outside the scope of his employment at the time of the incident. According to the Super, he takes no position with respect to FTC defendants' motion concerning dismissal of plaintiffs' negligent hiring claim. The Super denies that he intentionally threw plumbing liquid on plaintiffs. According to the Super, he reacted entirely in self defense in response to Mr. Sanchez's knife attack. In support, the Super notes that the police recovered a knife after responding to the incident. [*3]

Plaintiffs argue that FTC defendants' summary judgment motion should be denied in its entirety, "with prejudice to renew." First, they argue that, the fact that the Super testified to an alternate version of the events leading up to and including the incident, standing alone, warrants denial of defendants' motion. In addition, plaintiffs contend that defendants were negligent under the theory of respondeat superior as the Super was acting within the scope of his employment. According to plaintiffs, the Super's attack was an attempt to further his employer's business "by quieting what superintendent DeJesus perceived to be a problem tenant." In support, plaintiffs refer to their respective testimony that, just prior to throwing plumbing acid on plaintiffs, the Super stated "no music." Plaintiffs also refer to Ms. Serrano's deposition testimony that (1) she was aware that there was a conflict between the Super and Mr. Sanchez over Mr. Sanchez playing his music loudly; and, and (2) Ms. DeJesus lodged a complaint against the Super because Ms. DeJesus claimed that the Super raised his voice. Plaintiffs also note that subsequent to the date of the attack at issue herein, tenant complained about another instance of the Super's verbal abuse.

Discussion

Summary judgment is granted only when it is clear that there are no triable issues of fact that exist in an action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The party moving for summary judgment "bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law" (Holtz v Niagara Mohawk Power, 147 AD2d 857 [1989]). Once such a showing has been established, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324, citing Zuckerman v City of New York, 49 NY2d 557 [1980]). It is equally well settled that in making the determination of whether a movant has satisfied the requisite burden of proof, the nonmovant is entitled to the benefit of every favorable inference (see e.g. Negri v Stop & Shop, 65 NY2d 625 [1985]; Louniakov v M.R.O.D. Realty, 282 AD2d 657 [2001]). Further, a motion should not be granted where: (1) facts are in dispute; (2) conflicting inferences may be drawn from the evidence; or (3) there are issues of credibility (Scott v Long Is. Power Auth., 294 AD2d 348 [2002], citing Dolitsky v Bay Isle Oil Co., 111 AD2d 366 [1985]). On such a motion, the court is not to determine credibility, but whether a factual issue exists (Capelin Assoc. v Globe Mfg., 34 NY2d 338 [1973]).

Under the doctrine of respondeat superior, an employer can be vicariously liable for its employees' tortious acts only if said acts were committed in furtherance of the employer's interest or business (N.X. v Cabrini Med. Ctr., 97 NY2d 247 [2002]; see also Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 [2007]; Davis v Larhette, 39 AD3d 693 [2007]). "[A]n employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business" (Jackson v New York Univ. Downtown Hosp., 69 AD3d 801 [2010] [citations omitted]). Thus, an employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer (see Kwak v Wolfenson, 258 AD2d 418 [1999], citing Riviello, 47 NY2d at 303 and Adams v New York City Tr. Auth., 88 NY2d 116 [1996]). In this regard, an employer's liability will attach on such a claim only when the employer knew or should have known of the employee's violent propensities (see Detone v Bullit Courier Serv., 140 AD2d 278 [1988]; lv denied 73 NY2d 702 [1988]).

The Court finds that FTC Management cannot be held vicariously liable for any alleged negligence by the super under the theory of respondeat superior (see Comerford v Brown, 84 AD3d 1143 [2011]). The evidence presented by the parties establishes that the super was not acting within the scope of employment when the incident occurred (see Felberbaum v Weinberger, 54 AD3d 717 [2d Dept 2008]). There is nothing in the record to indicate that the super's action in splashing liquid plumber upon plaintiffs was committed in furtherance of FTC [*4]Management's business (see Adams v New York City Transit Authority, 88 NY2d 116 [1996]). Plaintiffs have failed to raise a triable issue of fact in this regard.

The Court also grants that portion of FTC defendants' motion with respect to plaintiffs' negligent hiring claim as against FTC Management. In order to establish a cause of action based on negligent hiring and supervision, the movant must be demonstrate that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (Evans v City of Mount Vernon, 92 AD3d 829 [2012]). An employer's negligence is established when the harm caused by an employee would have not occurred had the employer taken reasonable care in making decisions respecting the hiring and training of employees (Detone v Bullit Courier Serv., 140 AD2d 278 [1988])." Here, there is no evidence of any violent or criminal behavior by the super prior to the incident. Accordingly, there is nothing to suggest that FTC Management was negligent in the hiring, training, or management of the super.

For the foregoing reasons, FTC defendants' motion for summary judgment dismissing plaintiffs' causes of action against FTC Management for negligence based upon the principle of respondeat superior and for negligent hiring is granted.

The foregoing constitutes the order and decision of the court.

E N T E R

J. S. C. Footnotes

Footnote 1:Plaintiff Marita DeJesus is not related to defendant Leoncio DeJesus.

Footnote 2:FTC defendants note that the present motion was filed prior to their receipt of Mr. Gonzalez's June 22, 2012 deposition transcript, and accordingly attach a letter by Mr. Gonzalez instead.