DECISION AND ORDER The following e-filed documents, listed by NYSCEF document numbers 4-60 were read on these motions seeking summary judgment. In this action seeking to recover damages for personal injuries suffered as a result of an alleged assault, the plaintiff moves for an Order (Motion 07) granting summary judgment pursuant to CPLR §3212 on the issue of liability as against defendant John P. Picone, Inc. (hereinafter Picone) and setting this matter down for immediate inquest on damages. Picone cross-moves for an Order (Motion 09) granting summary judgment and dismissing the plaintiff’s complaint and all cross-claims against Picone. The City of New York (hereinafter City) also moves for an Order (Motion 10) granting summary judgment dismissing plaintiff’s complaint in its entirety. Motion 10 is unopposed, and neither plaintiff nor co-defendant Picone object to dismissal as to the City. For the reasons set forth below, Motion 07 is denied and Motions 09 and 10 are granted. This action arises out of an assault and battery that plaintiff alleges occurred on September 3, 2015, at a construction site at the intersection of West 33rd Street and Bayview Avenue in Brooklyn, New York. The plaintiff alleges that he was attacked on that date by defendant James Harper a/k/a Vladimir Augustin, and that as a result of the attack he sustained multiple severe injuries, including but not limited to three puncture wounds to the torso, a torn meniscus, a torn medial collateral ligament, a torn anterior cruciate ligament, and a trabecular fracture of the left leg. In support of his motion the plaintiff submits, inter alia, the pleadings, copies of the deposition transcripts of plaintiff and of Wayne Andersen, a foreman for Picone, and copies of NYPD records relating to the incident. Plaintiff argues that he is entitled to summary judgment on the issue of liability against Picone under the doctrine of respondeat superior and for Picone’s negligent hiring and supervision of Mr. Augustin. Prior to the date of the incident, plaintiff states that Picone was hired by the City to perform construction work, and specifically to reconstruct a storm sewer outfall pipe located at the intersection of West 33rd Street and Bayview Avenue. Plaintiff refers to the testimony of Wayne Andersen, who testified that Mr. Augustin’s job on the date of the accident was to be positioned in front of barriers at the entrance site, to direct deliveries, and to “make sure nobody came onto the job site, for safety reasons.” See NYSCEF Doc. No. 19 at p. 57. He further testified that Picone contracted with a separate security company when hiring security guards for a particular project. Although not all work sites had security guards present, Picone hired one for this project. Mr. Andersen also testified that he did not have any knowledge as to Mr. Augustin’s criminal history and was not aware whether a background check was performed prior to his hiring. Id. at p. 94. The plaintiff testified that he lived across the street from the construction project, and that on the day of the incident he observed a pile of sand in front of the work site. He testified that he used bags of sand to insert into his sneakers in order to maintain their shape. He walked over to the sand pile and began filling the bags with sand, when an unidentified individual, who may have been an employee on the project, told him to stop. The plaintiff testified that he did not enter the construction site, and only went as far as the sand pile, which was in front of the entrance to the site. When asked to stop filling the bags of sand, the plaintiff complied, and began walking across the street to his home. According to the plaintiff’s testimony, he had no interaction with Mr. Augustin up to that time. As he was walking up the ramp to his premises he turned around and heard Mr. Augustin say something to the unidentified individual, and observed Mr. Augustin walking toward him, stating “[a]nything you said have something to do with me[?]” Id. at 44. The plaintiff testified that he responded, “ [N]o, I don’t have a problem with you. No, we fine. We good.” Id. at 49. Mr. Augustin continued to walk closer to the plaintiff’s home, and plaintiff observed that he was reaching into his back pocket, and appeared to have a weapon on him. Mr. Augustin replied with expletives and attacked plaintiff by lunging at him with a fist. Id. at p. 49. Plaintiff testified that Mr. Augustin punched him in the face, and that after this first punch the plaintiff attempted to defend himself. Id. at p. 50. Plaintiff testified that at some point during the altercation, Mr. Augustin stabbed him at least three times. Id. at p. 51. Plaintiff also testified that two men who “looked like they [knew Mr. Augustin]” went through plaintiff’s pockets during the incident. Id. at p. 54-58. When asked whether plaintiff had known Mr. Augustin prior to this date, plaintiff testified that “ [a] friend of mine was an acquaintance of him, and I was a friend of his friend,” and he later claimed to know Mr. Augustin from two different friends. Id. at p. 46. The plaintiff argues that Picone is liable under the doctrine of respondeat superior, which renders an employer vicariously liable for torts committed by an employee acting within the scope of their employment. Plaintiff also argues that an employer can be held liable even for intentional torts when the tortious conduct is generally foreseeable, and a natural incident of employment. The plaintiff concedes that Mr. Augustin may not have been explicitly authorized by Picone to assault the plaintiff, however he contends that here, the assault was carried out in furtherance of Picone’s business, and that Mr. Augustin was acting within the scope of his employment, which included keeping members of the public from entering the job site. The plaintiff also argues that this conduct was foreseeable based on Mr. Augustin’s criminal history. The plaintiff also argues that Picone is liable for the negligent hiring and supervision of Mr. Augustin. Plaintiff maintains that he can establish a cause of action based on negligent hiring and supervision because he has demonstrated that Picone knew or should have known of Mr. Augustin’s propensity for the conduct which caused the injury. Plaintiff further contends that prior criminal history can be utilized in determining whether acts were foreseeable. Plaintiff asserts that if Picone had conducted a background investigation of Augustin, Picone would have learned of the plaintiff’s prior violent criminal convictions and assigned him to a position that did not involve “security enforcement.” Plaintiff further contends that Mr. Andersen negligently supervised Mr. Augustin because he walked away when the assault was taking place. In opposition, and in support of its cross motion to dismiss the complaint, Picone submits, inter alia, the pleadings, photographs of the alleged incident site, copies of deposition transcripts of plaintiff and of Wayne Andersen, and employment records of Mr. Augustin. Picone states that it hired Mr. Augustin from Union Local 731 as a laborer, and that Mr. Augustin’s job was to direct traffic and ensure that no unauthorized person entered the construction site for safety reasons, since heavy machinery was operating on site. Picone states that the incident occurred while Mr. Augustin was on his lunch break and that it took place outside of the construction site. Picone contends that the incident occurred outside of Mr. Augustin’s scope of employment because the altercation did not arise out of Mr. Augustin’s attempt to keep the plaintiff outside of the construction site, but rather as a result of Mr. Augustin’s interpretation of plaintiff’s interaction with another worker. Picone argues that it is not vicariously liable for Mr. Augustin’s torts because liability will not attach for torts committed by an employee who is acting solely for personal motives that are unrelated to the furtherance of the employer’s business. Picone also contends that although the plaintiff moves for summary judgment on liability against Picone for negligent hiring, the plaintiff’s second amended complaint and bill of particulars do not allege negligent hiring. Picone argues that even if the Court finds that the negligent hiring cause of action is properly pled, there is no requirement that an employer perform a criminal background check before hiring an individual, unless the employer knows of facts that would lead a reasonable prudent employer to do so. The City opposes the plaintiff’s motion, and cross-moves for summary judgment. In support of its motion, the City submits the pleadings, the deposition transcripts of the plaintiff, Joo Seet, a Department of Environmental Protection construction manager, and Wayne Anderson, and a copy of the plaintiff’s moving papers seeking summary judgment. The motion is unopposed. The City argues that it cannot be held liable under a theory of respondeat superior because Picone was an independent contractor. The City further contends that there are no issues of fact with regard to whether it committed an assault or battery on the plaintiff, and whether it is liable for the negligent hiring, retention or supervision of Mr. Augustin. According to the testimony of Joo Seet, the City was not involved in the hiring of employees or the determination of the number or type of laborers needed for the project. Mr. Seet testified that those responsibilities were left to Picone. The City further asserts that it was not responsible for preventing members of the public from entering the work site. Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); see also Phillips v. Kantor & Co., 31 NY2d 307 (1972). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact. Alvarez at 324; see also Zuckerman v. City of New York, 49 NY2d 557 (1980). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion. Marine Midland Bank, N.A. v. Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). If the prima facie burden has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial. CPLR §3212 (b); see also Alvarez at 324; Zuckerman at 562. Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form, and “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman at 562. Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment. Rivera v. State of New York, 34 NY3d 383 (2019); see also Judith M. v. Sisters of Charity Hosp., 93 NY2d 932 (1999); Riviello v. Waldron, 47 NY2d 297 (1979). “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business.” Beauchamp v. City of New York, 3 AD3d 465, 466 (2d Dept 2004) (internal quotation marks omitted). However, where an employee’s actions are taken for wholly personal reasons, and for reasons unrelated to their job, their conduct cannot be said to fall within the scope of employment. Id. If an employee “for purposes of [their] own departs from the line of…duty so that for the time being [their] acts constitute an abandonment of…service, the [employer] is not liable.” Rivera at 389, quoting Judith M. at 933. In determining whether an employee was acting within the scope of employment as it relates to vicarious liability, the factors to be considered include: [T]he connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. Riviello at 303; see also D’Auvergne v. Dis Is We Thing, Inc., 110 AD3d 948 (2d Dept 2013). While the determination of whether an employee acted within the scope of employment is generally left to a jury, the issue may be resolved on summary judgment when the material facts are undisputed. See Rivera, 34 NY3d 383; Joseph v. City of Buffalo, 83 NY2d 141 (1994). In Rivera, the claimant was an inmate at a prison operated by the State Department of Correctional Services. One morning, when the inmate entered the prison mess hall, a correction officer mocked the inmate’s medically-issued protective helmet, which he was required to wear due to a seizure disorder. After the inmate asked the officer not to make fun of his helmet, the officer called for him to come back to the doorway of the mess hall, and when he obliged, the officer grabbed the inmate’s jacket, pulled him outside the mess hall, and began punching him on the face and head. The officer continued to hit and stomp on the inmate while he was on his knees. The officer also removed the inmate’s helmet and continued the assault by striking him in the head with his radio. Two other correction officers also pushed the inmate down and applied handcuffs, and while immobilized on the floor, the inmate was punched, kneed, and kicked in the head. The Court of Appeals in Rivera determined that “the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of [the employee] as a matter of law.” Id. at 391. The Court further found that there was no evidence that the employer should or could have reasonably anticipated such an unjustified use of force, and that based on the uncontested facts, there were no triable issues of fact as to whether the officers were acting within the scope of their employment. Id. Similarly, in Judith M., the Court of Appeals determined that there were no triable issues of fact as to whether a hospital could be liable for the alleged intentional torts of its orderly, which included the sexual assault of the plaintiff. Moreover, there is no common law duty to institute specific procedures for hiring employees unless the employer is aware of facts that would lead a reasonable prudent employer to investigate the employee. See Carnegie v. J.P. Phillips, Inc., 28 AD3d 599 (2d Dept 2006). “A necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” 106 N. Broadway, LLC v. Lawrence, 189 AD3d 733, 736-737 (2d Dept 2020), quoting Shu Yuan Huang v. St. John’s Evangelical Lutheran Church, 129 AD3d 1053 (2d Dept 2015). Here, Picone has established its entitlement to judgment as a matter of law regarding the plaintiff’s theories of liability related to respondeat superior and negligent hiring and supervision. In opposition, the plaintiff has failed to raise a triable issue of fact as to whether Mr. Augustin was acting within the scope of his employment when he violently assaulted the plaintiff. The facts surrounding the circumstances are uncontested, and the assault “was not in furtherance of any employer-related goal whatsoever.” Rivera at 390. The plaintiff has submitted no evidence that suggests that the “use of force” could have been a foreseeable aspect of Mr. Augustin’s duties. See Rivera at 390. Although the plaintiff seeks to characterize Mr. Augustin’s job as being akin to that of a “security guard” who might be required to use “force” to protect the premises, the record more accurately reflects Mr. Augustin’s duties as being those undertaken to help ensure the safety both of the workers and civilians who might unknowingly enter the job site, on which heavy and potentially dangerous machinery was being utilized. Mr. Andersen testified that Mr. Augustin’s main jobs included directing traffic when any deliveries came in and to make sure nobody entered the job site for safety reasons. See NYSCEF Doc. No. 36 at p. 57. Mr. Andersen’s deposition testimony makes clear that security guards were hired by Picone through a separate contract with security companies, and that Mr. Andersen’s job duties did not include acting as a security guard or using force to keep the public from entering the construction site. Joo Seet, who was working as the construction project manager, also testified that Mr. Augustin was a “flagman” who was there “to control traffic.” See NYSCEF Doc. No. 11 at p. 34. Further, the plaintiff did not have any interaction with Mr. Augustin just prior to the attack, and the record is clear that this was not an altercation that arose from a dispute with Mr. Augustin in the course of carrying out his work duties. The plaintiff testified that he was on the ramp leading to his home when Mr. Augustin crossed the street and followed him shouting expletives, just prior to the attack. In doing so, Mr. Augustin departed from the line of duty, and his acts constituted an abandonment of service, precluding a finding of respondeat superior. See Judith M. v. Sisters of Charity Hosp., 93 NY2d 932. Assuming arguendo that the plaintiff has properly pled a cause of action for the negligent hiring, retention, or supervision of Mr. Augustin, he has failed to raise a triable issue of fact concerning whether Picone knew, or should have known, about Mr. Augustin’s violent propensity for the conduct which caused the injury. Vasquez v. Sirkin Realty Corp., 107 AD3d 410 (1st Dept 2013); see also Carnegie v. J.P. Phillips, Inc., 28 AD3d 599. Finally, the City has established as a matter of law that it was not liable for the intentional torts of a laborer of Picone, who was an independent contractor contracted for a specific job, i.e. to perform emergency construction to fix a storm sewer. “Ordinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractor’s work is performed.” Chainani by Chainani v. Board. of Educ. of City of New York, 87 NY2d 370, 380-381 (1995). As such, the City’s unopposed motion for summary judgment is granted. The remaining contentions are without merit. Accordingly, it is hereby ORDERED, that the plaintiff’s motion for summary judgment against John P. Picone, Inc. (Motion 07) is DENIED; and it is further ORDERED, that John P. Picone, Inc.’s cross motion for summary judgment (Motion 09) is GRANTED and the plaintiff’s complaint is dismissed as against it; and it is further ORDERED, that the City of New York’s unopposed cross-motion for summary judgment (Motion 10) is GRANTED and the plaintiff’s complaint is dismissed as against it. This constitutes the decision and order of the Court. Dated: October 11, 2021
