New York Supreme and/or Appellate Courts Appellate Division, First Department
March 8, 2012
CHARLES BOONE, PLAINTIFF-APPELLANT,
M & G CARTING, LLC, ETC., DEFENDANT-RESPONDENT.
Boone v M & G Carting, LLC
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 March 8, 2012
Tom, J.P., Andrias, Catterson, Moskowitz, Roman, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about October 26, 2010, which denied plaintiff's motion for a default judgment against defendant and directed entry of a judgment dismissing the action, unanimously affirmed, without costs.
Plaintiff failed to allege facts that would establish that the alleged assault on him by defendant's employee was "within the scope of the employment" and was "generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ; see e.g. White v Hampton Mgt. Co. L.L.C., 35 AD3d 243 ; CPLR 3215[f]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 8, 2012
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