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Bornstein v. 255 West 84tm Owners Corp.

Supreme Court, New York County

July 8, 2013

255 WEST 84™ OWNERS CORP. and MIDBORO MANAGEMENT, INC., Defendants. Index No.116516/10

Unpublished Opinion


The following papers, numbered 1 to 4, were read on this motion by defendants for summary judgment dismissing the complaint.


Notice of Motion/ Order to Show Cause — Affidavits — Exhibits .....1, 2

Answering Affidavits — Exhibits (Memo) ........3

Replying Affidavits (Reply Memo)...................4

Cross-Motion:  Yes  No

Hilda Bornstein (plaintiff), [1] commenced the herein action against 255 West 84th Street Owners Corp. (Owners), a residential cooperative that owns, operates and manages the building located at 255 West 84th Street, New York, NY 10024 (the building), and Midboro Management, Inc. (Midboro) (collectively, defendants), the managing agent of the building, to recover damages for the theft of multiple pieces of jewelry from her apartment. The theft was committed by William Vasquez (Vasquez), an employee of the building, who pleaded guilty to burglary in the second degree and is currently serving an eight-year prison term. Now before the Court is a motion by the defendants for summary judgment dismissing the complaint, pursuant to CPLR 3212. Plaintiff is in opposition to the motion. Discovery in this matter is complete and the Note of Issue has been filed.


This case arises from an incident that occurred in plaintiffs apartment, 11D, at the building in May or June of 2008 (see Defendants' Affirmation (Aff.) in Support at 15; Complaint at 17). Plaintiff has lived in the building for approximately 40 years (see Defendants' Aff. in Support, Examination Before Trial (EBT) of Hilda Bornstein (Bornstein EBT), exhibit B, p 6; Bill of Particulars (BP) ¶ 3). Plaintiff is a rent-controlled tenant of the building who pays her rent to Midboro (see Bornstein EBT, p 34). Midboro has managed the building since 2002 (Aff. of Michael Wolfe (Wolfe Aff.) at 2).

In or about May or/through June of 2008, plaintiff was vacationing in France, and upon her return on June 8, 2008, she alleges that she discovered jewelry was missing from her apartment (see Complaint ¶¶15-16). Plaintiff testified that she filed a report with the police and informed the superintendent of the building, "Jimmy, " as well as the property manager, of the missing jewelry (see Bornstein EBT, p. 13-16). Plaintiff testified that a detective assigned to her case interviewed Jimmy and the entire crew of the building regarding the incident, yet all men denied knowledge and culpability (see Bornstein EBT, p. 22).

Vasquez worked at the building since 2002 (see EBT of Ellen Marrone (Marrone EBT), exhibit C, p. 27), he was hired as a porter and/or doorman[2] and was an employee of Owners (Wolfe Aff. at 4). In June of 2009, a year after the subject burglary, Vasquez was arrested in connection with this incident and other burglaries in the building (Aff. of Earl Kirn (Kirn Aff.) at 4). Vasquez confessed to the robbery of plaintiff's jewelry (BP ¶ 18-20) and was subsequently fired from his position at the building (Wolfe Aff. at 3).

In this action, plaintiff seeks damages against Owners and Midboro for the negligent hiring, retention, and supervision of Vasquez. Plaintiff alleges she suffered damages in an amount no less than five hundred thousand dollars, including extreme mental anguish, outrage, anxiety concerning her security, disruption of her personal life, and loss of enjoyment of the ordinary pleasures of every day life due to the defendants' negligence.

Now before the Court is a motion by defendants, pursuant to CPLR 3212, for summary judgment dismissing the complaint. In support of the motion, defendants argue, inter alia, that Vasquez's actions were outside the scope of his employment, were done in furtherance of personal motives and not the employer's business, and should be considered an abandonment of services. Defendants maintain that theft by an employee does not fall within the scope of employment, and employers are not liable for the thefts of employees in New York. Moreover, defendants justify their employment practices regarding Vasquez by arguing that an employer is only liable when they knew or should have known an employee had tortious propensities for the conduct at issue, and they had no knowledge of Vasquez's criminal propensities until after the incident occurred. Moreover, defendants argue that there was no legal duty to conduct a background check or inquire into an applicant's criminal history because they were not alerted to facts that would lead a reasonable person to utilize these extra precautions. Defendants also argue that Midboro, the managing agent, was not in complete and exclusive control of the building and therefore cannot be liable for the actions of Vasquez and the theft of plaintiff's jewelry.

In opposition, plaintiff argues, inter alia, that defendants' motion for summary judgment should be denied because there are material questions of fact as to whether the defendants breached their duty owed to plaintiff by failing to conduct a reasonable investigation into Vasquez's qualifications and references before employing him, and whether performing a background and references check would have created a duty of further inquiry or shown that the theft would have been foreseeable. Moreover, plaintiff argues that defendants breached their duty by hiring Vasquez, as his criminal history shows he was unfit for the position, and defendants failed to even conduct a minimal investigation before approving Vasquez for employment. If defendants had utilized adequate procedures, plaintiff proffers, they would have been alerted to Vasquez's criminal record, and had defendants completed a background check into his criminal history they would have known about Vasquez's propensity for theft.


Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; see also International Customs Assoc, v Bristol-Meyers Squibb Co., 233 A.D.2d 161, 162 [1st Dept 1996]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 N.Y.3d 733, 735 [2008]).

Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida, 100 N.Y.2d at 81; see also Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CPLR 3212[b]). When a plaintiff opposes the summary judgment motion of a defendant, the plaintiff is "required to set forth something more than vague general charges of wrongdoing. . . where. . . the plaintiffs fail to come forward with evidentiary data indicating merit to the cause of action as alleged, the court should not hesitate to grant defendants' motion for summary judgment" (Greenbaum v American Metal Climax, 27 A.D.2d 225, 232 [1st Dept 1967]). The opposing party does not meet its burden by merely repeating or referencing the bills of particulars (Mahnelli v Shifrin, 260 A.D.2d 227, 228-29 [1st Dept 1999]). Furthermore, facts presented by the movant in his papers may be deemed to be admitted if the opposing party does not contest or deny them (Sports Channel Assoc., v Sterling Mets, LP., 25 A.D.3d 314, 315 [1st Dept 2006], quoting Kuehne & Nagel v Baiden, 36 N.Y.2d 539, 544 [1975]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the non moving party, and gives the non moving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negro v Stop & Shop, Inc., 65 N.Y.2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotunda Extruder's, Inc. v Suppose, 46 N.Y.2d 223, 231 [1978]).


An 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 (Fernandez v Rustic Inn, Inc., 60 A.D.3d 893, 896 [2d Dept 2009]; see also Carnegie v J.P. Phillips, Inc., 28 A.D.3d 599, 600 [2d Dept 2006]). If it is established that the incident occurred when the employee was acting within the scope of his employment, liability may ensue (Davis v City of New York, 226 A.D.2d 271, 271-72 [1st Dept 1996]). Even if the employee acts negligently or intentionally, as long as the conduct is "generally foreseeable and a natural incident of the employment, " an employer may be liable (Judith M. v Sisters of Charity Hosp., 93 N.Y.2d 932, 933 [1999]; RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 N.Y.3d 158, 164 [2004]). If the employee departs from his duties, acting not within the scope of his employment, his actions are considered an abandonment of his service to the employer, and the employer may not be held liable (Judith M., 93 N.Y.2d at 933; RJC Realty, 2 N.Y.3d at 164). An employee's actions are not within the scope of his employment unless their purpose is to further the interest or business of the employer (Dawn's, 226 A.D.3d at 272).

Notwithstanding the aforementioned, an employer may be held liable for negligent hiring, supervision, and retention of the employee (see Peter T. v Children's Vail., Inc., 30 A.D.3d 582, 586 [2d Dept 2006]; Carnegie, 28 A.D.3d at 600), which is the cause of action that plaintiff asserts against defendants in this case. However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see G.G. v Yonkers Gen. Hosp., 50 A.D.3d 472, 472 [1st Dept 2008] ["In order to recover against an employer for negligent retention of an employee, a plaintiff must show that the employer was on notice of a propensity to commit the alleged acts"]; White v Hampton Gt. Co. LLC, 35 A.D.3d 243, 244 [1st Dept 2006]; Gomez v City of New York, 304 A.D.2d 374, 374 [1st Dept 2003] ["recovery on a negligent hiring and retention theory requires a showing that the employer was on notice of the relevant tortuous propensities of the wrongdoing employee"]; Jackson v New York Univ. Downtown Hosp., 69 A.D.3d 801, 801 [2d Dept 2010]; Sandra M. v St. Luke's Roosevelt Hosp. Ctr., 33 A.D.3d 875, 878 [2d Dept 2006], quoting Kirk man v Astoria Gen. Hosp., 204 A.D.2d 401, 403 [2d Dept 1994] ["A cause of action for negligent based upon the defendant's status as an employer... 'when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm'"]; Doe v Cohan, 17 A.D.3d 509, 512 [2d Dept 2005] appeal denied 6 N.Y.3d 701 [2005] ["plaintiffs failed to come forward with evidence sufficient to raise a triable issue of fact as to whether they knew or should have known that the bus driver had a propensity to commit acts of sexual misconduct"]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 [2d Dept 1997] cert denied 522 U.S. 967 [1997] Iv dismissed 91 N.Y.2d 848 [1997]).

While landlords have a "common-law duty to take minimal precautions to protect tenants from foreseeable harm" (Burg's v Aqueduct Realty Corp., 92 N.Y.2d 544, 548 [1998], quoting Jacqueline v City of New York, 81 N.Y.2d 288, 293-94 [1993]), "there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee" (Jackson, 69 A.D.3d at 801-802, quoting Carnegie, 28 A.D.3d at 600, quoting Doe v Whitney, 8 A.D.3d 610, 612 [2d Dept 2004]; see also Kenneth R., 229 A.D.2d at 163; T.W. v City of New York, 286 A.D.2d 243, 345 [1st Dept 2001] ["An employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee"]). An employer is under no duty to inquire into the criminal past of a prospective employee (Deborah v Snapple, Inc., 286 A.D.2d 204, 205 [1st Dept 2001] ["Liability will attach on such a claim only when the employer knew or should have known of the employee's violent propensities"]; see also Amendment v Macy's N.Y., 19 A.D.2d 702, 702 [1st Dept 1963]; McCain v Darrick Group LLC, 84 A.D.3d 591, 591-92 [1st Dept 2011] ["We reject plaintiffs contention that a background check of the security guard would have revealed his propensity to engage in the subject conduct"]; Day v J. Nachos Hellenic Serv. Sta., 2 A.D.3d 482, 482 [2d Dept 2003]; Ehrlich v Guaranty Trust Co. of New York, 194 AD 658, 664 [1st Dept 1921] ["An employer is not bound to assume that an employee, whom he has no reason to suspect of dishonesty, will or may commit a crime. On the contrary, the presumption is that he will do right and not wrong"]).

The Court finds that defendants have met their prima facile burden of establishing entitlement to summary judgment dismissing the complaint alleging negligent hiring, supervision, and retention by presenting evidence that they had no specific knowledge or notice of Vasquez's propensity for larceny (see White, 35 A.D.3d at 244; Staffard v North Rockland Cent School Dist, 23 A.D.3d 342, 343-44 [2d Dept 2005]).[3] Defendants assert that they had not encountered a similar incident or "bad act" by any employee, including Vasquez, before the incident giving rise to this case, and therefore were not put on notice of Vasquez's, or any other employee's, propensity for larceny (see Aff. in Support at 25, 28). Current property manager/account executive Ellen Marrone and property manager/account executive at the time of the incident, Earl Kirn (Kirn), testified that they knew of no complaints concerning Vasquez by the building's tenants or shareholders and Vasquez received no warnings or reprimands during the years before the incident that they could recall (see Marrone EBT, p. 33; EBT of Earl Kirn (Kirn EBT), exhibit D, p. 35-36; Kirn Aff. at 8). Kirn, in his affidavit, states that "prior to Ms. Bernstein's complaint in June 2008, I received no reports of any burglaries, attempted burglaries, unauthorized intrusions, or any bad acts by building staff, which would indicate a propensity for larcenous acts" (Kirn Aff. at 6).

In the instant case, there is no proof on the record demonstrating that defendants were aware of any prior conduct on the part of Vasquez that would put them on notice of the foresee ability of such incidents as plaintiff alleges here. Therefore, defendants had no obligation to conduct an investigation into Vasquez's background (see Jackson, 69 A.D.3d at 801-02; Deborah, 286 A.D.2d at 205; Amendment, 19 A.D.2d at 702; cf. T.W., 286 A.D.2d at 245 ["A jury could reasonably conclude that [defendant] had a duty to conduct an investigation of [employee's] background given its actual knowledge that he had a conviction"] [emphasis added]). As an account executive, Ellen Marrone (Marrone) would interview potential applicants for building positions and testified that she only asks about a potential employee's criminal history if there is a "red flag" (see Marrone EBT, p. 23). It became the industry standard to do a credit check or background check in 2005, however Vasquez was hired in 2002 (see Marrone EBT/p. 21, 50).

In opposition, plaintiff failed to submit evidence raising a triable issue of fact as to whether defendants had notice of conduct by Vasquez demonstrating a propensity for larceny (see Taylor v United Parcel Sen/., Inc., 72 A.D.3d 573, 573-74 [1st Dept 2010]; White, 35 A.D.3d at 244; Gomez, 304 A.D.2d at 375; cf. G.G., 50 A.D.3d at 472 ["plaintiff raised a triable issue of fact based on the testimony of a nursing aide who had previously reported that the [employee at issue] had offered a patient medication in exchange for sex"]). Plaintiff argues, inter alia, that defendants were negligent with regards to employing Vasquez because they did not investigate his into his background or references (see Aff. in Opposition at 35). Plaintiff asserts that Vasquez had a prior criminal history consisting of three convictions at the time he was hired (see id. at 13) and that defendants would have acquired this knowledge if they exercised "reasonable care and prudence" before hiring Vasquez (see id. at 42). However, plaintiff fails to put forth any evidence that would suggest defendants had actual knowledge or were aware of prior conduct that would put them on notice and require them to investigate Vasquez further before and during his employment (see Deborah, 286 A.D.2d at 205 ["An employer is under no duty to inquire as to whether an employee had been convicted of crimes in the past"]; Kenneth R., 229 A.D.2d at 163 ["There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee"]). Moreover, plaintiff fails to elaborate on and/or attach documents pertaining to Vasquez's criminal history to support the position that an employer exercising reasonable care would not hire Vasquez for this position if made aware of this information and that his larcenous conduct would now be foreseeable in light of this information (see Aff. in Opposition at 29, 30). Thus, defendants' motion for summary judgment is granted.


Accordingly it is,

ORDERED that defendants 255 West 84th Owners Corp. and Midboro Management, Inc.'s motion for summary judgment is granted and the complaint is dismissed in its entirety with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further,

ORDERED that the defendants are directed to serve a copy of this Order with Notice of Entry upon the plaintiff and upon the Clerk of the Court who is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

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