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Shi v. McDonald's Corp.

Supreme Court of New York, Second Department

October 2, 2013

Gui Ying Shi, respondent,
v.
McDonald's Corporation, et al., defendants, 5121 5th Avenue, LLC, appellant. Index No. 6964/10

Kenney Shelton Liptak Nowak LLP, New York, N.Y. (Michael L. Stonberg of counsel), for appellant and defendants.

Caruso Glynn, LLC, Fresh Meadows, N.Y. (Lawrence C. Glynn of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant 5121 5th Avenue, LLC, appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 6, 2012, as granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the seventh and eighth causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the seventh and eighth causes of action is denied.

The defendant Marisol Acosta, an employee of a McDonald's restaurant owned by the defendant franchisee 5121 5th Avenue, LLC (hereinafter 5121), allegedly assaulted the plaintiff, a customer at the restaurant. The alleged assault occurred after Acosta and the plaintiff had a heated exchange over whether the plaintiff had ordered a cheeseburger rather than a hamburger for her son. The general manager of 5121 was in his office when the dispute began near the counter. Upon being informed that a problem had arisen and before the alleged assault occurred, the manager went to the counter to try to address the problem.

The plaintiff commenced this action to recover damages for her personal injuries against, among others, 5121, alleging that 5121 was vicariously liable for Acosta's tortious conduct and that it negligently hired and supervised Acosta (seventh and eighth causes of action). The Supreme Court granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the seventh and eighth causes of action.

"Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment" (Fernandez v Rustic Inn, Inc., 60 A.D.3d 893, 896; see Riviello v Waldron, 47 N.Y.2d 297, 302; Quiroz v Zottola, 96 A.D.3d 1035, 1037; Fenster v Ellis, 71 A.D.3d 1079, 1080; Quadrozzi v Norcem, Inc., 125 A.D.2d 559, 561). "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment" (Davis v Larhette, 39 A.D.3d 693, 694; see Judith M. v Sisters of Charity Hosp., 93 N.Y.2d 932, 933; Pinto v Tenenbaum, 105 A.D.3d 930, 931; Holmes v Gary Goldberg & Co., Inc., 40 A.D.3d 1033, 1034). An employer, however, cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident (see Pinto v Tenenbaum, 105 A.D.3d at 931; Horvath v L & B Gardens, Inc., 89 A.D.3d 803, 803; Yildiz v PJ Food Serv., Inc., 82 A.D.3d 971, 972; Fernandez v Rustic Inn, Inc., 60 A.D.3d at 896). "Similarly, the employer is not vicariously liable where the employee's tortious conduct could not have been reasonably expected by the employer" (Yildiz v PJ Food Serv., Inc., 82 A.D.3d at 972; see Carnegie v J.P. Phillips, Inc., 28 A.D.3d 599, 600; Oliva v City of New York, 297 A.D.2d 789, 791). Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury (see Riviello v Waldron, 47 N.Y.2d at 303; Piquette v City of New York, 4 A.D.3d 402, 403).

Here, the plaintiff failed to establish, prima facie, that Acosta was acting within the scope of her employment with 5121 when she allegedly assaulted the plaintiff (see Evans v City of Mount Vernon, 92 A.D.3d 829; Carnegie v J.P. Phillips, Inc., 28 A.D.3d 599; State Farm Ins. Co. v Central Parking Sys., Inc., 18 A.D.3d 859), and that Acosta's alleged conduct was reasonably foreseeable by 5121 (see Yildiz v PJ Food Serv., Inc., 82 A.D.3d at 972; Carnegie v J.P. Phillips, Inc., 28 A.D.3d at 600).

Further, the plaintiff did not establish, prima facie, that 5121 was negligent in hiring or supervising Acosta. The plaintiff failed to submit evidence sufficient to show that 5121 knew or should have known of Acosta's alleged propensity for the conduct which resulted in the plaintiff's alleged injury (see Evans v City of Mount Vernon, 92 A.D.3d at 830; Yildiz v PJ Food Serv., Inc., 82 A.D.3d at 972; Carnegie v J.P. Phillips, Inc., 28 A.D.3d at 600; State Farm Ins. Co. v Central Parking Sys., Inc., 18 A.D.3d at 860).

In light of our determination, we need not consider the sufficiency of 5121's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 852).

Accordingly, the Supreme Court should have denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the seventh and eighth causes of action.

DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.


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