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D'Auvergne v. Dis Is We Thing, Inc.

Supreme Court of New York, Second Department

October 23, 2013

Renoir D'Auvergne, respondent,
v.
Dis Is We Thing, Inc., et al., appellants, et al., defendants. Index No. 3636/09

Drummond & Squillace, PPLC, Jamaica, N.Y. (Joann Squillace of counsel), for appellants.

Robert J. Renna, P.C., Brooklyn, N.Y. (Andreas Geroulakis of counsel), for respondent.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Dis Is We Thing, Inc., Shh Secrets, doing business as Secrets, Rajendra Persaud, McLean Persaud, and Rajesh Persaud appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated March 8, 2012, as denied those branches of their motion which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action of the second amended complaint insofar as asserted against them, and granted the plaintiff's cross motion for leave to serve a third amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In a second amended complaint, the plaintiff averred that he was assaulted at a Brooklyn nightclub, which was allegedly owned and operated by the defendants Dis Is We Thing, Inc., Shh Secrets, doing business as Secrets, Rajendra Persaud, McLean Persaud, and Rajesh Persaud (hereinafter collectively the Persaud defendants). The plaintiff served a verified bill of particulars, in which he averred that he was assaulted by an intoxicated patron and a security guard, and that the Persaud defendants failed to provide assistance or necessary security. The Persaud defendants moved pursuant to CPLR 3211(a) to dismiss the second amended complaint based on documentary evidence, specifically the plaintiff's verified bill of particulars, for failure to state a cause of action, and based on lack of personal jurisdiction over Rajendra Persaud, McLean Persaud, and Rajesh Persaud (hereinafter collectively the individual Persaud defendants). The plaintiff cross-moved for leave to serve a third amended complaint.

The Supreme Court properly determined that the Persaud defendants were not entitled to dismissal pursuant to CPLR 3211(a)(1), as the verified bill of particulars did not constitute documentary evidence within the meaning of this section (see Summer v Severance, 85 A.D.3d 1011, 1012; Treeline 1 OCR, LLC, v Nassau County Indus. Dev. Agency, 82 A.D.3d 748; Fontanetta v John Doe I., 73 A.D.3d 78, 86; IMO Indus. v Anderson Kill & Olick, 267 A.D.2d 10).

The Supreme Court also properly determined that the Persaud defendants were not entitled to dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The defendants Dis Is We Thing, Inc., and Shh Secrets, doing business as Secrets, may be liable for an intentional tort committed by an employee while acting within the scope of employment (see Riviello v Waldron, 47 N.Y.2d 297, 302; Cheng Feng Fong v New York City Tr. Auth., 83 A.D.3d 642; Helbig v City of New York, 212 A.D.2d 506; cf. Vega v Northland Mktg. Corp., 289 A.D.2d 565). In addition, the individual Persaud defendants may be liable to third persons injured by an intentional tort committed by or for the benefit of the corporate defendants (see Bridges v Wyandanch Community Dev. Corp., 66 A.D.3d 938, 940; Hamlet at Willow Cr. Dev. Co., LLC, v Northeast Land Dev. Corp., 64 A.D.3d 85, 116; Aguirre v Paul, 54 A.D.3d 302, 304; Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 A.D.3d 328, 329-330; Clark v Pine Hill Homes, 112 A.D.2d 755).

By failing to serve and file a pre-answer motion to dismiss for lack of personal jurisdiction, and thereafter failing to raise lack of personal jurisdiction as an affirmative defense in any of their answers, the individual Persaud defendants waived any objections they may have had to the court's personal jurisdiction over them (see CPLR 3211[e]; Peterson v JJ Real Estate, Inc., 82 A.D.3d 859, 860; Hatch v Tu Thi Tran, 170 A.D.2d 649; Osserman v Osserman , 92 A.D.2d 932, 934).

Finally, the granting of the plaintiff's cross motion for leave to serve a third amended complaint to add a cause of action alleging unlawful imprisonment was a provident exercise of the court's discretion (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959). The proposed third amended complaint was neither palpably insufficient nor patently devoid of merit, and the Persaud defendants did not demonstrate any prejudice that would have precluded the granting of the plaintiff's cross motion (see Leibel v Flynn Hill El. Co., 25 A.D.3d 768).

MASTRO, J.P., ANGIOLILLO, LEVENTHAL and CHAMBERS, JJ., concur.


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