Opinion
2021–01648 Index No. 702980/20
08-16-2023
Ashakii HUTCHINSON–HEADLEY, appellant, v. HP ARVERNE PRESERVATION HOUSING COMPANY, INC., et al., respondents, et al., defendant.
John L. O'Kelly, East Williston, NY, for appellant. Hickey Smith Dodd, LLP, New York, NY (Joseph H. Green of counsel), for respondents.
John L. O'Kelly, East Williston, NY, for appellant.
Hickey Smith Dodd, LLP, New York, NY (Joseph H. Green of counsel), for respondents.
MARK C. DILLON, J.P., ROBERT J. MILLER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated November 4, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendants HP Arverne Preservation Housing Company, Inc., Arverne Preservation, LLC, L & M 201 Developers, LLC, and C & C Apartment Management, LLC, which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for negligent hiring, retention, and supervision insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants HP Arverne Preservation Housing Company, Inc., Arverne Preservation, LLC, L & M 201 Developers, LLC, and C & C Apartment Management, LLC, which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for negligent hiring, retention, and supervision insofar as asserted against them is denied.
On December 20, 2018, the plaintiff, then a resident of an apartment building in Queens, allegedly was injured by the building's security guards during an incident in the building's courtyard. In February 2020, the plaintiff commenced this action against, among others, the defendants HP Arverne Preservation Housing Company, Inc., Arverne Preservation, LLC, L & M 201 Developers, LLC, and C & C Apartment Management, LLC (hereinafter collectively the defendants), which allegedly owned and/or managed the building. In an amended complaint, the plaintiff asserted a cause of action to recover damages for negligent hiring, retention, and supervision. Thereafter, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. In an order dated November 4, 2020, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for negligent hiring, retention, and supervision insofar as asserted against them. The plaintiff appeals.
"In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Langley v. Melville Fire Dist., 213 A.D.3d 748, 750, 183 N.Y.S.3d 516 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "[T]he court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true" ( Benjamin v. Yeroushalmi, 178 A.D.3d 650, 653, 115 N.Y.S.3d 60 ).
" ‘To hold a party liable under theories of negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury’ " ( Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 650, 157 N.Y.S.3d 478, quoting Bellere v. Gerics, 304 A.D.2d 687, 688, 759 N.Y.S.2d 105 ). "Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity" ( Belcastro v. Roman Catholic Diocese of Brooklyn, N.Y., 213 A.D.3d 800, 801, 184 N.Y.S.3d 367 ). Initially, the Supreme Court should not have concluded that the defendants were entitled to dismissal of the cause of action alleging negligent hiring, retention, and supervision insofar as asserted against them on the ground that the security guards were acting within the scope of their employment during the subject incident, as the parties never litigated that issue (see Bank of Am., N.A. v. City of New York Dept. of Hous. Preserv. & Dev., 211 A.D.3d 661, 664, 181 N.Y.S.3d 110 ; Wells Fargo Bank v. Aucapina, 193 A.D.3d 1106, 1108, 147 N.Y.S.3d 608 ; Patel v. Sharma, 168 A.D.3d 966, 967, 90 N.Y.S.3d 538 ). Furthermore, the amended complaint, as amplified by affidavits submitted by the plaintiff in opposition to the defendants’ motion (see Barry's Auto Body of NY, LLC v. Allstate Fire & Cas. Ins. Co., 190 A.D.3d 807, 810, 140 N.Y.S.3d 246 ; Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d 610, 611, 106 N.Y.S.3d 345 ), sufficiently alleged that the defendants knew or should have known of the security guards’ propensity for the conduct which caused the alleged injury (see Belcastro v. Roman Catholic Diocese of Brooklyn, N.Y., 213 A.D.3d at 802, 184 N.Y.S.3d 367 ; Novak v. Sisters of Heart of Mary, 210 A.D.3d 1104, 1105, 180 N.Y.S.3d 187 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 164, 654 N.Y.S.2d 791 ). The affidavits submitted by the plaintiff averred, inter alia, that "[h]undreds of tenants" had previously complained that the security guards were, among other things, "physically abusive with tenants," and that various tenants had raised complaints that the security guards had "put hands on" people in the building.
The plaintiff's remaining contentions either need not be reached in light of our determination or are without merit.
Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for negligent hiring, retention, and supervision insofar as asserted against them.
DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur.