Opinion
No. 016832/07.
2010-05-13
Licinio MARRERO, Plaintiff, v. ATLANTIC EXPRESS TRANSPORTATION CORP., Atlantic Express Transportation Group, Inc., and “John Doe” (which name is fictitious as it is unknown to plaintiff). Lorenzo White and Amboy Bus Co., Inc., Defndants.
Daniel P. Buttafuoco & Associates, Woodbury, for Plaintiff. Silverman Sclar Shin & Byrne, PLLC by: Anne Catapano, Esq., New York City, for Defendants.
Daniel P. Buttafuoco & Associates, Woodbury, for Plaintiff. Silverman Sclar Shin & Byrne, PLLC by: Anne Catapano, Esq., New York City, for Defendants.
DANIEL PALMIERI, J.
The motion of the Atlantic Express and Amboy defendants (the Bus Companies) for summary judgment, pursuant to CPLR § 3212 is granted and the action is dismissed as to them.
Plaintiff and defendant White were school bus drivers who regularly picked up and deposited children at the same school in Queens County. Plaintiff alleges that on the day of the incident, September 2006, White assaulted plaintiff because White blamed plaintiff for having reported plaintiff for jumping the bus line on a previous occasion. This action against White and defendant Bus Companies ensued. Plaintiff claims that the Bus Companies were White's employers and should be responsible vicariously for White's assault on plaintiff and that the Bus companies are also responsible to him on the theories of negligent hiring and supervision.
The Bus Companies now move for summary judgment and the two Atlantic Express defendants also move on the grounds that White was employed by defendant Amboy Bus, a subsidiary of Atlantic Express, and not by them.
It is not necessary for the Court to make a determination as to White's employer because this motion is being granted as to the Bus Companies on the grounds that they were not vicariously liable for White's conduct and not negligent in the hiring, retention or supervision of defendant White.
White was hired in 2004, the incident took place in September 2006. A representative of the Bus Companies, the Terminal Manager, testified that there had never been any prior complaints about White, nor has he ever observed any aggressive behavior. When White was employed, a background check was performed by the New York City Department of Education (N.Y.CDOE) and he was required to produce a driver's license to drive a school bus, a driving record, a social security card and proof of eligibility to work. He is then interviewed and given drug, road and written tests. Drivers are required to pass a physical examination and submit letters of reference. Applicants are sent to NYCDOE for fingerprinting and a background check. Fingerprints are cleared through the New York State and FBI systems. After a second drug test, a certification by NYCDOE is required as the final step.
White's employment records contain numerous records of tests conducted during the years 2005 and 2006, after White had been hired, including written and driving examinations, review of driver's license records and physical examinations, some as recent as July 2006. Although the complaint alludes to inadequate training, the documentary and other evidence demonstrates an ongoing pattern of post hiring training and testing.
White's background discloses valid licensing, two accidents in 2005 of which one was for property damage, no traffic infraction. He also had pre-existing employment when he applied for the bus driver position.
In opposition, plaintiff argues that because White was required to adhere to a tight schedule and was under pressure to do so, it was foreseeable by his employer that he would cut the bus lane, be the recipient of complaints and thus commit his tortious conduct.
In 1999 White had been convicted of disorderly conduct which is a violation, however, this conviction was not disclosed to the employer and there are no specifics as to the nature of the underlying conduct that led to the violation. His commercial driver's license had been once suspended for reasons which White refused to disclose. There is no evidence that either of these two events were revealed in the pre-employment background checks. There is no mention that any complaints were ever made to or about Mr. White about being late for pick up at the site of the altercation.
The motion is supported by (i) depositions of plaintiff, White, representatives of the Bus Company (ii) affidavits (iii) Bus Company records. The motion is opposed by an (i) affirmation of plaintiff's attorney, (ii) the deposition of non-party witnesses and (iii) resort to the attachments to the Bus Companies motion.
It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395 (1957); Bhatti v. Roche, 140 A.D.2d 660 (2d Dept.1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 A.D.2d 797 (3d Dept.1992); Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168 (3d Dept.1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief Brooks v. Blue Cross of Northeastern New York, Inc., 190 A.D.2d 894 (3d Dept.1993).
Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212[b] ), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v. Farrell Lines, 64 N.Y.2d 1092 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985).
If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212(b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 A.D.2d 513 (2d Dept.1988). Conclusory allegations are insufficient ( Zuckerman v. City of New York, supra ), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380 (2d Dept.1994); Toth v. Carver Street Associates, 191 A.D.2d 631 (2d Dept.1993). If a party defends a motion by resort to CPLR 3212(f), that is, the party has a defense sufficient to defeat the motion but that the facts cannot yet be stated, that party must be able to make some showing that such facts do in fact exist; mere hope that discovery may reveal those facts is insufficient. Companion Life Ins. Co. v. All State Abstract Co., 35 AD3d 519 (2d Dept.2006). Nor can mere speculation serve to defeat the motion. Pluhar v. Town of Southhampton, 29 AD3d 975 (2d Dept.2006); Ciccone v. Bedford Cent. School Dist., 21 AD3d 437 (2d Dept.2005).
However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385 (2d Dept.2003); Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 (2d Dept.1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 A.D.2d 553 (2d Dept.1992); Barr v. County of Albany, 50 N.Y.2d 247, 254 (1980); James v. Albank, 307 A.D.2d 1024 (2d Dept.2003); Heller v. Hicks Nurseries, Inc., 198 A.D.2d 330 (2d Dept.1993).
The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v. Wild Oaks Holding, Inc., 196 A.D.2d 812 (2d Dept.1993); Barclays Bank of N.Y. v. Sokol, 128 A.D.2d 492 (2d Dept.1987), such as when the affidavit in opposition clearly contradicts earlier deposition testimony. Central Irrigation Supply v. Putnam Country Club Assocs., LLC, 27 AD3d 684 (2d Dept.2006).
The Bus Companies have made a prima facie showing of entitlement to relief on the issue of vicarious liability for the conduct of their employee White.
“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 AD3d 893, 896;see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933). Significantly, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business ( see Carnegie v. J.P. Phillips, Inc., 28 AD3d 599, 600;Schuhmann v. McBride, 23 AD3d 542, 543;Lombardo v. Mastec North American Inc., 2009 WL 4855749 (N.Y.A.D. 2 Dept.).” See also Shapiro v. Good Samaritan Regional Hosp. 55 AD3d 821 (2d Dept .2008).
“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 employer, or if his act may be reasonably said to be necessary or incidental to such employment ( see Oliva v. City of New York, 297 A.D.2d 789, 748 N.Y.S.2d 164;Smith v. Midwood Realty Assoc., 289 A.D.2d 391, 734 N.Y.S.2d 237;Felberbaum v. Weinberger, 54 AD3d 717 (2 Dept.2008).”
It can be said as a matter of law that the conduct of White was outside the scope of his employment as a bus operator. McArthur v.. J.M. Main Street, Inc., 46 AD3d 639 (2d Dept.2007).
An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his employment. Riviello v. Waldron, 47 N.Y.2d 297 (1979); Brancato v. Dee & Dee Purchasing, 296 A.D.2d 518 (2d Dept.2002). Although generally speaking, these are factual determinations to be made by a jury where, as here, a court can determine, as a matter of law, that the actor was motivated by private concerns that were wholly unrelated to his duties as an employee summary judgment is appropriate. Lombardo v. Mastec North America, Inc., 68 AD3d 935 (2d Dept.2009); See, Vega v. Northland Marketing Group, 289 A.D.2d 565 (2d Dept.2001); Carnegie v. J.P. Phillips, Inc., supra; cf Danko v. Forest Lake Camp., Inc., 63 AD3d 1099 (2d Dept.2009).
The complaints and conduct of White, although arguably related to his bus driver status, were personal as between he and the plaintiff, and thus his conduct in furtherance of his issues with plaintiff were personal and in furtherance of his own best interest. Doe v. Rohan, 17 AD3d 509, 512 (2d Dept.2005).
The claims of negligent training, improper security, negligent hiring and supervision are directed at the Bus Companies as the employer of White.
As to the claim of negligence against the Bus Companies in connection with the hiring, supervision and retention of White, to the extent that the claim is based on White's intentional conduct, there is no evidence that his employer knew or should have known that he had a propensity for violence, Carnegie v. J.P. Phillips, Inc., supra at 600.
“A cause of action for negligent hiring is based upon the defendant's status as an employer. Such a claim requires the employer to answer for a tort committed by an employee against a third person “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” (Kirkman v. Astoria Gen. Hosp., supra at 403, 611 N.Y.S.2d 615;see Carnegie v. J.P. Phillips, 28 AD3d 599, 600, 815 N.Y.S.2d 107;Bellere v. Gerics, 304 A.D.2d 687, 759 N.Y.S.2d 755 657 N.Y.S.2d 808; Mataxas v. North Shore Univ. Hosp., supra ). “The employer's negligence lies in his having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of his employees” (Detone v. Bullit Courier Serv., 140 A.D.2d 278, 279, 528 N.Y.S.2d 575). Thus, a negligent hiring claim does not require the existence of any particular relationship between the plaintiff and the defendant employer ( see Rodriguez v. United Transp. Co., 246 A.D.2d 178, 180, 677 N.Y.S.2d 130). Rather the defendant is responsible for the harm its negligently hired employee causes to any third party.” Sandra M. v. St. Luke's Roosevelt Hospital Center, 33 AD3d 875 (2d Dept.2006).
There is no evidence that the Bus Companies knew or should have known that White had a propensity for violent conduct, a vital element to the causes of action based on negligent hiring, retention and supervision. State Farm Ins. Co., v. Central Parking Systems Inc., 18 AD3d 859 (2d Dept.2005) and Doe v. Rohan, supra, 512.
The duty to investigate a prospective employee, or to “institute specific procedures for hiring employees,” is triggered only when the employer “knows of facts that would lead a reasonably prudent person to investigate the prospective employee.” Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 163, 654 N.Y.S.2d 791,cert. Denied522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316;see 466 Carnegie v. J.P. Phillips, supra at 600; T.W. v. City of New York, 286 A.D.2d 243, 245, 729 N.Y.S.2d 96. The record in this case does not disclose any evidence that the employer had any reason to request any further employment history or background check for White or that such investigation would have yielded any facts that would have altered its hiring decision. See Sandra M. v. St. Luke's Roosevelt Hospital Center, supra. The Bus Companies therefore have made a prima facie showing of entitlement to relief on the claim against them of negligent hiring, supervision and retention.
The plaintiff has failed to raise any issues of fact that the Bus Companies were negligent in the hiring, supervision, training and retention of the driver. There is simply nothing to suggest that intentional conduct, (if there be any) of the driver was foreseeable based on any facts that have been disclosed, Doe v. Rohan, supra, and there were no prior complaints or conduct to serve as a signal of future improper conduct. Day v. Vlachos Hellenic Service Station, 2 AD3d 482 (2d Dept.2008); Ray v. County of Delaware, 239 A.D.2d 755 (3d Dept.1997).
There is evidence of only one prior occasion five years prior, before White became employed that he pleaded guilty to the violation of disorderly conduct and his license had once been suspended. However, there are no facts disclosed as to the conduct that led to these background deficiencies hence it is speculative to consider them to be a warning or a danger sign of future behavior. Finally, the contention that White's tight schedule was the cause of the assault requires too many inferences based upon speculation to be considered as a causative factor.
The motion of the Bus Companies is granted and the action is dismissed as to them.
This shall constitute the Decision and Order of this Court.