Opinion
0921-11.
Decided July 7, 2011.
Kenneth Martin, Plaintiff pro se.
Plaintiff brought this small claims proceeding to recover one thousand one hundred eighty dollars ($1,180.00) from defendant alleging the defendant gave his state tax refund check to someone other than plaintiff. It is uncontested that defendant prepared and filed the plaintiff's federal and state tax returns. The plaintiff obtained his refund checks from his federal return from the defendant, however, alleges he never received the state return. The refund checks came through defendant because the plaintiff arranged a refund loan through defendant.
The refund check was from Republic Bank and was cashed at a check cashing facility in Mount Vernon. The front and back of the check were produced and the signature looks exactly like prior specimens of plaintiff's writing. Defendant produced a New York State Driver's license from plaintiff claiming it was used as identification not only when the check was picked up at defendant's establishment but also when cashed.
Pursuant to the doctrine of respondeat superior, liability for an employee's negligence may be imputed to the employer when the tortious act was committed "in furtherance of the employer's business and within the scope of employment' ( N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 (2002). 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' . . ." ( Garner Hardon v Doggie Love LLC, et al, 2011 NY Slip Op 30072U (Supreme Ct. Queens Co. 2011). It is clear to this Court that the act as alleged occurred during the regular scope of employment.
In order for plaintiff to succeed in holding defendant liable for the alleged criminal acts of another, he must demonstrate that the defendant's employee acted negligently. In Motors Insurance Corp. v American Garages, Inc., 94 Misc 2d 338 (Civ Ct. New York Co. 1978), the officer of the insured and the garagekeeper entered into a storage contract. The terms provided for a parking space for the insured's vehicle in an indoor parking garage. Some time thereafter, the vehicle was stolen from the garage. The trial court found that defendant garagekeeper was negligent in leaving a set of ignition keys in clear and open view on a pegboard in the unlocked and unattended garage office. In rendering its decision, the court stated:
Ordinarily loss by theft constitutes a good defense. However, it will not stand in the face of proof that the negligence of an employee of the defendant contributed to the theft and made it possible (citations omitted). In a situation where in the ordinary course of events an occurrence would not have taken place but for want of proper care, and testimony is presented setting forth acts which constitute lack of proper care then the responsibility for the loss incurred should be on the person responsible for such lack of care ( Osborne v Cline, 263 NY 434). . . . The independent act of a thief does not exonerate the defendant from liability when it was negligent in failing to take adequate precautions and safeguards to protect the items under its control (citations omitted).
The Court finds that the plaintiff in the instant matter failed to establish any negligence on the part of defendant's employee(s). In fact the evidence produced, namely the cashed refund check, demonstrated that plaintiff was the person that signed and cashed the check, not a third party. Defendant did not produce any evidence to rebut this proof.
Accordingly, the case is dismissed.
This above complies with the Court's statutory charge to do substantial justice between the parties.
This constitutes the Decision and Order of this Court.