Opinion
105416/2010.
October 6, 2011.
Edward Friedman, Esq., Brooklyn, NY, For Plaintiff.
Kavita Bhatt, Esq., Richard Schoolman, Esq., Office of the General Counsel, New York City Transit Authority, Brooklyn, NY, For Defendant New York City Transit Authority.
In this action, plaintiff, who was a passenger in a subway train, alleges that the train conductor falsely reported to police that plaintiff had assaulted the conductor, which resulted in plaintiff's arrest. According to plaintiff, he was charged with one count of Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) and one count of Assault in the Second Degree (Penal Law § 120.05), but he was later acquitted of all criminal charges after a jury trial.
BACKGROUND
Plaintiff's notice of claim dated January 27, 2006 states, in relevant part:
"On December 5, 2005, at approximately 10:45 P.M., claimant [plaintiff] was a passenger on the MTA-NYC Transit Subway E' Train traveling from Manhattan to Queens. While on the train, [claimant] observed a large man physically threatening a woman. Claimant reported what he observed to a MTA NYC Transit Subway conductor (Conductor Jim Doe') who repeated refused to remove the man from the train or call the police to obtain assistance. The man remained in the aforementioned subway car and continued to threaten the woman. Fearing for the woman's safety and not knowing what else to do, claimant pulled the subway emergency cord. Conductor Jim Doe proceeded to call the City of New York Police and falsely tell Police Officer Anthony Rosales and, possibly others, that claimant had punched and kicked him. As a result of Conductor Jim Doe's complete fabrication and lie that claimant assaulted him, Officer Rosales arrested claimant and charged him with Assault in the Second Degree and Obstruction of Government Administration in the Second Degree . . . Instead, Rosales, based on Conductor Doe's lies and with Conductor Doe's assistance, caused claimant to be falsely arrested and maliciously prosecuted for crimes that Rosales and/or Conductor Jim Doe had no basis at all to believe that the claimant had committed."
(Bhatt Affirm. Ex 4.) "Conduct Jim Doe" was later identified as Charles Johnson.
In December 2006, plaintiff commenced an action in the United States District Court for the Southern District of New York against the New York City Transit Authority (NYCTA), Johnson, the City of New York, and Rosales, Rodriguez v New York City Tr. Auth., US Dist Ct, SD NY, 06 Civ 137642 (RJS). ( See Bhatt Affirm., Ex 1 [Amended Verified Complaint] ¶ 27.) The federal complaint asserted claims against Johnson and Rosales for false arrest and malicious prosecution under New York law and violations of 42 USC § 1983, and claims against NYCTA for negligent hiring, supervision, and retention under New York law. ( See Bhatt Affirm., Ex 3 [ Rodriguez v New York City Tr. Auth., 2009 WL 3817298, *2, 2009 US Dist LEXIS 106464, *6-7].)
By decision dated November 10, 2009, District Judge Richard J. Sullivan granted the defendants' motions for summary judgment dismissing plaintiff's federal claims against Johnson and Rosales. The decision states, in relevant part:
"The parties agree that at some point, Johnson walked to the train car where the alleged harassment was taking place, and that Rodriguez directed Johnson's attention to a man standing near the end of the car. The parties disagree substantially about what happened next, and the record contains evidence supporting each version.
Johnson testified at his deposition that, unhappy with his [Johnson's] response to the allegations of harassment, Rodriguez began to verbally and physically abuse him . . . Johnson testified that Rodriguez then spat in his face and punched him in the face and chest. As Johnson sought to leave the train, Rodriguez allegedly threw him against the outside of the train.
Rodriguez, in contrast, maintains that Johnson's account is entirely false. He testified at his deposition that he did not have any physical interaction with Mr. Johnson' and that he never touched Mr. Johnson.' As corroboration, Rodriguez points to the testimony of Kathleen Lightbourne, a passenger on the train, who testified that Rodriguez didn't do anything wrong.'
The parties agree that at some point after traveling to the car where the alleged harassment took place, Johnson returned to the conductor's cab. The Transit Defendants claim that Johnson then contacted the NYCTA Rapid Transit Operations Control Center, which contacted the NYPD. Two New York City police officers arrived at the scene shortly thereafter, including Defendant Rosales.
At this point, the parties' versions of the facts again begin to diverge. Johnson testified in his deposition that he told the police that he had been assaulted by Rodriguez. Rosales similarly testified that Johnson told him that he had been assaulted. Rosales further testified that, after speaking to Johnson, he spoke with two other witnesses, Alexandra Sepulveda and Lionell Harrington, who confirmed that they saw Rodriguez assault Johnson.
Plaintiff, in contrast, maintains that Johnson did not speak with Sepulveda and Harrington before arresting Rodriguez, and points to portions of Rosales's deposition and certain notations in his memo book as proof that Rosales arrested Johnson within a minute of arriving at the station."
( Rodriguez, 2009 WL 3817298, *1-2, 2009 US Dist LEXIS 106464, *3-5.)
Judge Sullivan dismissed plaintiff's federal claims against Johnson, finding that "Johnson's misconduct, even if proven, was not action under color of state law." ( Rodriguez, 2009 WL 3817298, *6, 2009 US Dist LEXIS 106464, *17.) With respect to Rosales, Judge Sullivan ruled, "Resolving all factual disputes in Plaintiff['s] favor, the Court concludes that Rosales had, at the very least, arguable probable cause to arrest Plaintiff. Accordingly, Plaintiff['s] Section 1983 claim against Rodriguez [ sic] is dismissed." ( Rodriguez, 2009 WL 3817298, *7, 2009 US Dist LEXIS 106464, *21.) Judge Sullivan declined to exercise supplemental jurisdiction over plaintiff's state law claims.
On April 26, 2010, plaintiff commenced this action against NYCTA and Johnson. The amended verified complaint sets forth three causes of action for negligence, false arrest, and malicious prosecution. By letter dated June 24, 2010, NYCTA's counsel informed plaintiff's counsel that Charles Johnson passed away in October 2009. (Bhatt Affirm., Ex 2.)
NYCTA now moves for summary judgment dismissing the action.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."
( Alvarez v Prospect Hosp., 68 NY2d 320, 324[internal citations omitted].)
As NYCTA points out, it is undisputed that Johnson died prior to the commencement of this action. NYCTA argues that Johnson's death bars plaintiff from establishing that Johnson committed any tort or was guilty of any wrongdoing, which would be necessary to hold NYCTA vicariously liable for Johnson's alleged conduct. In addition, NYCTA argues that plaintiff's claims of negligent hiring/supervision/retention should be dismissed because plaintiff cannot point to any evidence that NYCTA knew or should have known that Johnson had an alleged propensity either to lie to a police officer to get someone arrested, or to generate a false claim for medical injury.
In opposition, plaintiff contends that he has a claim against NYCTA based on the doctrine of respondeat superior, because Johnson's alleged conduct occurred while he was on duty as a train conductor. Alternatively, plaintiff maintains that NYCTA had knowledge of Johnson's propensity to lie about incidents that occurred while he was working or about facts that involved his employment.
The action, as against Johnson, "from its inception was a nullity since it is well established that the dead cannot be sued." ( Marte v Graber , 58 AD3d 1 , 3 [1st Dept 2008].) Therefore, defendants' motion for summary judgment is granted to the extent that the action is dismissed as against Johnson.
However, it does not follow that Johnson's death automatically results in dismissal of the action as against NYCTA. Johnson cannot be a party to this action due to his death, but "[i]n an action against an employer based upon the doctrine of respondeat superior, the employee allegedly committing the tortious conduct is not a necessary party." ( Trivedi v Golub , 46 AD3d 542 , 543 [2d Dept 2007].) Therefore, the fact that an employee is not a party to the action does not bar a plaintiff from proving that the employee was negligent in an action against the employer under the doctrine of respondeat superior. NYCTA cites no authority for the proposition that Johnson's death, in itself, would bar plaintiff from establishing Johnson's alleged tortious conduct in an action solely against Johnson's employer.
Given that a cause of action alleging negligent hiring, supervision and retention similarly involves proving that the employee's conduct was tortious ( Primeau v Town of Amherst, 303 AD2d 1035, 1036 [4th Dept 2003]), this Court sees no reason to apply a different rule than that set forth in Trivedi, so as to hold that Johnson would be a necessary party in an action alleging negligent hiring, supervision, and retention against his employer.
A. Respondeat Superior
As a threshold matter, NYCTA points out that the words "respondeat superior" or "vicarious liability" are not mentioned in either the amended complaint or the notice of claim. To the extent that NYCTA argues that plaintiff may not seek recovery under the theory of respondeat superior because it was not pleaded, this argument is without merit.
A notice of claim does not have to set forth a legal theory of recovery. "The Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim, which must be filed within 90 days of the occurrence." ( DeLeonibus v Scognamillo, 183 AD2d 697, 698 [2d Dept 1992]; Simons v City of New York, 252 AD2d 451, 453 [1st Dept 1998]["Neither [General Municipal Law] § 50-i nor governing case law imposes such a requirement."]; see Matter of Felice v Eastport/South Manor Cent. School Dist. , 50 AD3d 138 , 148 [2d Dept 2008]["the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves"].)However, "a claimant may not raise in the complaint causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one." ( Moore v County of Rockland, 192 AD2d 1021, 1023 [3d Dept 1993]; see also Finke v City of Glen Cove , 55 AD3d 785 , 786 [2d Dept 2008].)
NYCTA does not argue that the legal theory of respondeat superior cannot be reasonably implied from the allegations in the notice of claim. ( See Dones v New York City Hous. Auth. , 81 AD3d 554 [1st Dept 2011].) As set forth above in the background section of this decision, the notice of claim alleges that the actions of Conductor Jim Doe (who was later identified as Johnson) occurred while the conductor was on duty. (Bhatt Affirm. Ex 4.) Plaintiff's theory of respondeat superior against NYCTA is not based on any allegations different from those in the notice of claim, and the legal theory is based on that allegation that Johnson's actions occurred while he was on duty. Thus, respondeat superior may be fairly implied from the original notice of claim.
Turning to NYCTA's other arguments,
"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. If, however, an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable.'"
( Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933[citations omitted].) The issue presented on this motion is whether Johnson was acting within the scope of his employment when he spoke to police officers.
"An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business.' Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment.'"
( Danner-Cantalino v City of New York , 85 AD3d 709 , 710 [2d Dept 2011][citations omitted]; Kawoya v Pet Pantry Warehouse, Inc. , 3 AD3d 368 , 369 [1st Dept 2004].) "The question of whether a particular act was within the scope of employment is ordinarily one for the jury because it is so heavily dependent on factual considerations." ( Petrescu v College Racquet Club, Inc. , 40 AD3d 947 , 949 [2d Dept 2007].) Whether an employee's acts fall within the scope of employment depends on
"The connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one the employer could reasonably have anticipated.'"
( Ramos v Jake Realty Co. , 21 AD3d 744 , 745 [1 Dept 2005], quoting Riviello v Waldron, 47 NY2d 297, 303.)
NYCTA points out that Judge Sullivan ruled in the federal action that Johnson was not acting under color of state law. (Mem. at 3 n 3.) However, "[w]hether actions are performed in the scope of employment' is a different inquiry as to whether those acts were made "under color of state law" for § 1983 purposes." ( Menghi v Hart, 745 F Supp 2d 89, 101 [ED NY 2010]; see Coles v City of Chicago, 361 F Supp 2d 740, 746 [ND Ill 2005]["The two elements of under color' and scope of employment' should not be confused."].) Because there is no identity of issue, Judge Sullivan's determination that Johnson was not acting under color of state law is not controlling in this action as to whether Johnson was acting within the scope of his employment. ( Fofana v 41 West 34th Street, LLC , 71 AD3d 445 , 448 [1st Dept 2010][a party asserting collateral estoppel must demonstrate, among other things, that there is an identity of issue that has necessarily decided in the prior action].)
NYCTA contends that Johnson did not act within the scope of employment because a false report of an on-the-job injury would not advance an employer's interest. NYCTA also maintains that Johnson "had no obligations, as an NYCTA employee, to speak to the police, that is, he could speak to the police, or not, but as a private citizen" (Mem. at 2), based on a declaration submitted in the federal action.
Under the circumstances presented, the Court cannot determine, as a matter of law, that Johnson's actions in speaking to police officers were not reasonably said to be necessary or incidental to his employment as a train conductor. Johnson testified at a deposition in the federal action that he called the control center and "told them that I had been assaulted and that I needed police assistance, because the police weren't there . . . I kept repeating that to them, that I needed police assistance." (Friedman Affirm., Ex D at 189.) NYCTA essentially maintains that a train conductor who called for police assistance while operating a train has no obligation, as an employee, to explain to responding police officers why they were called to the scene, notwithstanding that train operations were halted. The declaration of Leonard Akselrod, the Director of Labor Relations in NYCTA's Department of Subways, submitted in the federal action, does not set forth such a proposition. Rather, Akselrod's declaration states, in relevant part, "If a conductor believes he has been assaulted while working . . ., that conductor is not required by the Transit Authority to file a complaint with the police; the conductor may do so, or not as a private citizen. The conductor, however, would be expected to report the assault to the Transit Authority." (Bhatt Reply Affirm., Ex 14 [emphasis supplied].) Filing a formal complaint with the police is not the equivalent of speaking to police officers who reported to the scene of an alleged assault.
NYCTA's second argument is also unavailing. It argues that, because plaintiff ascribes a personal motive to Johnson for allegedly lying to police, then such a motive for lying would be for wholly personal reasons, and therefore outside the scope of Johnson's employment. This argument does not meet NYCTA's prima facie burden of establishing, as a matter of law, that Johnson acted "for wholly personal reasons." ( Danner-Cantalino, 85 AD3d at 710.) From a legal standpoint, that Johnson allegedly made false statements to the police does not, in itself, constitute actions that are outside the scope of employment as a matter of law. ( Cf. Loughry v Lincoln First Bank, N.A., 67 NY2d 369, 377["Consonant with risk allocation theories, liability for compensatory damages is properly placed on an innocent employer for slander by its agents committed in the course of employment"]; cf. Seymour v New York State Elec. Gas Corp., 215 AD2d 971 [3d Dept 1995][employer may be held vicariously liable for allegedly slanderous statement by employee if employee was acting within scope of his or her employment at time that statement was made]; cf. Murray v Watervliet City School Dist., 130 AD2d 830, 831 [3d Dept 1987][issue of fact as to whether a teacher's allegedly slanderous statement about a student's parents made during a classroom discussion was made in the scope of employment].) From a factual standpoint, this argument is not based on any facts that have been presented in the record; the argument presumes that Johnson lied to police officers, even though NYCTA submitted no evidence as to what Johnson told Rosales.
As Judge Sullivan pointed out in the federal action, there were conflicting eyewitness accounts of what transpired between plaintiff and Johnson. Notably, Alexandra Sepulveda's testimony contradicted plaintiff's account that he never touched Johnson. Sepulveda testified in the federal action that she was seated "probably two seats away from the conductor," and that she saw Rodriguez. (Friedman Affirm., Ex E. at 124-125.) Sepulveda described Rodriguez as "upset, extremely upset," and that Rodriguez was pushing the conductor "in his chest. Trying it [ sic] get him to do something about the situation; pushing him harder and harder, harder each time." ( Id. at 125-126.) Sepulveda also testified that Rodriguez "knocked him over the seat of the car" and that the conductor "was shoved pretty roughly. He was moved; shoved against the chair inside the car." ( Id. at 126-127.)
Although the record indicates that Johnson and Rodriguez testified to differing accounts, there is very little evidence before the Court that what Johnson actually told police officers was, in fact, untrue. Without such evidence, the Court cannot determine on this motion that what Johnson actually said to police officers was outside the scope of his employment. To rule on whether Johnson was acting in the scope of his employment based on the supposition that he lied to a police officer would be to render an advisory opinion.
That is not to say that merely speaking to police officers rendered Johnson liable for instigating a false arrest or malicious prosecution. With respect to respondeat superior, NYCTA's arguments on this motion were addressed solely to the issue of whether Johnson acted within the scope of his employment. "In order to hold a civilian defendant liable for false arrest, the plaintiff must establish that that defendant did not merely report a crime to the police or participate in the prosecution, but actively importuned the police to make an arrest without reasonable cause [to believe] in the plaintiff's culpability.'" ( Rivera v County of Nassau , 83 AD3d 1032 , 1033-1034 [2d Dept 2011][citation omitted]; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128 [1st Dept 1999]; Carrington v City of New York, 201 AD2d 525, 527 [2d Dept 1994]; Donnelly v Morace, 162 AD2d 247 [1st Dept 1990].)" The defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition.'" ( Oszustowicz v Admiral Ins. Brokerage Corp. , 49 AD3d 515 , 516 [2d Dept 2008][citations omitted].) With respect to malicious prosecution, the defendant must have "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." ( Du Chateau, 253 AD2d at 131 [citation omitted].) In addition, the existence of probable cause serves as a legal justification for the arrest and an affirmative defense to false arrest and malicious prosecution. ( Martinez v City of Schenectady, 97 NY2d 78, 85; Molina v City of New York , 28 AD3d 372 , 372 [1st Dept 2006]; see PJI 3:5, 3:50.)
The Court notes that Judge Sullivan dismissed plaintiff's Section 1983 claim against Rosales because Rosales "had, at the very least, arguable probable cause to arrest Plaintiff." ( Rodriguez, 2009 WL 3817298, *7, 6 2009 US Dist LEXIS 106464, *21.) NYCTA does not argue on this motion that Judge Sullivan's finding of "arguable probable cause" constitutes probable cause in this action, which would be an affirmative defense to Johnson's allegedly tortious actions. "While arguable probable cause should not be understood to mean almost' probable cause, it exists where officers of reasonable competence could disagree on the legality of the defendant's actions." ( Rodriguez, 2009 WL 3817298, *7, 2009 US Dist LEXIS 106464, * 19 [internal citations and quotation marks omitted].) It would appear that "arguable probable cause" under federal law is not synonymous with "probable cause" or "reasonable cause to believe that a person has committed an offense" under New York law. (CPL 70.10 [2]; see also CPL 140.10 [1][b] [standard for making an arrest without a warrant].)
This Court cannot go so far as to hold that any employee's conduct that could be actionable in tort as false arrest and malicious prosecution would, as a matter of law, fall outside of that employee's scope of employment. As mentioned previously, the determination of whether an employee was acting within the scope of employment is heavily dependent on the facts ( Petrescu, 40 AD3d 947, supra.), which are disputed and must be determinated at trial. Therefore, summary judgment dismissing so much of the complaint that alleges a theory of respondeat superior is denied.
Negligent Hiring, Supervision, and Retention
"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.' 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.'"
( Sandra M. v St. Luke's Roosevelt Hosp. Ctr. , 33 AD3d 875 , 878-879 [2d Dept 2006][internal citations omitted].)
As discussed above, there are unresolved questions of fact as to whether Johnson was acting within the scope of his employment when he told police officers that plaintiff assaulted him.
"Generally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention. This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training."
( Karoon v New York City Tr. Auth., 241 AD2d 323, 324 [1st Dept 1997][citation omitted]; Segal v St. John's Univ. , 69 AD3d 702 [2d Dept 2010]; Drisdom v Niagara Falls Mem. Med. Ctr., 53 AD3d
1142, 1143 [4th Dept 2008]; Coville v Ryder Truck Rental, Inc. , 30 AD3d 744 [3d Dept 2006].) Thus, plaintiff's theory of negligent hiring, supervision, and retention is an alternative theory of liability, which might be viable only if the fact finder determines that Johnson was not acting within the scope of his employment.
However, assuming that Johnson was not acting within the scope of his employment, defendants have demonstrated, as a matter of law, that plaintiff's theory of negligent hiring, supervision, and retention fails as a matter of law. "An essential element of a cause of action for negligent hiring and retention is that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury." ( Sheila C. v Povich , 11 AD3d 120 , 129-130 [1st Dept 2004].) Nothing in Johnson's employment history or NYCTA personnel file put NYCTA on actual or constructive notice of Johnson's alleged propensity to report falsely that he was assaulted.
Plaintiff points out that Johnson stated in a job application that he was "disqualified from N.Y.C. D.OT. False Statement on Application" (Friedman Affirm., Ex K.), and that in a memorandum dated August 26, 2002, NYCTA supervisors concluded from an investigation of improper operation of a train that "Train Operator Johnson, during the interview, submitted conflicting statements . . . The latter [statement] was determined to be untrue. . . ." (Friedman Affirm., Ex U.) Plaintiff also submits documents indicating that Johnson injured on four occasions, three of which he reported that customers had injured him (Friedman Affirm., Exs — R), which plaintiff contends is a pattern of false or arguably false reporting of on-the-job injuries to obtain paid leave.
However, the prior incidents do not raise a triable issue of fact as to whether NYCTA had actual or constructive notice of Johnson's alleged propensity to report falsely to police officers that he was assaulted. Plaintiff submits no evidence either that Johnson's prior incidents of on-the-job injuries were false or that NYCTA investigated and determined that they did not occur, so as to have actual knowledge that the injuries resulting from assaults were falsely reported. Indeed, Linda Berryhill, an Assistant Chief Officer in NYCTA's Division of Special Investigations Review stated in an affidavit that the office (and its predecessor) did not conduct any investigations into those incidents. (Friedman Affirm., Ex W.)
The Court does not agree with plaintiff that the alleged propensity at issue is a propensity either "to make questionable claims of on-the-job injuries," or to lie (Opp. Mem. at 17-18.) However, the Court does not agree with NYCTA that the propensity at issue should be an employee's propensity to commit the specific type of conduct, i.e., lying to police about being assaulted. NYCTA's standard frames the inquiry too narrowly. As plaintiff indicates,
The proper inquiry is whether NYCTA knew or should have known of the "propensity for the sort of behavior which caused the injured party's harm." ( Sandra M., 33 AD3d at 878.) To focus on whether Johnson was prone to lying is too general, because some of the instances of lying upon which plaintiff relies apparently did result cause harm to another person, such as lying on Johnson's own job application.
Coffey v City of New York ( 49 AD3d 449 [1st Dept 2008]), which NYCTA cites, is instructive. In Coffey, the Appellate Division, First Department affirmed the dismissal of negligent hiring/retention claims involving a corrections officer who caused a traffic accident while intoxicated, even though the City of New York, as the employer, was aware that the corrections officer had been to inpatient alcohol rehabilitation three years before the accident, due to persistent lateness and absenteeism. The Appellate Division stated, "The only apparent consequence of Rodriguez's history of problems with alcohol was his lateness and absenteeism. There is no evidence that the City knew of his propensity for drunk driving, and it could not reasonably have foreseen that he would drive while under the influence of alcohol." ( Coffey, 49 AD3d at 450.)
The cases that plaintiffs cite are distinguishable. ( See Walsh v City of New York, 2008 WL 87763 [SD NY 2008][plaintiff granted summary judgment against the City for injuries resulting from a firehouse brawl, because the captain assigned to the ladder company at the firehouse knew that fights in the firehouse were a common occurrence and had broken up five fights between firefighters]; T.W. v City of New York, 286 AD2d 243 [1st Dept 2001][rejecting argument that it is unforeseeable, as a matter of law, that a person with convictions for assault would commit a sexual assault seven years after the last conviction]).
Philips ex rel. Green v City of New York ( 453 F Supp 2d 690 [SD NY 2006]), which plaintiff also cites is inapposite. That case involved a child who allegedly suffered injuries after she was removed from her parents and placed at a children's facility staffed with workers from the City's Administration for Children's Services. The plaintiffs contended that the facility was understaffed, such that ACS workers may not have been able to adequately supervise the children or attend to any injuries. Thus, the claim was based on inadequate supervision, not on negligent supervision of an employee who allegedly caused harm to others.
Therefore, NYCTA is granted summary judgment dismissing so much of the complaint against NYCTA that alleges negligent hiring, retention, and supervision.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is granted only to the extent that the action is severed and dismissed as against Johnson as a nullity, and so much the complaint that alleges negligent hiring, supervision and retention as against defendant New York City Transit Authority is dismissed, and the motion is otherwise denied; and it is further
ORDERED that the remainder of the action shall continue.