Opinion
1139 CA 20-01354
02-04-2022
Mari TUCKER, Plaintiff-Appellant, v. KALOS HEALTH, INC., Doing Business as Kalos Health, and Kelly Tucker, Defendants-Respondents.
JACKSON & BALKIN, LOCKPORT (NICHOLAS D. D'ANGELO OF COUNSEL), FOR PLAINTIFF-APPELLANT. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, ALBANY (ANDREW S. HOLLAND OF COUNSEL), FOR DEFENDANT-RESPONDENT KALOS HEALTH, INC., DOING BUSINESS AS KALOS HEALTH. MUSCATO, DI MILLO & VONA, L.L.P., LOCKPORT (GEORGE V.C. MUSCATO OF COUNSEL), FOR DEFENDANT-RESPONDENT KELLY TUCKER.
JACKSON & BALKIN, LOCKPORT (NICHOLAS D. D'ANGELO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, ALBANY (ANDREW S. HOLLAND OF COUNSEL), FOR DEFENDANT-RESPONDENT KALOS HEALTH, INC., DOING BUSINESS AS KALOS HEALTH.
MUSCATO, DI MILLO & VONA, L.L.P., LOCKPORT (GEORGE V.C. MUSCATO OF COUNSEL), FOR DEFENDANT-RESPONDENT KELLY TUCKER.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages arising from the alleged disclosure by defendant Kelly Tucker (Tucker) of plaintiff's personal medical information, which was under the control of Tucker's employer, defendant Kalos Health, Inc., doing business as Kalos Health (Kalos). Plaintiff appeals from an order and judgment that, inter alia, granted defendants’ respective motions pursuant to CPLR 3211 (a) (7) to dismiss the complaint against them. We affirm.
Contrary to plaintiff's contention, Supreme Court properly granted Kalos's motion insofar it sought dismissal of the second cause of action, for breach of fiduciary duty, against it (see Doe v. Guthrie Clinic, Ltd. , 22 N.Y.3d 480, 482, 982 N.Y.S.2d 431, 5 N.E.3d 578 [2014] ).
We likewise reject plaintiff's contention that the court erred in granting Kalos's motion insofar as it sought dismissal of the third cause of action, for negligent retention and supervision. "A necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury," and here the complaint failed to allege that Kalos knew or should have known of a propensity on the part of Tucker to commit the wrongful acts alleged in the complaint ( Shu Yuan Huang v. St. John's Evangelical Lutheran Church , 129 A.D.3d 1053, 1054, 12 N.Y.S.3d 232 [2d Dept. 2015] [internal quotation marks omitted]; see generally White v. Diocese of Buffalo, N.Y. , 138 A.D.3d 1470, 1471, 30 N.Y.S.3d 780 [4th Dept. 2016] ). Instead, the complaint alleges that Tucker's conduct was specifically directed at plaintiff for personal reasons.
We reject plaintiff's contention that defendants’ motions should have been denied as premature in light of the need for further discovery inasmuch as plaintiff made no showing that "additional discovery would disclose facts essential to justify opposition to defendants’ motion[s]" ( Spring v. County of Monroe , 151 A.D.3d 1694, 1696, 57 N.Y.S.3d 799 [4th Dept. 2017] [internal quotation marks omitted]).
By failing to raise a contention opposing the dismissal of any other aspect of her complaint, plaintiff has abandoned any further challenge to the court's order and judgment (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).