Vasquez v. Sirkin Realty Corp.

Full title: Manuel VASQUEZ, Plaintiff–Respondent, v. SIRKIN REALTY CORPORATION…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Jun 4, 2013

107 A.D.3d 410 (N.Y. App. Div. 2013)

967 N.Y.S.2d 28

2013 N.Y. Slip Op. 3946

Opinion

2013-06-4

Manuel VASQUEZ, Plaintiff–Respondent, v. SIRKIN REALTY CORPORATION, Defendant–Appellant, Riverside Equities, LLC, etc., et al., Defendants.

Weiner, Millo, Morgan & Bonanno, LLC, New York (Alissa A. Mendys of counsel), for appellant. Law Office of Neil R. Finkston, Great Neck, (Neil R. Finkston of counsel), for respondent.

ACOSTA

Weiner, Millo, Morgan & Bonanno, LLC, New York (Alissa A. Mendys of counsel), for appellant. Law Office of Neil R. Finkston, Great Neck, (Neil R. Finkston of counsel), for respondent.
ACOSTA, J.P., SAXE, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 2, 2012, which, insofar as appealed from, denied the motion of defendant Sirkin Realty Corporation (Sirkin) for summaryjudgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, the motion granted to the extent of dismissing plaintiff's claims alleging negligent hiring and negligent supervision, and otherwise affirmed, without costs.

The court properly determined that triable issues were raised as to whether defendant Suazo was Sirkin's employee and whether Suazo was acting within the scope of his employment when he assaulted plaintiff. Although the contract between Suazo and Sirkin designates Suazo as an independent contractor, the contract, as well as other record evidence, shows that Sirkin employed Suazo as its building superintendent and exercised control over the methods and means by which his work was to be done ( see Shah v. Lokhandwala, 265 A.D.2d 396, 697 N.Y.S.2d 73 [2d Dept. 1999] ). There was also evidence that Suazo was protecting building property at the time of the assault ( see Ramos v. Jake Realty Co., 21 A.D.3d 744, 801 N.Y.S.2d 566 [1st Dept. 2005] ).

Nevertheless, the claims alleging negligent hiring and supervision are not viable. There is no evidence that Sirkin was on notice that Suazo had any propensity for violence ( see White v. Hampton Mgt. Co. L.L.C., 35 A.D.3d 243, 827 N.Y.S.2d 120 [1st Dept. 2006] ).