Curtis by Curtis v. City of Utica
| Decision Date | 16 November 1994 |
| Citation | 620 N.Y.S.2d 24,209 A.D.2d 1024 |
| Parties | Lamont A. CURTIS, an Infant, By Warren S. CURTIS, his Father and Natural Guardian, and Warren S. Curtis, Individually, Respondents, v. The CITY of UTICA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Albert A. Alteri, Corp. Counsel's Office by Linda Fatata, Utica, for appellant.
George F. Aney, Herkimer, John Cirando, Syracuse, for respondents.
Before PINE, J.P., and BALIO, LAWTON, CALLAHAN and DAVIS, JJ.
Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Assuming, arguendo, that defendant was the employer of the summer camp group leader who assaulted the infant, it may not be held liable for his intentional tort because the record establishes as a matter of law that the acts constituting that tort were wholly personal in nature, outside the scope of the counselor's employment and not in furtherance of defendant's business (see, Joshua S. v. Casey, 206 A.D.2d 839, 615 N.Y.S.2d 200; Nicollette T. v. Hospital for Joint Diseases/Orthopaedic Inst., 198 A.D.2d 54, 54-55, 603 N.Y.S.2d 146; Noto v. St. Vincent's Hosp. & Med. Ctr., 160 A.D.2d 656, 656-657, 559 N.Y.S.2d 510, lv. denied 76 N.Y.2d 714, 564 N.Y.S.2d 718, 565 N.E.2d 1269; see generally, Riviello v. Waldron, 47 N.Y.2d 297, 302-303, 418 N.Y.S.2d 300, 391 N.E.2d 1278). Moreover, while an employer may be liable if it hired or retained an employee with knowledge of the employee's propensity for the sort of behavior that caused a plaintiff harm, there is no evidence in the record that defendant, assuming that it was the group leader's employer, had such knowledge (see, Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 611 N.Y.S.2d 615; Detone v. Bullit Courier Serv., 140 A.D.2d 278, 279, 528 N.Y.S.2d 575, lv. denied 73 N.Y.2d 702, 537 N.Y.S.2d 490, 534 N.E.2d 328).
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
To continue reading
Request your trial
-
Pater v. City of Buffalo
...for the type of behavior causing plaintiffs' harm (see Paul J.H. v. Lum, 291 A.D.2d 894, 895, 736 N.Y.S.2d 561 ; Curtis v. City of Utica, 209 A.D.2d 1024, 1025, 620 N.Y.S.2d 24 ). The City defendants demonstrated that O'Shei never exhibited any behaviors indicative of his alleged propensity......
-
Miller v. Miller
...N.Y.S.2d 575 [1st Dept. 1988], lv denied 73 N.Y.2d 702, 537 N.Y.S.2d 490, 534 N.E.2d 328 [1988] ; see Curtis v. City of Utica , 209 A.D.2d 1024, 1025, 620 N.Y.S.2d 24 [4th Dept. 1994] ; see generally Lamb v. Stephen M. Baker, O.D., P.C. , 152 A.D.3d 1230, 1231, 58 N.Y.S.3d 849 [4th Dept. 20......
-
Girden v. Sandals International
...the attack was outside the scope of the employee's duties. Cornell v. State, 46 N.Y.2d 1032, 1033 (1979); Curtis v. City of Utica, 209 A.D.2d 1024, 1025 (4th Dep't 1994); Nicollette T. v. Hosp. for Joint Diseases/Orthopaedic Inst., 198 A.D.2d 54, 54-55 (1st Dep't 1993); Murray v. Research F......
-
Forester v. State
...and therefore, defendant cannot be held vicariously liable. This analysis was invoked by the Appellate Division in Curtis v. City of Utica, 209 A.D.2d 1024, 620 N.Y.S.2d 24, where it was held Assuming, arguendo, that defendant was the employer of the summer camp group leader who assaulted t......