Deutsch v. Great Atlantic & Pacific Tea Co., Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore LAZER
Citation89 A.D.2d 597,452 N.Y.S.2d 469
Decision Date19 July 1982
PartiesMaurice DEUTSCH et al., Respondents, v. The GREAT ATLANTIC & PACIFIC TEA CO., INC. et al., Appellants.

Page 469

452 N.Y.S.2d 469
89 A.D.2d 597
Maurice DEUTSCH et al., Respondents,
v.
The GREAT ATLANTIC & PACIFIC TEA CO., INC. et al., Appellants.
Supreme Court, Appellate Division,
Second Department.
July 19, 1982.

Page 470

McCabe, Nicolini & Paradise, Mineola (Stephen M. McCabe, Mineola, of counsel), for appellants.

Ross, Genser, Stone & Levine, Garden City (Arthur Levine, Garden City, of counsel), for respondents.

Before LAZER, J. P., and GULOTTA, BRACKEN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for assault, false imprisonment, false arrest and malicious prosecution, defendants appeal from so much of an order of the Supreme Court, Nassau County, dated May 19, 1981, as denied their cross motion for summary judgment.

Order affirmed insofar as appealed from, with $50 costs and disbursements.

The complaint alleges, inter alia, that Maurice Deutsch (plaintiff), an employee of the defendant corporation, was assaulted by the two individual defendants, security loss protection employees of the corporate defendant, after completion of his work day, as he was approaching his vehicle in the parking lot of the premises where he worked. The defendants argue that plaintiff's exclusive remedy as a result of the alleged assault is pursuant to the Workers' Compensation Law.

Paragraph "6" of the complaint alleges the corporate defendant's prior knowledge of the propensity of the individual defendants for violent and dangerous conduct and also that the corporate defendant "actively directand encouragesuch actions." Paragraph "7" of the complaint alleges that the individual defendants, "acting for and in behalf of said defendant corporation, did willfully and maliciously assault * * * plaintiff".

There can be no common law recovery against an employer for an intentional assault of an employee by a coemployee based upon the employer's negligence in permitting the continued employment of the coemployee, with the employer's knowledge of the propensity of the coemployee for violent and malicious conduct (see O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070). Thus, the portion of paragraph "6" which alleges the negligence of the corporate defendant cannot be the basis for recovery against it for the alleged intentional assault.

However, Trial Term correctly declined to dismiss the complaint or the first cause of action alleged therein (for assault).

"It is settled that 'case law has engrafted an exception...

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2 practice notes
  • Durandette v. City of Syracuse Fire Dept.
    • United States
    • New York Supreme Court — Appellate Division
    • April 25, 1997
    ...N.Y.S.2d 874, 639 N.E.2d 415; O'Dette v. Parton, 190 A.D.2d 1074, 1075, 593 N.Y.S.2d 690; see also, Deutsch v. Great Atl. & Pac. Tea Co., 89 A.D.2d 597, 452 N.Y.S.2d 469). The Fire Department appeals from that part of the order denying its motion to dismiss Uva's cross claim alleging that p......
  • Seemangall v. Canada Dry Bottling Co. of New York
    • United States
    • New York Supreme Court Appellate Division
    • June 6, 1994
    ...benefits (see, O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070; Deutsch v. Great Atlantic & Pacific Tea Co., Inc., 89 A.D.2d 597, 452 N.Y.S.2d MANGANO, P.J., and BALLETTA, O'BRIEN, HART and FLORIO, JJ., concur. ...
2 cases
  • Durandette v. City of Syracuse Fire Dept.
    • United States
    • New York Supreme Court — Appellate Division
    • April 25, 1997
    ...N.Y.S.2d 874, 639 N.E.2d 415; O'Dette v. Parton, 190 A.D.2d 1074, 1075, 593 N.Y.S.2d 690; see also, Deutsch v. Great Atl. & Pac. Tea Co., 89 A.D.2d 597, 452 N.Y.S.2d 469). The Fire Department appeals from that part of the order denying its motion to dismiss Uva's cross claim alleging that p......
  • Seemangall v. Canada Dry Bottling Co. of New York
    • United States
    • New York Supreme Court Appellate Division
    • June 6, 1994
    ...benefits (see, O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070; Deutsch v. Great Atlantic & Pacific Tea Co., Inc., 89 A.D.2d 597, 452 N.Y.S.2d MANGANO, P.J., and BALLETTA, O'BRIEN, HART and FLORIO, JJ., concur. ...

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