Ford v. Gildin

• Decision Date: 26 May 1994
• Citation: 613 N.Y.S.2d 139,200 A.D.2d 224
• Parties: , 10 IER Cases 125 Vera FORD, Individually and as Mother of Timia Ford, an infant, Plaintiffs-Respondents, v. David GILDIN, Marcus Gildin, Leon Gildin, Fort Terrace Co., Defendants-Appellants, 66 Overlook Terrace Corp., Defendant-Respondent. Vera FORD, Individually and as Mother of Timia Ford, an infant, Plaintiffs, v. 66 OVERLOOK TERRACE CORP., Defendant. 66 OVERLOOK TERRACE CORP., Third-Party Plaintiff, v. KABLAN REALTY CORP., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 139

613 N.Y.S.2d 139

200 A.D.2d 224, 10 IER Cases 125

Vera FORD, Individually and as Mother of Timia Ford, an infant, Plaintiffs-Respondents, v. David GILDIN, Marcus Gildin, Leon Gildin, Fort Terrace Co.,

Defendants-Appellants,

66 Overlook Terrace Corp., Defendant-Respondent.

Vera FORD, Individually and as Mother of Timia Ford, an infant, Plaintiffs, v. 66 OVERLOOK TERRACE CORP., Defendant.

66 OVERLOOK TERRACE CORP., Third-Party Plaintiff, v. KABLAN REALTY CORP., Third-Party Defendant.

Supreme Court, Appellate Division,

First Department.

May 26, 1994.

Robert H. Goldberg, of counsel (Goldberg & Carlton, attorneys) for defendants-appellants.

Steven B. Prystowsky, of counsel (Lester Schwab Katz & Dwyer, attorneys) for defendant-respondent 66 Overlook Terrace Corp.

Before SULLIVAN, J.P., and CARRO, NARDELLI and TOM, JJ.

CARRO, Justice.

In 1955 Howard Taylor pleaded guilty to manslaughter and served five years in prison. In 1964 defendants David, Marcus and Leon Gildin, d/b/a/ Fort Terrace Co., sued herein as Fort Terrace Co. ("the Gildins") hired Taylor as a porter for the residential building they owned and managed, 66 Overlook Terrace, upon the recommendation of his brother, who was also their employee. The building was sold to the defendant 66 Overlook Terrace Corp. in March of 1984, and the Gildins relinquished management of the building in April 1985.

In 1967 plaintiff Vera Ford moved to 66 Overlook Terrace, where Taylor resided in a basement apartment. They became friends. In 1974, when Ford's daughter Timia was born, Taylor became her godfather and, as Timia grew, Taylor was a frequent presence in her life, often being permitted to watch the child unattended and have her visit him in his apartment. In 1987 it was discovered that Taylor was sexually abusing Timia, then 13 years old, and had been for some years prior, allegedly dating back to June 1982.

Plaintiffs brought suit against the Gildins and the successor landlord, essentially claiming negligence in hiring Taylor. The IAS court denied the Gildins' motion for summary judgment, reasoning that "[t]he Gildin defendants have not presented evidence of what kind of employment screening was performed, merely that Mr. Taylor was recommended for the porter's job by his brother and they were unaware of any problems. Whether this screening and Mr. Taylor's retention was reasonable under the circumstances is a factual question for the jury (see, Haddock v. City of New York, 75 NY2d 478 [554 N.Y.S.2d 439, 553 N.E.2d 987]."

The Haddock case involved a negligence action against the City of New York arising from the rape of a child by a Parks Department employee who was retained in his employment at a playground after the City learned of his history of violent crimes, without complying with its own personnel procedures or exercising its discretion in retaining him. The Court of Appeals noted that the plaintiff had no viable action against the City for hiring its employee, which was mandated by law, and that issues of foreseeability and causation were not presented on the appeal (75 N.Y.2d, at 483, 554 N.Y.S.2d 439, 553 N.E.2d 987). The Court held that "[t]he importance of employing former inmates, and reintegrating them into society, without risk of absolute liability for those who open doors to them, cannot be overstated. But even that worthy objective cannot excuse a municipal employer from compliance with its own procedures requiring informed discretion in the placement of individuals with criminal records...." (75 N.Y.2d, at 485, 554 N.Y.S.2d 439, 553 N.E.2d 987).

It is not here alleged that the Gildins failed to comply with their own procedures regarding employment of individuals with criminal records; nor does the record indicate that the Gildins had any such procedures. In Amendolara v. Macy's New York, 19 A.D.2d 702, 241 N.Y.S.2d 39, which this Court decided shortly before Taylor was hired, we stated: "We find no evidence in the record from which a jury could reasonably infer negligence on the part of defendant Macy's New York in the hiring or supervision of Charters. It was under no duty to inquire into the possibility that Charters might have been convicted of a crime in the past, and before the incident in question nothing transpired to alert it to the possibility that such an incident might occur." While obviously the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment, we find no factual issue in this case regarding the Gildins' alleged negligence arising from their hiring Taylor as a porter.

"A party's liability for negligent acts or omissions extends to all injuries which are a foreseeable consequence thereof provided that the negligent conduct was the proximate, or legal cause of the injuries sustained" (Taieb v. Hilton Hotels Corp., 131 A.D.2d 257, 262, 520 N.Y.S.2d 776, appeal dismissed 72 N.Y.2d 1040, 534 N.Y.S.2d 936, 531 N.E.2d 656). Assuming arguendo that the Gildins' hiring of Taylor in 1964 was negligence, that negligence could not be found to be a proximate cause of the injury to the infant plaintiff some 18 years later (see, 79 NYJur2d, Negligence, § 52). The plaintiff mother's friendship with Taylor, his designation as Timia's godfather 10 years after he was hired, and Timia's unsupervised visits with Taylor which resulted from his closeness with the Ford family, were independent and unforeseeable intervening events which, taken together with the passage of 18 years from the time Taylor was hired until his wrongful acts against Timia, severed the causal nexus between the two events (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666). In addition, it was not foreseeable, as a matter of law, that a person who had committed manslaughter some time prior to 1955 would molest a child 27 years later. Were we to hold otherwise, then all ex-offenders who had ever committed a violent crime would be rendered virtually unemployable, for to hire them would render the employer liable for any criminal act committed thereafter, no matter how long the passage of time after the prior offense, and no matter how different the subsequent offense was from the earlier one.

In Haddock v. City of New York, 75 N.Y.2d, at 486, 554 N.Y.S.2d 439, 553 N.E.2d 987, supra the Court of Appeals noted: "Particularly with respect to the employment of ex-convicts--who are officially free to walk the streets, visit playgrounds, and live and work in society without being branded or segregated--the opportunity for gainful employment may spell the difference between recidivism and rehabilitation." Applying that policy to the instant case, even if the Gildins knew of Taylor's conviction for manslaughter before hiring him as a porter, the Gildins should not be subjected to liability, at the whim of a sympathetic jury, for criminal acts committed by Taylor approximately 27 years after his conviction and 18 years after he was hired.

We observe in this regard that Correction Law § 753(1)(a) provides: "The public policy of this state, as expressed in this act, [is] to encourage the licensure and employment of persons previously convicted of one or more criminal offenses." Correction Law § 752 prohibits an employer who has ten or more employees from denying employment to a person on the basis of his having been...