Gallo v. Dugan

• Decision Date: 27 June 1996
• Citation: 228 A.D.2d 376,645 N.Y.S.2d 7
• Parties: Gene GALLO, Plaintiff-Respondent, v. John DUGAN, Defendant, and Trell Restaurant, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 7

645 N.Y.S.2d 7

228 A.D.2d 376

Gene GALLO, Plaintiff-Respondent, v. John DUGAN, Defendant, and Trell Restaurant, Inc., Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 27, 1996.

Jesse B. Hecht, for Plaintiff-Respondent.

Barbara M. Berk, for Defendant-Appellant.

Before SULLIVAN, J.P., and ELLERIN, ROSS, NARDELLI, TOM, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County (Walter Relihan, J.), entered on or about June 26, 1995, which, inter alia, denied defendant Trell Restaurant, Inc.'s motion to set aside the jury verdict and dismiss the complaint, is unanimously reversed, on the law, without costs, the motion is granted and the complaint is dismissed as to Trell Restaurant. The Clerk is directed to enter a judgment dismissing and severing the action as against the defendant-appellant herein. Appeal from the order, same court (Carol H. Arber, J.), entered January 24, 1995, which denied defendant's motion for summary judgment, is unanimously dismissed as academic in view of the foregoing, without costs.

We agree with defendant that plaintiff has failed to prove, by a preponderance of the evidence, that the employee had a history of, or propensity for, assaultive behavior and that even if such was proven, that plaintiff knew or should have known of such propensity. Further, the employee worked at the subject premises for approximately seven years, and was elevated from busboy to bartender, without any untoward incidents. As a result, a cause of action for negligent hiring or retention does not lie (see, Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278, 280, 528 N.Y.S.2d 575, lv. denied 73 N.Y.2d 702, 537 N.Y.S.2d 490, 534 N.E.2d 328; Santamarina v. Citrynell, 203 A.D.2d 57, 59, 609 N.Y.S.2d 902). Nor was there sufficient evidence to demonstrate that the employee's negligent training or supervision led to the incident in question (Barr v. County of Albany, 50 N.Y.2d 247, 257-258, 428 N.Y.S.2d 665, 406 N.E.2d 481; Richardson v. New York Univ., 202 A.D.2d 295, 296-297, 609 N.Y.S.2d 180).

Lastly, defendant cannot be held vicariously liable for the bartender's assault upon the patron outside the restaurant as employers are held vicariously liable for their employees' torts only to the extent that the underlying acts fall within the scope of employment (Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 643 N.Y.S.2d 511, 666 N.E.2d 216; Riviello v. Waldron, 47 N.Y.2d 297, 418...