Guarino v. ProHEALTH Care Assoc.

• Docket Number: 2021-01819,Index No. 612206/19
• Decision Date: 02 August 2023
• Citation: 2023 NY Slip Op 04112
• Parties: Marianne Guarino, respondent, v. ProHEALTH Care Associates, LLP, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 04112

Marianne Guarino, respondent, v. ProHEALTH Care Associates, LLP, appellant, et al., defendant.

No. 2021-01819, Index No. 612206/19

Supreme Court of New York, Second Department

August 2, 2023

Seyfarth Shaw, LLP, New York, NY (Cameron Smith, John DiNapoli, and Brian S. Bienenfeld of counsel), for appellant.

Bergstein & Ullrich, New Paltz, NY (Stephen Bergstein of counsel), for respondent.

BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring training, supervision, and retention, the defendant ProHEALTH Care Associates, LLP, appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), dated January 29, 2021. The order, insofar as appealed from, denied the converted motion of the defendant ProHEALTH Care Associates LLP, for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the converted motion of the defendant ProHEALTH Care Associates, LLP, for summary judgment dismissing the amended complaint insofar as asserted against it is granted.

The defendant Dwight C. De Risi was a physician and partner in the defendant ProHEALTH Care Associates, LLP (hereinafter ProHEALTH). The plaintiff was a patient. The plaintiff alleged that De Risi subjected her to unwanted touching when she was undergoing a procedure. The plaintiff filed an amended complaint in this action asserting causes of action alleging a violation of Executive Law § 296 and, as against ProHEALTH only, negligent hiring, training, supervision, and retention. ProHEALTH moved pursuant to CPLR 3211 to dismiss the amended complaint insofar as asserted against it. The Supreme Court converted the motion into one for summary judgment and ProHEALTH submitted additional papers. In an order dated January 29, 2021, the court, inter alia, denied ProHEALTH's converted motion for summary judgment dismissing the amended complaint insofar as asserted against it. ProHEALTH appeals.

The Supreme Court erred in denying that branch of ProHEALTH's motion which was for summary judgment dismissing the cause of action alleging negligent hiring, training, supervision, and retention. "'[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury'" (Barton v City of New York, 187 A.D.3d 976, 977, quoting Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161; see Johansmeyer v New York City Dept. of Educ., 165 A.D.3d 634, 635). Here, the submissions of ProHEALTH demonstrated, prima facie, that it did not have notice of any propensity of De Risi to commit misconduct (see Barton v City of New York, 187 A.D.3d at 977; Evans v City of Mount Vernon, 92 A.D.3d 829, 830). In opposition, the plaintiff failed to raise a triable issue of fact as to whether ProHEALTH knew or should have known that De Risi had a propensity for misconduct (see State Farm Ins. Co. v Central Parking Sys., Inc., 18 A.D.3d 859, 860).

Further the Supreme...