Mayo v.

• Decision Date: 14 January 2015
• Citation: 124 A.D.3d 606,3 N.Y.S.3d 36,2015 N.Y. Slip Op. 00342
• Parties: Lakeisha MAYO, etc., respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

?124 A.D.3d 606
3 N.Y.S.3d 36
2015 N.Y. Slip Op. 00342

Lakeisha MAYO, etc., respondent,
v.
NEW YORK CITY TRANSIT AUTHORITY, appellant, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 14, 2015

Affirmed as modified.

Lawrence Heisler, Brooklyn, N.Y. (Anna J. Ervolina of counsel), for appellant.

Gregory S. Watts, Brooklyn, N.Y., for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY and HECTOR D. LaSALLE, JJ.

[3 N.Y.S.3d 37]

In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated January 10, 2014, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant New York City Transit Authority which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the alleged conduct of the defendant Said Clay, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff's child allegedly was assaulted by the defendant Said Clay, an employee of the defendant New York City Transit Authority (hereinafter the NYCTA), during the course of the child's participation in the NYCTA's community service program. Among other things, the complaint alleged that the NYCTA was negligent in training, hiring, and supervising Clay, and negligent in supervising the plaintiff's child while she was in the program. The Supreme Court denied the NYCTA's motion for summary judgment dismissing the complaint insofar as asserted against it, and the NYCTA appeals.

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment” ( N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844; see Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 119, 643 N.Y.S.2d 511, 666 N.E.2d 216). Here, the evidence submitted by the NYCTA demonstrated that Clay's conduct clearly was not in furtherance of the NYCTA's business and was a departure from the scope of his employment, having been committed for wholly personal motives (...