McCarthy v. Mario Enters., Inc., 525963

• Decision Date: 05 July 2018
• Docket Number: 525963
• Citation: 163 A.D.3d 1135,81 N.Y.S.3d 262
• Parties: Brendan MCCARTHY, Appellant, v. MARIO ENTERPRISES, INC., Doing Business as The Stone Lounge, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1135
81 N.Y.S.3d 262

Brendan MCCARTHY, Appellant,
v.
MARIO ENTERPRISES, INC., Doing Business as The Stone Lounge, et al., Respondents.

525963

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

Calendar Date: June 4, 2018
Decided and Entered: July 5, 2018

81 N.Y.S.3d 263

McGivney Kluger & Cook, PC, New York City (Michael Rawlinson of counsel), for appellant.

Pinsky Law Group PLLC, Syracuse (Bradley M. Pinsky of counsel), for respondents.

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from an order of the Supreme Court (Rumsey, J.), entered March 3, 2017 in Cortland County, which granted defendants' motion to dismiss the complaint.

Defendant Mario Enterprises, Inc. operates a bar, defendant The Stone Lounge, which employed defendant Eric Bonawitz as a bouncer. In 2014, plaintiff, then 19 years old, was at the bar when Bonawitz punched him in the face, causing injuries. More than two years later, plaintiff commenced this action alleging that defendants breached their duty to keep the premises safe and negligently hired and supervised employees, specifically Bonawitz. Defendants filed a pre-answer motion to dismiss the complaint, which Supreme Court granted. Plaintiff appeals.¹

Supreme Court did not err in dismissing the first cause of action. That cause of action, which purportedly alleges negligence in failing to maintain a safe premises, could be interpreted as alleging that Mario Enterprises and The Stone Lounge (hereinafter collectively referred to as the employer defendants) were responsible for Bonawitz's actions under a theory of respondent superior, or that they were negligent in their staffing and training of security personnel. Regarding the former interpretation, Bonawitz's actions as alleged in the complaint were intentional and, therefore, any claim based on them was barred by the one-year statute of limitations (see CPLR 215[3] ). "Plaintiff cannot avoid the statute of limitations by reframing his intentional tort claims as a claim based on breach of the duty to keep the premises safe" ( Kerzhner v. G4S Govt. Solutions, Inc., 138 A.D.3d 564, 564, 30 N.Y.S.3d 620 [2016] ; see Palker v. MacDougal Rest., Inc., 96 A.D.3d 629, 630, 947 N.Y.S.2d 465 [2012] ; see also Ramautar v. Wainfeld, 273 A.D.2d 214, 214, 709 N.Y.S.2d 838 [2000] ). The latter interpretation of this cause of action would render those allegations duplicative of the second cause of action. Thus, the first cause of action was properly dismissed.

The second cause of action alleges that the employer defendants negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, "[g]enerally, where an

81 N.Y.S.3d 264

employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed...