Pater v. City of Buffalo

• Decision Date: 08 July 2016
• Citation: 141 A.D.3d 1130,2016 N.Y. Slip Op. 05462,36 N.Y.S.3d 323
• Parties: Elliott B. PATER, as Administrator of the Estate of Joyce Pecky, Deceased, Plaintiff–Appellant, v. CITY OF BUFFALO, Buffalo Police Department and Gregg O'Shei, Defendants–Respondents. (Action No. 1.) Susan Phister, Plaintiff–Appellant, v. City of Buffalo, Buffalo Police Department and Gregg O'Shei, Defendants–Respondents. (Action No. 2.) Erica Snyder, Plaintiff–Appellant, v. City of Buffalo and Gregg O'Shei, Defendants–Respondents. (Action No. 3.)
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1130
36 N.Y.S.3d 323
2016 N.Y. Slip Op. 05462

Elliott B. PATER, as Administrator of the Estate of Joyce Pecky, Deceased, Plaintiff–Appellant,
v.
CITY OF BUFFALO, Buffalo Police Department and Gregg O'Shei, Defendants–Respondents. (Action No. 1.)

Susan Phister, Plaintiff–Appellant,
v.
City of Buffalo, Buffalo Police Department and Gregg O'Shei, Defendants–Respondents. (Action No. 2.)

Erica Snyder, Plaintiff–Appellant,
v.
City of Buffalo and Gregg O'Shei, Defendants–Respondents. (Action No. 3.)

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

July 8, 2016.

36 N.Y.S.3d 324

Cellino & Barnes, P.C., Buffalo (Gregory V. Pajak of Counsel), for Plaintiff–Appellant Elliott B. Pater, as Administrator of the Estate of Joyce Pecky.

Paul William Beltz, P.C., Buffalo (William Quinlan of Counsel), for Plaintiffs–Appellants Susan Phister and Erica Snyder.

Timothy A. Ball, Corporation Counsel, Buffalo (Robert E. Quinn of Counsel), for Defendants–Respondents City of Buffalo and Buffalo Police Department.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

141 A.D.3d 1130

Plaintiffs commenced individual actions alleging personal injuries arising out of incidents of sexual abuse committed by defendant Gregg O'Shei while he was on duty as a police officer for defendants City of Buffalo and the Buffalo Police Department (City defendants). O'Shei allegedly selected

141 A.D.3d 1131

his victims based on their previous criminal histories, drug abuse, and their status as single mothers. Supreme Court properly granted the motion of the City defendants for summary judgment dismissing the complaints against them. Initially, we note that plaintiffs have not challenged on appeal the court's determination that the City defendants cannot be vicariously liable for the conduct of defendant O'Shei, and they therefore have abandoned any contentions concerning the propriety of that part of the order (see Pyramid Brokerage Co., Inc. v. Zurich Am. Ins. Co., 71 A.D.3d 1386, 1388, 897 N.Y.S.2d 327 ; Brunette v. Time Warner Entertainment Co., L.P., 32 A.D.3d 1170, 1170, 822 N.Y.S.2d 176 ).

The court properly granted the motion with respect to plaintiffs' theory that the City defendants negligently retained or supervised O'Shei following his second of two on-duty motor vehicle accidents, the first in 1997 and the second in 2003. Plaintiffs contend that the City defendants

36 N.Y.S.3d 325

failed to do an appropriate evaluation of O'Shei's neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” (Gomez v. City of New York, 304 A.D.2d 374, 374–375, 758 N.Y.S.2d 298 ; see Zanghi v. Laborers' Intl. Union of N. Am., AFL–CIO, 8 A.D.3d 1033, 1034, 778 N.Y.S.2d 607, lv. denied 4 N.Y.3d 703, 790 N.Y.S.2d 650, 824 N.E.2d 51 ), i.e., “that the employer knew or should have known of the employee's propensity for the conduct which caused the injury” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791, lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492, cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 ; see Murray v. Research Found. of State Univ. of N.Y., 283 A.D.2d 995, 996, 723 N.Y.S.2d 805, lv. denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 ; Piniewski v. Panepinto, 267 A.D.2d 1087, 1088, 701 N.Y.S.2d 215 ). Thus, contrary to plaintiffs' contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O'Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee (see Buck v. Zwelling, 272 A.D.2d 895, 895, 707 N.Y.S.2d 281 ; Kenneth R., 229 A.D.2d at 163, 654 N.Y.S.2d 791 ; see also Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933–934, 693 N.Y.S.2d 67, 715 N.E.2d 95 ).

Our dissenting colleague applies a legal standard involving hiring procedures from Travis v. United Health Servs. Hosps., Inc. , 23 A.D.3d 884, 884–885, 804 N.Y.S.2d 840, but neither the Court of Appeals nor we have applied that standard in cases such as this, where hiring procedures are not at issue. Indeed, as the dissent acknowledges, this is a retention case, and it is well settled that the common-law duty for retention does not require

141 A.D.3d 1132

as high a degree of care as does hiring (see Chapman v. Erie Ry. Co., 55 N.Y. 579, 583 ; 1B N.Y. PJI3d 2:240 at 720 [2016] ). The cases relied on by the dissent are therefore inapplicable. Even assuming, arguendo, that the common-law duty for hiring applies to the instant case, we conclude that the holding of Travis and similar cases does not control here. Although Travis has been interpreted as imposing a common-law duty on employers to conduct adequate hiring procedures irrespective of whether an employer knows of facts that would lead a reasonably prudent person to investigate an employee (see 1B N.Y. PJI3d 2:240 at 719–720 [2016] ), we note that this Court has never imposed that broad legal duty on employers. We have held instead that “ ‘[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee’ ” (Buck, 272 A.D.2d at 895, 707 N.Y.S.2d 281 [emphasis added]; see also Judith M. v. Sisters of Charity Hosp., 249 A.D.2d 890, 890, 671 N.Y.S.2d 400, affd. 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95 ). We also disagree with the dissent's conclusion that the foreseeability of the conduct gives rise to an employer's duty to investigate an employee's neuropsychological health inasmuch as foreseeability “is applicable to determine the scope of duty-only after it has been determined there is a duty” (Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019 ). The duty here did not arise inasmuch as the City defendants did not know of O'Shei's propensity to commit sexual abuse and they did not know of any facts requiring a conclusion that they should have known of such a propensity (see

36 N.Y.S.3d 326

Zanghi, 8 A.D.3d at 1034, 778 N.Y.S.2d 607 ), and thus the issue of scope of duty is not before us.

Here, the City defendants established as a matter of law that they lacked notice of O'Shei's propensity for the type of behavior causing plaintiffs' harm (see Paul J.H. v. Lum, 291 A.D.2d 894, 895, 736 N.Y.S.2d 561 ; Curtis v. City of Utica, 209 A.D.2d 1024, 1025, 620 N.Y.S.2d 24 ). The City defendants demonstrated that O'Shei never exhibited any behaviors indicative of his alleged propensity to target vulnerable victims for sexual abuse, nor did the medical information submitted to the City following either of O'Shei's motor vehicle accidents contain any information alerting the City defendants to such propensity. Therefore, contrary to plaintiffs' contention, no duty arose on the part of the City defendants to employ any specific procedures or otherwise to investigate O'Shei's fitness to return to work following the 2003 accident.

We conclude that plaintiffs failed to raise an issue of fact in opposition to the motion (see generally Zuckerman v. City of

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New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Contrary to plaintiffs' contention, the alleged conversation between one of the plaintiffs and her brother, a City of Buffalo patrol officer, does not raise an issue of fact whether the City defendants had actual notice of O'Shei's tortious propensity. The record developed by plaintiffs is inadequate to establish the content of that alleged conversation, as well as the context and circumstances thereof (see generally Caselli v. City of New York, 105 A.D.2d 251, 255–256, 483 N.Y.S.2d 401 ).

Plaintiffs also failed to raise an issue of fact that O'Shei's alleged traumatic brain injury, as purportedly exacerbated by the second motor vehicle accident, furnished constructive notice to the City defendants that O'Shei was likely to exhibit disinhibited behaviors. As noted above, there is nothing in the record supporting that contention.

The dissent conflates the traumatic brain injury O'Shei suffered in the 1997 motor vehicle accident, for which O'Shei was fully evaluated before his return to work in 2003, with “neuropsychological issues” that could be related to such an injury, but the record here does not establish that such “neuropsychological issues” ever existed. To the contrary, following the first motor vehicle accident, O'Shei's physicians determined that there was “no evidence of emotional distress” and “no major psychological issues.” O'Shei denied that he was experiencing depression, anxiety, or PTSD symptoms, and he also told his physicians he “was not willing to consider counseling for issues associated with his brain injury.” Moreover, even after O'Shei was expelled from the Buffalo Police Department and convicted of official...