Thahill Realty Co. v. Martin

• Decision Date: 12 October 1976
• Citation: 88 Misc.2d 520,388 N.Y.S.2d 823
• Parties: THAHILL REALTY COMPANY, Plaintiff, v. Vivian Marie MARTIN, Defendant.
• Court: New York City Court

Page 823

388 N.Y.S.2d 823

88 Misc.2d 520

THAHILL REALTY COMPANY, Plaintiff, v. Vivian Marie MARTIN, Defendant.

Civil Court of the City of New York, Queens County.

Oct. 12, 1976.

Goldblum & Carroll, Forest Hills (Robert J. Ponzan, Forest Hills, of counsel), for plaintiff.

Blank, Goodman, Rone & Stanley, New York City (Jemera F. Rone, New York City, of counsel), for defendant.

DECISION

HERBERT A. POSNER, Judge.

This is a motion by Defendant for an order (under CPLR 3124) to compel Plaintiff to answer 41 interrogatories and a cross-motion by Plaintiff for a protective order (under CPLR 3103(a) striking the interrogatories as being improper under the mandatory exclusion described in CPLR 3130 . . .. 'After commencement of an action, Other than in an action to recover damages for an injury to property, or a personal injury, resulting from negligence . . . any party may serve upon any other party written interrogatories. . . .' (emphasis supplied).

This is an action by the owner of a multiple dwelling on the west side of Manhattan to recover damages of $795 with interest and costs for breach of a written lease. Defendant's first answer was a general denial. At this point we have a rather simple everyday case of breach of lease. There is no doubt that the use of interrogatories under CPLR 3130 would be permitted where the action is based upon contract, not negligence, and does not involve either an injury to property or the person. However, a complication arose when the defendant was permitted to amend her answer to add counterclaims for breach of quiet enjoyment, constructive eviction And negligence (emphasis supplied). As damages for her counterclaim Defendant demands $47,500. Defendant bases her defense and counterclaim on the following set of alleged facts:

On February 22, 1974, Plaintiff's employee, one Clarence Warren, entered Defendant's apartment to perform certain Janitorial duties, while Defendant was personally present on the premises. While in the midst of performing the duties ascribed to his employment he performed certain other acts (which it is 'presumed' were outside the scope of his employment), to wit--assault, robbery, intimidation with intent to kill, and rape. In spite of Clarence Warren's threat to kill her should 'she go to the police', Defendant had the temerity to file a criminal complaint. Within one week Warren was out on bail and, according to the Defendant, 'back on the job.' In fear of her life, she vacated the apartment, 'post haste,' whereupon, the Plaintiff brought this action for breach of lease.

Many of the interrogatories requested by the Defendant deal with information concerning the Plaintiff's pensonnel policies and in particular his knowledge before and after the incident in question of the peculiar proclivities of the employee, Clarence Warren. While the Plaintiff objected to all of the interrogatories, these are the only ones that would provide information helpful to Defendant's counterclaim for 'negligence'. As a general rule an employer is responsible for the acts of his employee, under the theory of respondeat superior, unless the employee is acting outside the scope of his employment. However, knowledge before the incident in question of the employee's past history, prior complaints from other tenants, knowledge of the Defendant's complaint after the incident and the degree of care in selecting, training and supervising employees are all factors which could make the Plaintiff liable for his employee's torts (W. Witmark & Sons v. Hall-Berwin Corp., 223 N.Y. 576, 119 N.E. 1086; Stevens v. Lankard, 31 A.D.2d 602, 297 N.Y.S.2d 686, aff'd 25 N.Y.2d 640, 306 N.Y.S.2d 257, 254 N.E.2d 339; Weiss v. Furniture In The Raw, 62 Misc.2d 283, 306 N.Y.S.2d 253).

There is no question, that the interrogatories which will assist the Defendant in her defense of Plaintiff's contract action and her counterclaims grounded in contract (breach of covenant of quiet enjoyment and constructive eviction) will also assist her in her counterclaim alleging Plaintiff's negligence' in hiring, training, supervising and retaining (after 2/22/74) Clarence Warren in its employ. Plaintiff contends that if the action sounds in negligence, i.e. if recovery is dependent on proof of negligent conduct the Courts will prevent the use of interrogatories, even though the complaint may allege other cause of action, such as breach of contract (Marotta v. Roundtree Estates, Inc., 50 Misc.2d 149, 270 N.Y.S.2d 42). Further, in an action where there are viable causes of action other than negligence, the court will strike those interrogatories which relate and are directed to the question of negligence (Fusco...