Wells v. Douglas Elliman LLC, Docket Number: 115373/2009

• Decision Date: 09 February 2011
• Docket Number: Docket Number: 115373/2009
• Citation: 2011 NY Slip Op 30479
• Parties: SAMANTHA WELLS and MANDY STEIN, as Co-Administrators of the Estate of LINDA STEIN, and SAMANTHA WELLS and MANDY STEIN, Individually, Plaintiffs v. DOUGLAS ELLIMAN, LLC, DE ACQUISITION, LLC, INSIGNIA DOUGLAS ELLIMAN, LLC, AXION LLC, and NATIVIA S. LOWERY, Defendants
• Court: New York Supreme Court

2011 NY Slip Op 30479

SAMANTHA WELLS and MANDY STEIN, as Co-Administrators of the Estate of LINDA STEIN, and SAMANTHA WELLS and MANDY STEIN, Individually, Plaintiffs v. DOUGLAS ELLIMAN, LLC, DE ACQUISITION, LLC, INSIGNIA DOUGLAS ELLIMAN, LLC, AXION LLC, and NATIVIA S. LOWERY, Defendants

Docket Number: 115373/2009

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OP NEW YORK: PART 46

February 9, 2011

DECISION AND ORDER

APPEARANCES:

For Plaintiffs David P. Kownacki Esq. and Andrew Leftt Esq.

For Defendant Axion LLC Thomas W. Hyland Esq. and A. Ernest Tonorezos Esq. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

For Defendants Douglas Elliman, LLC, De Acquisition, LLC, and Insignia Douglas Elliman, LLC Patricia D'Antone Esq. Curtis, Vasile, P.C.

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiffs sue to recover damages from defendant limited liability companies, claiming they share responsibility for defendant Lowery killing Linda Stein October 30, 2007. Defendant Axion LLC, the employer of Lowery, whom defendant De Acquisition, LLC, assigned to be Stein's personal assistant, moves to dismissthe action against Axion LLC on the ground that the amended complaint fails to state a claim against this defendant. C.P.L.R. § 3211(a)(7). For the reasons explained below, the court grants Axion LLC's motion to the limited extent set forth, but otherwise denies its motion.

Liberally interpreting the amended complaint, the court discerns three grounds on which to sustain plaintiffs' claim that defendant employer negligently hired, supervised, or retained Lowery. (1) If Axion LLC was aware of her criminal or her past employment record, either history demonstrated her unfitness as a personal assistant.(2) Even if Axion LLC was unaware of her record, the position for which she was being hired required a minimal investigation. (3) Even if Axion LLC was not negligent in hiring her, her conflicts with Stein on the job required the employer's remedial action.

Plaintiffs' allegations do not, however, sustain their claim that defendant employer is vicariously liable for Lowery's intentional, culpable acts, because plaintiffs fail to indicate (1) how her employer instigated, authorized, or at least condoned those acts or (2) how they related to her employer's business or her job duties, rather than her own personal objectives. In fact, nothing could more directly contravene the employer's interests or her duties as a personal assistant.

II. APPLICABLE STANDARDS

Upon defendant Axion LLC's motion to dismiss claims pursuant to C.P.L.R. § 3211(a) (7), the court may not rely on facts allegedby defendant to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against defendant. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Yoshiharu laarashi v. Shohaku Higashi, 289 A.D.2d 128 (1st Dep't 2001); Ladenburg Thalmann & Co. v. Tim's Amusements, 275 A.D.2d 243, 246 (1st Dep't 2000). The court must accept the amended complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs' favor. Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of M.Y., 98 N.Y.2d at 326;Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 144-45 (1st Dep't 2009). The applicable standard thus is whether reasonable inferences from the amended complaint sustain a claim. Harris v. IG Greenpoint Corp,, 72 A.D.3d at 609; Peoler v. Coyne, 33 A.D.3d 434, 435 (1st Dep't 2006). See Lappin v. Greenberq, 34 A.D.3d 277, 279 (1st Dep't 2006). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a) (7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Pepler v. Coyne, 33 A.D.3d at 435; Frank v. DaimlerChrvsler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002).

Especially upon a pre-answer motion to dismiss as here, at this early stage in the litigation, the court must not evaluatethe merits of plaintiffs' claims prematurely. Nonnon v. City of New York, 9 N.Y.3d at 827; Viq v. New York Hairgpray Co., L.P., 67 A.D.3d at 145. Instead, the court must recognize plaintiffs' "right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissal of a complaint." Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 379 (1995).

III. AXION LLC'S MOTION TO DISMISS

A. Plaintiffs' Claim of Negligent Hiring, Supervision, and Retention

To recover on plaintiffs' claim for negligent hiring, supervision, or retention, plaintiffs must show that defendant employer received notice, actual or constructive, of an employee's tortious propensities to cause plaintiffs' injury or, in this case, injury to the deceased Linda Stein on whose behalf plaintiffs sue. Coffey v. City of New York,. 49 A.D.3d 449, 450 (1st Dep't 2008); White v. Hampton Mgt. Co. L.L.C., 35 A.D.3d 243, 244 (1st Dep't 2006); Nunez v. Caryl & Broadway, Inc., 30 A.D.3d 249, 250 (1st Dep't 2006); Chagnon v. Tyson, 11 A.D.3d 325, 326 (1st Dep't 2004). Plaintiffs allege that defendants, including Axion LLC, placed Lowery with Stein despite Lowery's "history of criminal behavior, theft, fraud, embezzlement, tax evasion, debt and/or civil judgments against her" and despite the fact that she "had been fired and/or separated from previous employment for the above reasons on numerous occasions in the past." Aff. of Thomas W. Hyland, Ex. A ¶ 64. Plaintiffs do not specifically claim that defendants were aware of Lowery's historyof criminal or unlawful conduct before hiring Lowery. Plaintiffs do allege, however, that Stein had "confronted defendant LOWERY" regarding thefts while on the job with Stein, id. ¶ 68, and defendants were negligent in supervising Lowery, by "failing to recognize conflicts" that arose between Stein and Lowery, "address conflicts despite knowledge that same could lead to violence," and "recognize a propensity for violence." Id. ¶¶ 74. See id. ¶¶ 27, 55-58, 64, 70.

These allegations form the linchpin of plaintiffs' claim for negligent hiring, supervision, and retention. The assault, battery, and murder per se, of which Lowery eventually was criminally convicted, need not have been foreseeable by Axion LLC to sustain their claim. Sanchez v. State of Mew York, 99 N.Y.2d 247, 252 (2002); Rodriguez v. City of New York, 38 A.D.3d 349, 352 (1st Dep't 2007); Wayburn v. Madison Land Ltd, Partnership, 282 A.D.2d 301, 304 (1st Dep't 2001). See Glover v. Augustine, 38 A.D.3d 364, 365 (1st Dep't 2007); Nunez v. Caryl & Broadway, Inc., 30 A.D.3d at 250; Conde v. Yeshiva Univ., 16 A.D.3d 185, 187 (1st Dep't 2005); Dykes v. McRoberts Protective Agency, 256 A.D.2d 2, 3 (1st Dep't 1998). Plaintiffs' allegations that, either from Lowery's history before her employment by Axion LLC, or from her conflicts with Stein that surfaced during this employment, Lowery's stealing, dishonesty, untrustworthiness, and violence were known or at least foreseeable support the employer's liability. E.g., Hyland Aff., Ex. A ¶¶ 67-68, 70.

In sum, Axion LLC may be held liable if it knew or shouldhave known of Lowery's violent propensity. Tavlor v. United Parcel Serv., Inc., 72 A.D.3d 573, 574 (1st Dep't 2010); Pinkney v. City of New York, 52 A.D.3d 242, 243 (l3t Dep't 2008). Axion LLC's alleged failure to resolve conflicts that plainly could lead to violence and failure to recognize and address Lowery's manifested violent propensity allow an inference that Axion LLC should have known of that violent propensity. T.W. v. City ofNew York, 286 A.D.2d 243, 245 (1st Dep't 2001); Bumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654 (2d Dep't 2008). See Chagnon v. Tyson, 11 A.D.3d at 326; Sheila C. v. Povich, 11 A.D.3d 120, 129-30 (1st Dep't 2004).

Plaintiffs also claim Axion LLC is liable for negligent hiring in failing to investigate Lowery's trustworthiness adequately. They claim the duty to investigate arises especially here, in view of the employer's "knowledge that defendant LOWERY would be working closely with LINDA STEIN, deceased, in her home," Hyland Aff., Ex. A ¶ 38, and was being assigned the duties of a "personal assistant," giving Lowery access to Stein's funds, business and personal records, and other property. Id. ¶¶ 37-38, 64. Specifically, plaintiffs allege that "Axion was required to exercise due diligence in checking the background and credentials" of Lowery, id. ¶ 51, and to'ensure that employees "were without unsuitable, dishonest, and/or violent propensities and without physical, psychological and/or physiological traits or characteristics that would render them unsuitable or unstable or contraindicated for such employment." Id. ¶ 57.

While defendant employer owes a duty to investigate an employee's background only if defendant knows facts that would lead a reasonably prudent employer to investigate, again plaintiffs' allegations that defendants failed to recognize a violent propensity and resolve conflicts early in Lowery's assignment, as well as later, demonstrate that knowledge. T.W. v. City of New York, 286 A.D.2d at 245; K.I. v. New York City Bd. of Educ., 256 A.D.2d 189, 192 (1st Dep't 1998). SeeYeboah v. Snapple, Inc., 286 A.D.2d 204, 205 (1st Dep't 2001). The simple fact known to an employer that it was hiring a personal assistant, moreover, plausibly would have led it, if reasonably prudent, to conduct at least a rudimentary check of her criminal history or past employers, which would have revealed a criminal record or a firing for misconduct. See Glover v. Augustine, 3 8 A.D.3d at 365.

B. Plaintiffs' Claim Based on Respondeat Superior

Under plaintiffs' further theory of respondeat superior, defendant employer is liable for its employee's negligent or...