Wimmer v. Pratt Institute

• Decision Date: 06 June 1978
• Citation: 405 N.Y.S.2d 707,63 A.D.2d 885
• Parties: Frank J. WIMMER, Plaintiff-Appellant, v. PRATT INSTITUTE et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 707

405 N.Y.S.2d 707

63 A.D.2d 885

Frank J. WIMMER, Plaintiff-Appellant, v. PRATT INSTITUTE et al., Defendants-Respondents.

Supreme Court, Appellate Division,First Department.

June 6, 1978.

M. W. Levy, New York City, for plaintiff-appellant.

R. S. Melnyk, P. A. Lyons, New York City, for defendants-respondents.

Before LUPIANO, J. P., and BIRNS, LANE, MARKEWICH and SANDLER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered August 24, 1977, which granted defendant John C. Mandel Security Bureau, Inc.'s motion for summary judgment dismissing the complaint on the ground that plaintiff's complaint is time barred and order of said court, entered November 25, 1977, which granted defendant Pratt Institute's motion for summary judgment dismissing the complaint on the ground that plaintiff's complaint is time barred, unanimously reversed, on the law, without costs and disbursements, and the motions denied.

In this action plaintiff seeks to recover for damages allegedly resulting from the negligence of defendants Pratt Institute and John C. Mandel Security Bureau, Inc. in the hiring and retaining in their employ Frederick Percell who had alleged known vicious tendencies and assaulted and injured plaintiff on October 28, 1973. Viewing plaintiff's action as one for an assault and battery governed by the one-year statute of limitations, Special Term dismissed the complaint as the action commenced on or about November 5, 1976.

While it is true that the plaintiff's injury resulted from the assault committed by Percell, the plaintiff is not thereby relegated only to a cause of action for assault and battery. "A single act or default causing a single injury may constitute a breach of different duties and may give rise to causes of action based upon different grounds of liability and subject to different statutory periods of limitation(s) (Schram v. Cotton, 281 N.Y. 499, 24 N.E.2d 305; House v. Carr, 185 N.Y. 453, 458, 78 N.E. 171, 172, (6 L.R.A.,N.S. 510))" (King v. King, 13 A.D.2d 437, 440, 218 N.Y.S.2d 230 (2nd Dept. 1961)). Plaintiff's action sounds in negligence against these defendants for the hiring of one who they allegedly knew had vicious tendencies (See, Hall v. Smathers, 240 N.Y 486, 148 N.E. 654 (1925)); Lopez v. Burns International Protective Agency, 48 A.D.2d 645, 368 N.Y.S.2d 221 (1st Dept. 1975)). It is the alleged negligent hiring which is the gravamen of the complaint and this is governed by the three-year statute...