Ford v. Gildin

200 A.D.2d 224, 613 N.Y.S.2d 139
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 26, 1994
StatusPublished
Cited by12 cases

This text of 200 A.D.2d 224 (Ford v. Gildin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Gildin, 200 A.D.2d 224, 613 N.Y.S.2d 139 (N.Y. Ct. App. 1994).

Opinion

OPINION OF THE COURT

Carro, J.

In 1955 Howard Taylor pleaded guilty to manslaughter and served five years in prison. In 1964 defendants David, Marcus and Leon Gildin, doing business as Fort Tryon Terrace Co., sued herein as Fort Terrace Co. (the Gildins), hired Taylor as a porter for the residential building they owned and managed, 66 Overlook Terrace, upon the recommendation of his brother, who was also their employee. The building was sold to the defendant 66 Overlook Terrace Corp. in March of 1984, and the Gildins relinquished management of the building in April 1985.

In 1967 plaintiff Vera Ford moved to 66 Overlook Terrace, where Taylor resided in a basement apartment. They became friends. In 1974, when Ford’s daughter Timia was born, Taylor became her godfather and, as Timia grew, Taylor was a frequent presence in her life, often being permitted to watch the child unattended and have her visit him in his apartment. In 1987 it was discovered that Taylor was sexually abusing Timia, then 13 years old, and had been for some years prior, allegedly dating back to June 1982.

Plaintiffs brought suit against the Gildins and the successor landlord, essentially claiming negligence in hiring Taylor. The IAS Court denied the Gildins’ motion for summary judgment, reasoning that "[t]he Gild[i]n defendants have not presented [226]*226evidence of what type of employment screening was performed, merely that Mr. Taylor was recommended for the porter’s job by his brother and they were unaware of any problems. Whether this screening and Mr. Taylor’s retention was reasonable under the circumstances is a factual question for the jury, see Haddock v City of New York, 75 NY2d 478 (1990).”

The Haddock case involved a negligence action against the City of New York arising from the rape of a child by a Parks Department employee who was retained in his employment at a playground after the City learned of his history of violent crimes, without complying with its own personnel procedures or exercising its discretion in retaining him. The Court of Appeals noted that the plaintiff had no viable action against the City for hiring its employee, which was mandated by law, and that issues of foreseeability and causation were not presented on the appeal (75 NY2d, supra, at 483). The Court held that "[t]he importance of employing former inmates, and reintegrating them into society, without risk of absolute liability for those who open doors to them, cannot be overstated. But even that worthy objective cannot excuse a municipal employer from compliance with its own procedures requiring informed discretion in the placement of individuals with criminal records” (75 NY2d, supra, at 485).

It is not here alleged that the Gildins failed to comply with their own procedures regarding employment of individuals with criminal records; nor does the record indicate that the Gildins had any such procedures. In Amendolara v Macy’s N. Y. (19 AD2d 702 [1963]), which this Court decided shortly before Taylor was hired, we stated: "We find no evidence in the record from which a jury could reasonably infer negligence on the part of defendant Macy’s New York in the hiring or supervision of Charters. It was under no duty to inquire into the possibility that Charters might have been convicted of a crime in the past, and before the incident in question nothing transpired to alert it to the possibility that such an incident might occur.” While obviously the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment, we find no factual issue in this case regarding the Gildins’ alleged negligence arising from their hiring Taylor as a porter.

"A party’s liability for negligent acts or omissions extends to all injuries which are a foreseeable consequence thereof [227]*227provided that the negligent conduct was the proximate, or legal cause of the injuries sustained” (Taieb v Hilton Hotels Corp., 131 AD2d 257, 262, appeal dismissed 72 NY2d 1040). Assuming, arguendo, that the Gildins’ hiring of Taylor in 1964 was negligence, that negligence could not be found to be a proximate cause of the injury to the infant plaintiff some 18 years later (see, 79 NY Jur 2d, Negligence, § 52). The plaintiff mother’s friendship with Taylor, his designation as Timia’s godfather 10 years after he was hired, and Timia’s unsupervised visits with Taylor which resulted from his closeness with the Ford family, were independent and unforeseeable intervening events which, taken together with the passage of 18 years from the time Taylor was hired until his wrongful acts against Timia, severed the causal nexus between the two events (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). In addition, it was not foreseeable, as a matter of law, that a person who had committed manslaughter some time prior to 1955 would molest a child 27 years later. Were we to hold otherwise, then all ex-offenders who had ever committed a violent crime would be rendered virtually unemployable, for to hire them would render the employer liable for any criminal act committed thereafter, no matter how long the passage of time after the prior offense, and no matter how different the subsequent offense was from the earlier one.

In Haddock v City of New York (75 NY2d, supra, at 486), the Court of Appeals noted: "Particularly with respect to the employment of ex-convicts — who are officially free to walk the streets, visit the playgrounds, and live and work in society without being branded or segregated — the opportunity for gainful employment may spell the difference between recidivism and rehabilitation.” Applying that policy to the instant case, even if the Gildins knew of Taylor’s conviction for manslaughter before hiring him as a porter, the Gildins should not be subjected to liability, at the whim of a sympathetic jury, for criminal acts committed by Taylor approximately 27 years after his conviction and 18 years after he was hired.

We observe in this regard that Correction Law § 753 (1) (a) provides: "The public policy of this state, as expressed in this act, [is] to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” Correction Law § 752 prohibits an employer who has 10 or more employees from denying employment to a person on the basis of his having been convicted of one or more criminal offenses [228]*228unless "(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or (2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” (See also, Executive Law § 296 [15].)

In Soto-Lopez v New York City Civ. Serv. Commn. (713 F Supp 677 [SD NY 1989]) Judge Owen considered whether article 23-A of the Correction Law permitted the City to deny a position of housing caretaker to an applicant who had been convicted of manslaughter nine years previously. His cogent analysis of the issue demonstrates that the Gildins’ hiring of Taylor was consistent with the law and public policy of this State (713 F Supp, supra, at 678-679):

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Waterbury v. New York City Ballet, Inc.
2022 NY Slip Op 02890 (Appellate Division of the Supreme Court of New York, 2022)
Sandoval v. Leake & Watts Servs., Inc.
2020 NY Slip Op 08017 (Appellate Division of the Supreme Court of New York, 2020)
Gonzalez v. City of the New York
133 A.D.3d 65 (Appellate Division of the Supreme Court of New York, 2015)
Davidovici v. Fritzson
49 A.D.3d 488 (Appellate Division of the Supreme Court of New York, 2008)
Sandra M. v. St. Luke's Roosevelt Hospital Center
33 A.D.3d 875 (Appellate Division of the Supreme Court of New York, 2006)
T. W. v. City of New York
286 A.D.2d 243 (Appellate Division of the Supreme Court of New York, 2001)
Olson v. B & S Caring Associates, Inc.
271 A.D.2d 588 (Appellate Division of the Supreme Court of New York, 2000)
Kladstrup v. Westfall Health Care Center, Inc.
183 Misc. 2d 11 (New York Supreme Court, 1999)
Givens v. New York City Housing Authority
249 A.D.2d 133 (Appellate Division of the Supreme Court of New York, 1998)
Kenneth R. v. Roman Catholic Diocese
229 A.D.2d 159 (Appellate Division of the Supreme Court of New York, 1997)
Pratt v. Ocean Medical Care, P. C.
236 A.D.2d 380 (Appellate Division of the Supreme Court of New York, 1997)
Lemp v. Lewis
226 A.D.2d 907 (Appellate Division of the Supreme Court of New York, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
200 A.D.2d 224, 613 N.Y.S.2d 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-gildin-nyappdiv-1994.