Glover v. Augustine

38 A.D.3d 364, 832 N.Y.S.2d 184

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2007
• Status: Published

Opinion

Orders, Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 4, 2006, which, to the extent appealed from, denied defendants-appellants ’ motion for summary judgment insofar as it sought dismissal of plaintiffs causes of action for negligent hiring and negligent premises security, and granted the motion of defendants-appellants’ insofar as it sought a psychological examination of plaintiff, unanimously affirmed, without costs.

Inasmuch as the evidence of record shows that defendants-appellants employed defendant Augustine as an elevator operator without conducting a background check, even though they were aware that he had been convicted of a felony, a triable issue is raised as to whether Augustine was negligently hired. Indeed, a routine check would have revealed that Augustine had a lengthy criminal record, including convictions for sexual abuse in the first degree, and that he was a registered sex offender. Under these circumstances, it is not possible to conclude as a matter of law that Augustine’s attack upon plaintiff, an office-worker in the building where Augustine was employed, was unforeseeable (see T.W. v City of New York, 286 AD2d 243, 245-246 [2001]; Brandt v Elghanayan, 242 AD2d 240 [1997]). Although defendants-appellants maintain that the negligent hiring cause of action must be dismissed because, pursuant to Correction Law § 752, they could not have denied Augustine employment by reason of his criminal convictions, that provision does not require employment involving “an unreasonable risk ... to the safety or welfare of specific individuals or the general public” (subd [2]) and there is, at the very least, an issue of fact as to whether Augustine’s hiring entailed such a risk (see T.W. v City of New York, 286 AD2d at 246).

Inasmuch as there are triable issues as to whether Augustine’s attack upon plaintiff was forseeable, defendants-appellants’ characterization of the attack as a sudden and spontaneous event for which they should not be held responsible, is unavailing as a basis for summary judgment (cf. Lindskog v Southland Rest., 160 AD2d 842 [1990]).

The court properly exercised its discretion in granting the request for a psychological examination of plaintiff. Plaintiff has claimed psychological injury from the attack and would not sustain cognizable prejudice by appearing for an examination (see Woods v Daniella Realty Corp., 15 AD3d 231 [2005]; May v American Red Cross, 282 AD2d 285 [2001]). Concur—Friedman, J.E, Buckley, Catterson and Malone, JJ.