In this this action, action, Federal Federal Express Express Corporation Corporation ("FedEx") ("FedEx") moves moves (Motion (Motion Seq. 2) to dismiss dismiss Gina Gina Lindor's Lindor's ("Plaintiff') ("Plaintiff') Amended Amended Complaint Complaint for failure failure to state state of of cause cause of of action action against against FedEx pursuant to FedEx pursuant CPLR CPLR 321 l(a)(?). Plaintiff 3211(a)(7). Plaintiff has has opposed opposed the the motion. motion. Additionally, Additionally, Plaintiff Plaintiff cross-moves cross-moves (Motion (Motion Seq. 3) to compel compel FedEx FedEx to appear appear for an EBT pursuant to CPLR EBT pursuant CPLR 3216. 3216. FedEx FedEx has has opposed opposed the motion. motion. Plaintiff Plaintiff commenced commenced this this action action on November November 20, 2020, to recover 20,2020, recover damages damages for personal personal injuries injuries sustained sustained during during an alleged alleged incident incident that that occurred occurred on or about about April April 18, 2019, 2019, at the premises owned the premises owned and maintained maintained by Mr. Stax Stax Inc. D/B/A D/B/A IHOP IHOP Restaurants, Restaurants, LLC LLC ("IHOP"), ("IHOP"), Georgetowne Georgetowne Center Center Brooklyn, Brooklyn, LLC LLC ("Georgetowne") ("Georgetowne") and and Forty-Six Nineteen Company, Forty-Six Nineteen Company, Inc. ("Forty-Six") ("Forty-Six") (Collectively (Collectively the the "Subject "Subject Premises"). In her Premises"). her Amended Amended Complaint, Complaint, Plaintiff Plaintiff alleges alleges that that on the date date of of the incident, incident, while while attempting attempting to exit the restaurant, restaurant, Plaintiff Plaintiff was was holding holding t~e door door open open when when an employee employee of FedEx negligently ofFedEx negligently attempted attempted to walk walk by her her in a fast and and unsafe unsafe manner manner and struck struck her her with with his body. body. Plaintiff Plaintiff also also alleges alleges that that as a result result of of the employee employee striking striking her, her, she let go of of the the door door which which then then swung back at an unsafe swung back unsafe speed speed and struck struck her her causing causing her her to fall to the ground. ground. A series series of of Compliance Compliance Conference Conference order order were were entered entered setting setting dates dates for EBTs, EBTs, with with a final order order directing EBTs to be completed directing EBTs completed in July July and Aust Aust of 2023. Plaintiffs of2023. Plaintiffs EBT EBT was July 7, 2023, held on July 2023, and IHOP's IHOP's EBT EBT was held held on August August 11, 2023. 2023. To date date FedEx's FedEx's EBT EBT remains remains outstanding. outstanding.
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In support support of of its motion, motion, FedEx FedEx argues argues that that Plaintiff's Plaintiffs Amended Amended Complaint Complaint should should be dismissed dismissed against against it for failure failure to state state a valid cause of valid cause of action action for negligence. negligence. FedEx FedEx asserts asserts that that on the the date date of of the alleged alleged incident, incident, that that it did did not not owe owe a duty duty of of care care to Plaintiff Plaintiff nor nor does does Plaintiff's Plaintiffs Amended Amended Complaint Complaint allege allege that that it owned, owned, maintained, maintained, managed, managed, controlled, controlled, or operated operated the the door door at the the Subject Subject Premises. Premises. FedEx FedEx contends contends that that while while there there may may be questions questions of of fact fact as to how how the the accident accident incident incident occurred, occurred, such such questions questions are irrelevant irrelevant since since Plaintiff Plaintiff has has failed failed to establish establish that that FedEx FedEx owed owed a duty duty of of care care to her. FedEx FedEx also also states states that that there there is no statutory, statutory, regulatory, regulatory, or contractual contractual relationship relationship between between Plaintiff Plaintiff and and FedEx FedEx or its employees, employees, therefore therefore there there is no privity privity or relationship relationship akin to privity privity between between the the parties parties for the the court court to impose impose a duty duty of of care care onto onto FedEx. FedEx. Plaintiff Plaintiff asserts asserts that that Plaintiff Plaintiff was was not not a passenger passenger of of George George Anderson Anderson ("Anderson"), ("Anderson"), the the FedEx FedEx employee, employee, nor nor was was she the the party party intended intended to receive receive the the package package he was was delivering delivering on the date date of of the the incident. incident. Therefore, Therefore, FedEx FedEx claims claims that that Plaintiff Plaintiff did did not not have have a reasonable reasonable expectation expectation that that its employee, employee, or anyone anyone else else for for that that matter, matter, would would have have held held open open the the door door for her her at the the Subject Subject Premises. Premises. FedEx FedEx contends contends that that Anderson's Anderson's conduct conduct was was reasonable reasonable and that that he exercised exercised reasonable reasonable attention attention and and case case based based on the the circumstances. circumstances. Additionally, Additionally, FedEx FedEx argues argues that that Plaintiff's Plaintiffs Amended Amended Complaint Complaint should should be dismissed dismissed against against it for failure failure to state state a valid valid cause cause of of action action for negligent negligent hiring, hiring, supervision, supervision, training, training, and/or and/or retention. retention. FedEx FedEx asserts asserts that that Plaintiff Plaintiff has has failed failed to allege allege that that FedEx FedEx knew knew or or should should have have known known of of Anderson's Anderson's propensity propensity to "improperly "improperly exit exit and and enter enter a premise premise while while delivering delivering packages," packages," and and that that it is required required that that Plaintiff Plaintiff explicitly explicitly allege allege that that an employer employer knew knew of of its employees' employees' harmful harmful propensities propensities and and that that it failed failed to take take necessary necessary actions actions which which caused caused damage damage to others, others, as required. required. Furthermore, Furthermore, FedEx FedEx states states that causes of that causes of action action for negligent negligent hiring, hiring, supervision, supervision, training training and/or and/or retention retention and and respondeat respondeat superior superior cannot cannot be asserted asserted simultaneously, simultaneously, and that that when when an employee employee is acting acting within within the the scope scope of of his or or her her employment, employment, that that the the employer employer is liable liable for the the tortious tortious acts acts under under the the theory theory of of respondeat respondeat superior, superior, therefore therefore Plaintiff Plaintiff cannot cannot proceed proceed with with a claim claim to recover recover damages damages for negligent negligent hiring, hiring, supervision, supervision, training, training, and/or and/or retention. retention. In support support FedEx FedEx submits submits an affidavit affidavit from Anderson. Anderson. In his affidavit, affidavit, Anderson Anderson states states that that on the date of date of the the incident, incident, he was was delivering delivering a package package to the the Subject Subject Premises, Premises, that that he had had delivered delivered packages packages to multiple multiple times times in the the past. past. Anderson Anderson claims claims that that he entered entered the the Subject Subject Premises Premises through through the the left left side exterior exterior door, door, which which he pulled pulled outwards, outwards, towards towards the parking lot and the parking and then proceeded to enter then proceeded enter the the restaurant. restaurant. Anderson Anderson states states that that he was was walking safe speed walking at a safe speed and that that he was was not looking down not looking down at his phone phone or any other other electronic device or package electronic device package scanner. scanner. Anderson Anderson claims claims that that Plaintiff Plaintiff did not not enter enter the the doorway doorway until after after he passed passed through that at no point through it and that point did he attempt attempt to push push past past her. Furthermore, Furthermore, Anderson Anderson asserts asserts that on the date date of of the alleged incident he did not alleged incident not make make any physical physical contact contact with with the Plaintiff, Plaintiff, nor did he hold the door hold door open her or let it shut open for her shut on her. Anderson Anderson contends contends that that he would would not not have have attempted attempted to hold
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the the door door open open for Plaintiff, Plaintiff, nor nor would would it have have been been possible possible because because his his hands hands were were visibly visibly occupied occupied carrying carrying the the package. package. In opposition, opposition, Plaintiff Plaintiff argues argues that that FedEx's FedEx's motion motion should be denied should be because the denied because the Amended Amended Complaint Complaint states states viable causes of viable causes of actions actions against against FedEx. FedEx. Plaintiff Plaintiff asserts asserts that that her her Amended Amended Complaint Complaint clearly clearly sets forth forth the the occurrences occurrences and and that that FedEx FedEx was was negligent negligent for the the actions actions of of its employee employee when when its employee employee was was acting acting within within the the scope scope of of his employment. employment. Plaintiff Plaintiff states states that that FedEx FedEx did did owe owe a duty duty to her her because because she was was struck struck by the the door door due due in part part to the the negligent negligent actions actions of FedEx's employee ofFedEx's employee and and that that once once an employee employee causes causes harm harm incidental incidental to his performance performance of of his duties, duties, there there is a breach breach of of duty duty that that FedEx FedEx should should be found found liable liable for. Additionally, Additionally, Plaintiff Plaintiff argues.that argues that she had plead a viable had plead viable cause cause of of action action for respondeat respondeat superior superior because because Anderson Anderson was was acting acting within within the the scope scope of of his employment employment when when he was was delivering delivering packages packages as part part of of his duties. duties. support of In support of her her opposition opposition Plaintiff Plaintiff submits submits her her EBT EBT testimony. testimony. In her her EBT, EBT, Plaintiff Plaintiff testifies testifies that that on the date date of of the the incident, incident, as she she reached reached the the ramp ramp attached attached to the the Subject Subject Premises, Premises, she she opened opened the the door door with with her her left left hand. hand. 1I Plaintiff Plaintiff testified testified that that a male male came came up from behind behind her her while while she was was still holding holding the door door and and that that he went went under under her her arm to go inside togo inside of of the the Subject Premises.2 2 As Subject Premises. As a result, result, Plaintiff Plaintiff testified testified that she let go of that of the the door door which which then then slammed her feet.33 slammed on her In support support of of her her motion motion to compel compel FedEx FedEx to appear appear for an EBT, EBT, Plaintiff Plaintiff argues argues that that its EBT EBT is necessary necessirry in light light of of the the denials denials det det forth forth by FedEx FedEx in its Answer Answer and and that that given given its failure failure to comply comply with with the the Compliance Compliance Conference Conference orders. orders. Plaintiff Plaintiff now now requests requests an order order compelling compelling FedEx FedEx to appear. appear. Plaintiff Plaintiff specifically specifically request request that that FedEx produce Anderson FedEx produce Anderson as he is the identified identified employee employee involved involved in the the alleged alleged incident. incident. In opposition, opposition, FedEx FedEx argues argues that that Plaintiff's cross-motion should Plaintiffs cross-motion should be denied denied as procedurally procedurally defective defective pursuant pursuant to Federal Rules of Federal Rules of Civil Civil Procedure Procedure 37(a)(l) 37(a)(1) because because the the motion motion fails fails to include include a certification certification that that the the movant movant has has in good good faith conferred conferred or attempted attempted to confer confer with with the the person person or or party party failing failing to make make disclosure disclosure or discovery in an effort or discovery effort to obtain obtain it without without court court action. action. FedEx FedEx states states that that Plaintiff Plaintiff has only only submitted submitted a defective defective Affirmation Affirmation in Good Faith in support Good Faith support of of her her motion motion and and that that Plaintiff Plaintiff lists the "numerous "numerous court court orders orders directing directing the the examination examination before before trial trial be completed" completed" as her her good good faith efforts, efforts, however however the the Affirmation Affirmation in Good Good Faith Faith fails fails to indicate indicate the the time, time, place, place, and and nature nature of of the the consultation consultation and and the the issues issues discussed discussed and and any resolutions as required. any resolutions required. FedEx FedEx contends contends that that Plaintiff Plaintiff has not not made made the the requisite requisite good good faith faith efforts efforts to scheduled scheduled FedEx's FedEx's EBT, EBT, and her her failure failure to do so is fatal to the underlying underlying motion. motion.
11 (Plaintiff (Plaintiff EBT; 26 lines lines 2-4). 2-4). 2 (Plaintiff 2 (Plaintiff EBT; EBT; 26 lines lines 5-9) 5-9) 3 (Plaintiff 3 lines 9-11). (Plaintiff EBT; 26 lines 9-11).
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When When a party party moves moves to dismiss dismiss a complaint pursuant to CPLR complaint pursuant CPLR 321 l(a)(7), 1(a)(7), the the standard standard is whether whether the pleading pleading states cause of states a cause of action, action, not not whether whether the proponent of the proponent of the pleading has the pleading has a cause cause of of action action (Leon (Leon at 88; Skefalidis Skefalidis v China Pagoda NY, Inc., 210 China Pagoda 210 A.D. AD. 3d 925 [2d Dept. Dept. 2022]); 2022)); Oluwo Oluwo v Sutton, Sutton, 206 206 A.D.3d AD.3d 750 [2d Dept. Dept. 2022]; 2022]; Sokol Sokol v Leader, Leader, 74 A.D.3d AD.3d 1180 [2d Dept. Dept. 2010]). 2010)). Whether Whether a plaintiff plaintiff can ultimately can ultimately establish establish its allegations allegations is not part of not part of the the calculus calculus in determining determining a motion motion to dismiss dismiss (Eskridge (Eskridge v Diocese Diocese of Brooklyn, 210 of Brooklyn, 210 A.D.3d AD.3d 1056 [2d Dept. Dept. 2022]; 2022]; Zurich American Insurance Zurich American Insurance Company Company v City City of New York, of New 176 A.D.3d AD.3d 1145 [2d Dept. Dept. 2019]; EBC I Inc. v Goldman, 2019]; EBC Goldman, Sachs Sachs & Co., 5 NY3d NY3d [2005]). [2005)). On a motion motion made made pursuant pursuant to CPLR CPLR 321 l(a)(7) to dismiss 3211(a)(7) dismiss a complaint, complaint, the the burden burden never never shifts shifts to the the non-moving party to non-moving party to rebut rebut a defense defense asserted asserted by the the moving moving party party (Sokol (Sokol at 1181; Rove/lo v Orofino 1181; Rovello Orofino Realty Co. Realty CO. Inc., 40 NY2d NY2d 970 970 [1976]). [1976)). CPLR CPLR 3211 allows allows a plaintiff plaintiff to submit submit affidavits, affidavits, but but it does does not not oblige oblige him or her penalty of her to do so on penalty of dismissal dismissal (Id.; Sokol Sokol at I1181). 181). Affidavits Affidavits may may be received received for a limited limited purpose purpose only, only, serving serving normally normally to remedy remedy defects defects in the complaint complaint and and such affidavits affidavits are not to be examined examined for the purpose purpose of of determining determining whether whether there there is evidentiary evidentiary support support for the pleading (Id.; Rovello the pleading Rovello Nonon at 827). at 635; Nonon 827). Thus, Thus, a plaintiff plaintiff will will not not be penalized penalized because because he has has not not made made an evidentiary evidentiary showing showing in support support of of its complaint. complaint. Unlike Unlike on a motion motion for summary judgment, where summary judgment, where the the court court searches searches the the record record and and assesses assesses the the sufficiency of sufficiency of evidence, evidence, on a motion motion to dismiss, dismiss, the court court merely merely examines examines the the adequacy adequacy of of the pleadings the pleadings (Davis (Davis v. Boeheim, 24 NY3d v. Boeheim, NY3d 262, 262, 268 268 (2014]). [2014)). The The appropriate appropriate test test of of the the sufficiency sufficiency of of a pleading pleading is whether whether such pleading gives such pleading gives sufficient sufficient notice notice of of the the transactions, transactions, occurrences, occurrences, or or series series of of transactions transactions or occurrences occurrences intended intended to be proved proved and and whether whether the requisite elements of requisite elements of any any cause cause of of action action known known to our our law can be discerned discerned from from its averments averments (V. Groppa Pools, Inc. v. Massello, Groppa Pools, Massello, 106 AD3d AD3d 722, 722, 723 [2d Dept Dept 2013]; Moore vJohnson, 2013]; Moore v Johnson, 147 AD2d AD2d 621 [2d Dept Dept 1989]). 1989)). However, However, "[w]here "[w]here a court court considers considers evidentiary evidentiary material in determining material determining a motion motion to dismiss dismiss a complaint complaint pursuant pursuant to CPLR CPLR 3211 3211 (a)(7), (a)(7), but but does does not not convert convert the motion motion into into one one for summary judgment, the summary judgment, the criterion criterion becomes becomes whether whether the the plaintiff plaintiff has cause of has a cause of action, action, not not whether whether the plaintiff has the plaintiff has stated stated one, one, and unless unless the the movant movant shows shows that that a material material fact fact as claimed claimed by the plaintiff is not a fact at all and plaintiff and no significant significant dispute dispute exists exists regarding regarding the the alleged alleged fact, fact, the the complaint complaint shall shall not be dismissed" dismissed" (Langley (Langley v Melville Melville Fire Fire Dist., Dist., 213 AD3d AD3d 748, 748, 750 750 [2d Dept Dept 2023]; 2023]; see Guggenheimer Guggenheimer v Ginzburg, 43 NY2d Ginzburg, NY2d 268 268 [1977]; McCarthy v County [1977]; McCarthy County of Nassau, 230 of Nassau, 230 AD3d AD3d 485 [2d Dept. Dept. 2024]; 2024];];]; Recine Recine Recine, 201 AD3d v Recine, AD3d 827 [2d Dept. Dept. 2022]; Borrerro v Haks 2022]; Borrerro Haks Group Inc., 165 AD3d Group Inc., AD3d 1216 [2d Dept. Dept. 2018]). 2018)). "Affidavits submitted "Affidavits submitted by a defendant defendant "will "will almost almost never never warrant warrant dismissal dismissal under under CPLR CPLR 3211 unless unless they they establish establish conclusively conclusively that that [the plaintiff] has [the plaintiff] cause of has no ... cause of action" action" (Langley (Langley at 750; Lawrence v Miller, 750; Lawrence Miller, 11 11 NY3d 588 [2008]). NY3d [2008)). To plead plead a cause cause of of action action for negligence, negligence, a plaintiff plaintiff must must allege allege (I) (1) a duty duty owed owed by the the defendant defendant to the plaintiff, (2) a breach the plaintiff, breach thereof, thereof, and and (3) injury proximately resulting injury proximately resulting therefrom (Solomon by therefrom (Solomon by Solomon Solomon
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City of v City of New N.Y2d 1026 [1985]). New York, 66 N.Y2d Conduct is considered [1985]). Conduct considered negligent tends to subject when it tends negligent when subject another to an unreasonable another unreasonable risk of harm risk of one or more arising from one harm arising particular foreseeable more particular hazards (Borrerro foreseeable hazards (Borrerro at 1217). Because Because a finding finding of of negligence negligence must based on the must be based of a duty, breach of the breach question in threshold question duty, a threshold tort cases tort cases is whether whether the the alleged tortfeasor owed alleged tortfeasor of c~e owed a duty of the injured care to the party (Espinal injured party Melville Snmv (Espinal v Melville Snow Contractors, Inc., Contractors, Inc., 98 NY2d [2002]; Morrison NY2d 136 [2002]; New York Morrison v New York Archdiocese, AD3d 703, 227 AD3d Archdiocese, 227 703, 704 Dept 704 [2d Dept 2024]; 2024); see also also Moore Charitable Foundation Moore Charitable Partners, Inc., PJT Partners, Foundation v PJT NY3d 150 [2023]; Inc., 40 NY3d Darby v [2023]; Darby Compagnie National Air Compagnie National NY2d 343 [2001]). France, 96 NY2d Air France, [2001]). While courts resolve While courts duty questions legal duty resolve legal resorting to common questions by resorting concepts of common concepts morality, logic of morality, logic and consideration of the consideration of consequences of social consequences the social imposing the of imposing duty (Tenuta the duty (Tenuto v Lederle Labs., Div. of Lederle Labs., Am. of Am. Cyanamid Co., 90 NY2d Cyanamid NY2d 606 [1997]; Santoro 606 [1997]; Poughkeepsie Crossings, Santoro v Poughkeepsie LLC, 180 AD3d Crossings, LLC, Dept. AD3d 12 [2d Dept. 2019]; Marshall 2019); Marshall v Rosenberg, Rosenberg, 196 AD3d Dept. 2021 AD3d 817 [3d Dept. 2021]), determining whether ]), in determining duty exists, whether a duty exists, despite often despite often sympathetic particular case facts in a particular sympathetic facts case before them, courts before them, courts must mindful of must be mindful of the precedential, the precedential, and consequential, consequential, future future effects of their effects of rulings, and limit their rulings, legal consequences the legal limit the wrongs to a of wrongs consequences of controllable degree controllable City of (Lauer v City degree (Lauer of New NY2d 95 [2000]; New York, 95 NY2d Landon v Kroll [2000]; Landon Specialists, Laboratory Specialists, Kroll Laboratory Inc., Inc., 91 AD3d AD3d 79 [2d Dept. 2011]; Dept. 201 Beadell v Eros !]; Beadell Management Realty, Eros Management LLC, 229 Realty, LLC, AD3d 43 (1st 229 AD3d Dept. [1st Dept. 2024]). 2024 ]). The The general general duty duty of of care negligence action care in a negligence individual "to requires an individual action requires use that "to use degree of that degree care of care that a reasonably that prudent person reasonably prudent person would the same under the have used under would have circumstances (Gutkina same circumstances (Gutkina v Max Media & Afw: Media
Art, Art, LLC, LLC, 227 [2D Dept. ad3D 961 [2D 227 ad3D 2024]; Borrerro Dept. 2024]; such a duty Additionally, such Borrerro at 1217). Additionally, duty may arise only may arise only where where there there is a relationship between defendant either between relationship either third-person tortfeasor and a third-person defendant and encompasses that encompasses tortfeasor that defendant's actual defendant's of the control of actual control third person's the third actions, or between person's actions, defendant and plaintiff between defendant that requires plaintiff that requires defendant to protect defendant protect plaintiff the conduct plaintiff from the of others conduct of (Morrison at 704; others (Morrison Matter of 704; Matter New York of In re New City York City Asbestos Asbestos Litig., Litig., 5 NY3d [2005]; quoting 486, 493 (2005); NY3d 486, quoting Hamilton US.A. Corp., Beretta US.A. Hamilton v Beretta 222, 233 NY2d 222, Corp., 96 NY2d [2001]). [2001 ]). However, However, the the courts courts have have repeatedly emphasized that repeatedly emphasized the foreseeability that the of harm foreseeability of alone does harm alone not does not define duty, define duty, rather merely determines rather it merely the scope determines the of the duty scope of once it is determined duty once (see Smith exist (see determined to exist Smith v Dutchess Dutchess Motor Motor Lodge, Lodge, 213 AD3d 2023); citing Dept. 2023]; AD3d 881 [2d Dept. citing Puika NY2d 781 (1976]; Edelman, 40 NY2d Puika v Edelman, [1976]; Santoro Santoro at 18). Consequently, "absent a duty Consequently, "absent directly to the running directly duty running person there injured person the injured liability can be no liability there can damages, however in damages, however careless careless the conduct or the conduct (Moore Charitable harm" (Moore foreseeable the harm" or foreseeable Charitable Foundation P.JT Foundation v PJT Partners, Partners, Inc., Inc., 40 NY3d [2023]; 532 Madison NY3d 150 [2023]; Ave. Gourmet Madison Ave. Foods, Inc. v Finlandia Gourmet Foods, Inc., 95 Center, Inc., Finlandia Center, 280 [2001 NY2d 280 NY2d ]). [2001]). Here, Here, the court finds the court finds that that Plaintiff Plaintiff has failed sufficiently establish failed to sufficiently threshold showing establish a threshold FedEx that FedEx showing that or its employees employees owed owed a duty duty to her. Plaintiffs Amended her. Plaintiffs Amended Complaint plead that fails to plead Complaint fails that a relationship existed relationship existed between between herself and FedEx herself and FedEx that that would would have imputed or imposed have imputed duty onto imposed a duty Plaintiff from any protect Plaintiff onto it to protect risk of risk harm. of harm.
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Accordingly, Accordingly, that that branch branch of motion seeking FedEx's motion of FedEx's dismissal of seeking dismissal Plaintiffs negligence of Plaintiffs of cause of negligence cause granted. action is granted. action To plead plead a cause cause of of action based on negligent action based retention, supervision, hiring, retention, negligent hiring, supervision, and/or of an training of and/or training employee, employee, it must must allege allege that that an employer knew or should employer knew have known should have of an employee's known of of the propensity of employee's propensity conduct conduct which which caused caused the accident (see the accident Brophy v Big (see Brophy Bros. Big Big Bros. Sisters of Big Sisters of Am., Inc., 224 Am., Inc., AD3d 866 [2d 224 AD3d Dept. Dept. 2024]; 2024); quoting quoting Fuller Fuller v Family Family Servs. Of Westchester, Servs. Of Westchester, Inc., 209 AD3d Inc., 209 2022)). Dept. 2022]). AD3d 983 [2d Dept. Generally, where Generally, employee is acting where an employee acting within the scope within the her employment, of his or her scope of employment, the employer is liable the employer liable under under the the doctrine doctrine of of respondeat respondeat superior claim may superior and no claim proceed against may proceed the employer against the theory under a theory employer under of negligent of negligent hiring, hiring, retention, supervision (S. retention, or supervision W. v Catskills (S W. Regional Medical Catskills Regional AD3d 890 [2d Center, 211 AD3d Medical Center, Dept. Dept. 2022]; 2022); Quiroz Quiroz v Zottola, AD3d 1035 [2d Dept. Zottola, 96 AD3d Talavera v Arbit, 2012); Talavera Dept. 2012]; Dept. AD3d 738 [2d Dept. Arbit, 18 AD3d 2005]; Weinberg Weinberg v The Cuttman Cuttman Breast Diagnostic Institute, Breast & Diagnostic AD 213 [1st 254 AD Institute, 254 Dept. 1998)). [1st Dept. 1998]). Under Under the the doctrine doctrine of of respondeat superior, an employer respondeat superior, vicariously liable may be vicariously employer may tortious the tortious liable for the acts acts of of its employees employees only only if if those those acts were committed acts were furtherance of committed in furtherance the employer's of the business and employer's business within and within the scope of the scope of employment (N.X v Cabrini employment (N.X Cabrini Medical Center, 97 NY2d Medical Center, 24 7 [2002); NY2d 247 [2002]; Browne Lyft, Inc., Browne v Lyjt, 219 Inc., 219 AD3d AD3d 445 [2d Dept Dept 2023]). 2023)). Pursuant this doctrine, Pursuant to this respondeat superior claim for respondeat doctrine, a claim premised on must be premised superior must a tort committed by tort committed by an employee furtherance of employee in furtherance the employer's of the business (Sandra employer's business Luke's (Sandra M v St. Luke's Roosevelt Roosevelt Hosp. Center, 33AD Hosp. Center, Dept. 2006]; 33AD 875 [2d Dept. Browne at 446; 2006); see Browne citing Judith 446; citing ofCharity Sisters of Judith M v Sisters Charity Hosp., Hosp., 93 NY2d 932 [1999); NY2d 932 [1999]; Riviello Riviello v Waldron, Waldron, 47 NY2d [1979]). An employee's 297 [1979)). NY2d 297 within actions fall within employee's actions the the scope scope of of employment employment where where the purpose in performing the purpose such actions performing such further the actions is to further interest, employer's interest, the employer's or to carry carry out out duties duties incumbent incumbent upon the employer's furthering the employee in furthering upon the employee employer's business (Browne at 446; business (Browne citing citing Montalvo Montalvo c Episcopal Health Services, Episcopal Health AD3d 1357 [2d Dept. Inc., 172 AD3d Services, Inc., 2019)). Dept. 2019]). With With respect respect to FedEx, FedEx, paragraph paragraph 32 of Plaintiffs Amended of Plaintiffs does not Complaint does Amended Complaint state a explicitly state not explicitly cause cause of of action action for for negligent negligent hiring, retention, supervision, hiring, retention, supervision, and/or training but and/or training alleges inter but alleges alia that inter alia FedEx: that FedEx: "failed "failed to use use due due care and diligence; care and properly train failed to properly diligence; failed employees train its employees on how how to exit exit and enter a premise and enter which they were dropping off premise in which they were dropping off packages; packages; hadhad an employee look down employee look other device phone or other down at his phone while device while walking walking forward, forward, thus thus not paying attention not paying who was person who attention to a person directly in was directly front of him and in plain front of struck the Plaintiff view; struck the Plaintiff when plain view; when she was lawfully was lawfully attempting attempting to leave the premise; leave the attempted to exit negligently attempted premise; negligently exit the premise, the premise, thus thus striking striking the the Plaintiff; walked at an unsafe Plaintiff; walked not paying speed, not unsafe speed, attention, paying attention, and struck and struck thethe Plaintiff Plaintiff with with such force she was was knocked knocked from from her feet; her failed to observe failed observe the the Plaintiff; reasonable manner; and failed to act in a reasonable Plaintiff; failed manner; were were otherwise otherwise careless negligent." and negligent." careless and
Here, since the Here, since the allegations allegations in Plaintiffs Plaintiffs Amended not support Complaint do not Amended Complaint cause of support a cause tortious action for tortious of action conduct conduct by FedEx's FedEx's employee, employee, the the claim negligent hiring, claim for negligent supervision, and/or retention, supervision, hiring, retention, must training must and/or training (see Smith fail (see AD3d 596 [2016]; Smith v Watkins, 145 AD3d [2016]; Polgano AD3d 501 [2013); Christakos, 104 AD3d Polgano v Christakos, Salovin v [2013]; Salovin
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Orange Reagional Orange Reagional Med AD3d 1991 [3d Dept. etr., 174 AD3d Med Ctr., Similarly, since 2019]). Similarly, Dept. 2019]). since Plaintiff failed to Plaintiff failed sufficiently plead sufficiently tort cause plead a tort cause of part of action on the part of action FedEx's employee, ofFedEx's FedEx cannot employee, FedEx vicariously held vicariously cannot be held liable liable on a theory theory of of respondeat respondeat superior. superior. Therefore, that branch Therefore, that of FedEx's branch of motion seeking FedEx's motion of. dismissal of seeking dismissal Plaintiff Plaintiff'ss cause cause of of action action for negligent hiring, retention, negligent hiring, supervision, and/or retention, supervision, and/or training theory of training or theory vicarious of vicarious liability doctrine of under the doctrine liability under of respondeat superior is granted. respondeat superior granted. Accordingly, hereby, Accordingly, it is hereby, ORDERED, that ORDERED, that FedEx's FedEx's motion (Motion Seq. 2) to dismiss motion (Motion Plaintiff's Amended dismiss Plaintiffs Complaint as Amended Complaint against granted, and against it, is granted, further, and it is further, ORDERED, that ORDERED, that Plaintiffs Plaintiff's motion (Motion Seq. 3) to compel motion (Motion compel FedEx appear for FedEx to appear ~enied EBT is denied for an EBT as moot. moot. Issues Issues not not addressed addressed herein without merit herein are without moot. merit or moot. This constitutes This constitutes the order of and order decision and the decision the court. of the court.
Ingna Joseph l'fon. lngnd l1on. Supreme Court Supreme Court Justice Justice
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