Lindor v. Mr. Stax Inc.

2024 NY Slip Op 34245(U)

Opinion

Lindor v Mr. Stax Inc. 2024 NY Slip Op 34245(U)

November 26, 2024

Supreme Court, Kings County Docket Number: Index No. 522491/2020 Judge: Ingrid Joseph

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 11/29/2024 10:24 AM INDEX NO. 522491/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 11/29/2024

At an IAS

lAS Part

Part 83 of

of the Supreme

Supreme Court

Court of

of the

State of State New York

of New York held

held in and

and for the County

County

of of Kings

Kings at 360

360 Ad~s

Ad~s Street,~ro9kl)fn.,~ew Stre~ro9kl)fn",1Sew

York, the % York, on the % day of of 0iJ~2024.

O<J~2024.

PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH,

JOSEPH, J.S.C.

J.S.C.

SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF

NEW YORK NEW YORK COUNTYCOUNTY OF KINGS KINGS ----------------------------------------------------------------------X ----------------------------------------------------------------------)( Index No: 522491/2020 Index 522491/2020

GINA GINA LINDOR, LIND OR, Motion Seq. 2-3 Motion Seq.

Plaintiff(s) Plaintiff(s)

-against- -against-

DECISION & ORDER DECISION ORDER

MR. STAX STA)( INCINC d/b/a

d/b/a IHOP

IHOP RESTAURANTS,

RESTAURANTS, LLC, LLC, FEDERAL FEDERAL EXPRESS E)(PRESS CORPORATION, CORPORATION,

GEORGETOWNE GEORGETOWNE CENTER CENTER BROOKLYN, BROOKLYN, LLC LLC and FORTY-SIX NINETEEN COMPANY, FORTY-SI)( NINETEEN COMPANY, INC., INC., Defendant(s) Defendant(s)

----------------------------------------------------------------------X ----------------------------------------------------------------------)( The The following

following e-filed papers read e-filed papers read herein:

herein: NYSCEF Nos.:

NYSCEF Nos.:

Notice of Notice of Motion/Affidavits Motion!Affidavits Annexed Annexed

Exhibits Annexed/Reply ......... ... Exhibits Annexed/Reply 56-67 56-67

Affirmation in Opposition/Affidavits Affirmation Opposition! Affidavits Annexed/Exhibits Annexed/Exhibits Annexed

Annexed ........... . 70-74 70-74

Notice of Notice of Motion/ Affidavits Annexed Motion/Affidavits Annexed Exhibits Annexed/Reply ......... ... Exhibits Annexed/Reply 75-82 75-82

Affirmation Affirmation in Opposition/Affidavits Opposition/Affidavits Annexed/Exhibits Annexed/Exhibits Annexed

Annexed ........... . 85

85

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.

5

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FILED: KINGS COUNTY CLERK 11/29/2024 10:24 AM INDEX NO. 522491/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 11/29/2024

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

6

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FILED: KINGS COUNTY CLERK 11/29/2024 10:24 AM INDEX NO. 522491/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 11/29/2024

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

I

i

_I

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