Salem v. MacDougal Rest. Inc.

2017 NY Slip Op 1832, 148 A.D.3d 501, 48 N.Y.S.3d 581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2017
• Docket: 3411 150418/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered June 21, 2016, which, inter alia, denied the motion of defendant MacDougal Restaurant Inc. d/b/a Off the Wagon (defendant) for summary judgment dismissing plaintiff’s re-spondeat superior claim as against it, unanimously affirmed, without costs.

Plaintiff was assaulted by a security guard/bouncer in the employ of defendant after plaintiff, who had been denied admittance to defendant’s bar because of perceived intoxication, grabbed the baseball cap from the bouncer’s head. Less than 30 seconds elapsed between plaintiff taking the cap and the bouncer throwing plaintiff to the ground, which occurred approximately 10 feet from the entrance to defendant’s bar. On this record, it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of his employment at the time of the assault (see e.g. Bilias v Gaslight, Inc., 100 AD3d 533 [1st Dept 2012], affg 2011 NY Slip Op 32700 [U] [Sup Ct, NY County 2011]).

Concur — Sweeny, J.P., Renwick, Mazzarelli and Manzanet-Daniels, JJ.