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You are here: Home1 / Employment Law2 / DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT...
Employment Law, Negligence

DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ARM-WRESTLED WITH PLAINTIFF; THEREFORE THE EMPLOYER WAS NOT LIABLE FOR THE ALLEGED INJURY TO PLAINTIFF UNDER A RESPONDEAT SUPERIOR THEORY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s action against the owner of a defendant strip club for injuries incurred when plaintiff was arm-wrestling with defendant’s employee should have been dismissed. Defendant’s employee was not acting within the scope of his employment and defendant therefore could not be liable under a respondeat superior theory:

… [W]e conclude that defendants met their initial burden on the motion by establishing that the employee’s act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response … . The uncontroverted evidence submitted by defendants demonstrated that, although the employee had various responsibilities at the club, he was not required to entertain the club’s patrons, and he arm wrestled plaintiff out of personal motives unrelated to any of his job responsibilities … . Gehrke v Mustang Sally’s Spirits & Grill, Inc., 2020 NY Slip Op 00741, Fourth Dept 1-31-20

 

January 31, 2020
Tags: Fourth Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2020-01-31 14:24:322020-02-01 14:39:17DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ARM-WRESTLED WITH PLAINTIFF; THEREFORE THE EMPLOYER WAS NOT LIABLE FOR THE ALLEGED INJURY TO PLAINTIFF UNDER A RESPONDEAT SUPERIOR THEORY (FOURTH DEPT).
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PLAINTIFF WAS ACQUITTED OF CHARGES STEMMING FROM THE ALLEGED APPROPRIATION OF INSURANCE PROCEEDS DUE OTHER BENEFICIARIES AND THEN SUED TWO INSURANCE COMPANIES; THE CAUSES OF ACTION FOR BREACH OF CONTRACT, CONVERSION AND BREACH OF FIDUCIARY DUTY DID NOT ACCRUE UPON ACQUITTAL AND WERE THERFORE TIME-BARRED (FOURTH DEPT).
DEFENDANT CLAIMED IN HIS DEPOSITION HE COULDN’T STOP AT THE RED LIGHT BECAUSE THE FLOOR MAT HAD ROLLED UP UNDER THE BRAKE PEDAL; PLAINTIFF SUBMITTED THE DEPOSITION AS PART OF PLAINTIFF’S SUMMARY JUDGMENT MOTION; THE MAJORITY HELD THE DEPOSITION WAS HEARSAY AND THEREFORE COULD NOT DEFEAT SUMMARY JUDGMENT; TWO DISSENTERS ARGUED THE USUAL HEARSAY RULES DID NOT APPLY BECAUSE THE DEPOSITION WAS SUBMITTED BY PLAINTIFF (FOURTH DEPT).
Erroneous Admission of Evidence of Specific Prior Crimes and Bad Acts Required Reversal
ONE OF MOTHER’S CHILDREN OPENED A LOCKED WINDOW, TOOK OUT THE SCREEN AND DROPPED HIS SIBLING TWO STORIES WHILE MOTHER WAS HOME; MOTHER COULD NOT HAVE FORESEEN THE INCIDENT; THE NEGLECT FINDING WAS REVERSED (FOURTH DEPT).
NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED IN THIS OUT-OF-STATE ASBESTOS-RELATED INSURANCE ACTION, THE NONPARTY HAD BEEN EMPLOYED BY THE INSURER AND MAY POSSESS RELEVANT KNOWLEDGE ABOUT HOW THE INSURANCE POLICIES WERE INTERPRETED AND ENFORCED (FOURTH DEPT).
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PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).

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