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THE BUILDING MANAGING AGENT, WHO HIRED PEREZ, THE BUILDING SUPERINTENDENT, WAS NOT OBLIGATED TO DETERMINE WHETHER PEREZ, A REGISTERED SEX OFFENDER, HAD A CRIMINAL RECORD; THE BUILDING OWNER AND MANAGING AGENT, THEREFORE, WERE NOT LIABLE UNDER A NEGLIGENT HIRING AND RETENTION THEORY OR A RESPONDEAT SUPERIOR THEORY FOR PEREZ’S SEXUAL ASSAULT ON INFANT PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner, Carpenter, and managing agent, Lemle, could not be held liable for the sexual assault on infant plaintiff by Perez, the building superintendent. The managing agent, who hired Perez, was not under an obligation to determine whether Perez, a registered sex offender, had a criminal record:

Carpenter hired managing agents, who employed Perez. Lemle was the managing agent on the relevant date. However, no issue of fact exists as to whether Lemle can be held liable for Perez’s negligent hiring or retention because the record is devoid of evidence that Lemle had knowledge of Perez’s propensity to commit a violent act … . The fact that Perez was a registered sex offender does not avail plaintiffs, as, in the absence of knowledge of any facts that would cause a reasonable person to question a person’s background, an employer is under no duty to inquire whether an employee has been convicted of a crime … . The imposition of such a duty is a matter for the Legislature. There is no evidence that, prior to the incident in question, Perez ever did anything that should have indicated to his employer that he had a propensity to commit sexual abuse or any other crimes. Further, that Perez falsified identification records that he submitted for payroll purposes is of no moment, since the paperwork on its face would not have caused a reasonable person to question its veracity. Nor can Lemle be held vicariously liable for Perez’s conduct because the conduct was not in furtherance of Lemle’s business and was outside the scope of Perez’s employment … . Samoya W. v 3940 Carpenter Ave., LLC, 2020 NY Slip Op 06218, First Dept 10-29-20

 

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