You are here: / / DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO...
, ,

DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO RECORD PLAINTIFF IN A CHANGING ROOM; THE NEGLIGENT HIRING CAUSE OF ACTION, BASED ON THE ALLEGATION THE STORE DID NOT CONDUCT A BACKGROUND CHECK BEFORE HIRING THE EMPLOYEE, SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant clothing store (Gap) was entitled to summary judgment dismissing the negligent-hiring-supervision complaint. Plaintiff alleged a store employee, Medel, attempted to record her on a cell phone as she was changing in a fitting room. The negligent hiring cause of action alleged Gap did not do a background check before hiring Medel, which was alleged to have been in violation of store policy:

The Supreme Court erred in denying those branches of the store defendants’ motion which were for summary judgment dismissing the causes of action alleging negligent hiring, training, supervision, and retention insofar as asserted against them. “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … . Here, the submissions of the store defendants in support of their motion demonstrated, prima facie, that they did not have notice of any propensity of Medel to commit misconduct … .

In opposition, the plaintiff failed to raise a triable issue of fact as to whether Gap or Old Navy knew or should have known that Medel had a propensity to commit misconduct … . The plaintiff’s contention, via the affidavit of her expert, that neither Gap nor Old Navy appeared to have conducted a background check prior to hiring Medel, as was their apparent internal policy before hiring any employees, is without merit. “There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Moreover, the plaintiff failed to submit any evidence that a background check of Medel would have revealed a propensity to commit misconduct … . Hashimi v Gap, Inc., 2024 NY Slip Op 05961, Second Dept 11-27-24

Practice Point: A negligent hiring cause of action based on the allegation the employer did not conduct a background check, without more, will not survive a motion to dismiss. Plaintiff must demonstrate the employer knew of facts which should have triggered a background check.

 

You might also like
AFTER THE FORECLOSURE SALE BUT BEFORE THE CLOSING, THE MORTGAGOR STARTED AN ACTION ALLEGING FRAUD IN THE FORECLOSURE PROCEEDINGS; THE FRAUD ACTION DID NOT RENDER THE TITLE UNMARKETABLE SUCH THAT THE PURCHASER COULD SET ASIDE THE FORECLOSURE SALE AND HAVE THE DOWN PAYMENT RETURNED (SECOND DEPT).
PLAINTIFF FELL THROUGH PLANKING WHICH DID NOT ADEQUATELY PROTECT A SHAFT OPENING; THE FACT THAT PLAINTIFF’S FOREMAN INSTRUCTED PLAINTIFF NOT TO ENTER THE SHAFT SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO SUMMARY JUDGMENT ON A LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS.
NO FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS RELIED UPON BY THE REFEREE WAS LAID; THE REFEREE RELIED ON UNIDENTIFIED AND UNPRODUCED RECORDS; THE JUDGMENT OF FORELCOSURE SHOUILD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Changing Custody Arrangement Entered Into by Agreement
AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.
AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD NOT HAVE TREATED THE MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION WITHOUT NOTIFYING THE PARTIES (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S AFFIDAVIT DID NOT STATE IT WAS BASED ON FIRST-HAND KNOWLEDGE... THE ERRORS MADE IN THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE WERE NOT MADE...