You are here: / / DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND...
, ,

DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND AND CHOKED HIM; WHETHER THE DINER DEFENDANTS ARE VICARIOUSLY LIABLE DEPENDED UPON WHETHER THE SECURITY GUARD WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ASSAULT; THE FAILURE TO PROVIDE THE JURY WITH AN INTERROGATORY ON THE SCOPE-OF-EMPLOYMENT QUESTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing the denial of defendants’ motion to set aside the verdict and ordering a new trial, held the jury should have been instructed to determine whether the security guard (Vetell) who assaulted plaintiff was acting within the scope of his employment at the time of the assault. Apparently plaintiff left the defendant diner to get money at an ATM to pay the bill. When he retuned to the diner, the security guard knocked him to the ground and choked him:

… Supreme Court erred in denying the appellants’ counsel’s request to ask the jury to determine whether Vetell was acting within the scope of his employment when he attacked the plaintiff. The interrogatories that were given to the jury made it possible for the jury to find the appellants liable for Vetell’s acts based only on his being a special employee without determining that he was acting within the scope of his employment when he attacked the plaintiff. Since a determination that Vetell was acting within the scope of his employment is a necessary element to render the appellants vicariously liable for his acts, the court should have added the requested interrogatory to the verdict sheet … . Eaton v Fiotos, 2025 NY Slip Op 03553, Second Dept 6-10-25

Practice Point: Whether an employer is vicariously liable for the actions of an employee depends upon whether the employee’s conduct was within the scope of employment. Here the failure to so instruct the jury required a new trial.​

 

You might also like
Property Owners, Absent a Regulation, Do Not Have a Duty to Make Sure Vegetation Does Not Obstruct Drivers’ View/Here the Cited Code Violations Were Not Intended to Impose that Duty
THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​
BENEFICIARIES OF ESTATE DID NOT HAVE STANDING TO BRING AN ACTION TO PRESERVE AN ESTATE ASSET, ONLY THE PERSONAL REPRESENTATIVE OF THE ESTATE HAS THAT POWER.
THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).
PLAINTIFF IN THIS FORECLOSURE ACTION TIMELY COMMENCED THE ACTION PURSUANT TO THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS PROVIDED BY CPLR 205-A (SECOND DEPT). ​
IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).
ALTHOUGH THE INFORMANT WHO CALLED 911 ABOUT A “MAN WITH A GUN” WAS KNOWN TO THE POLICE AND MAY BE PRESUMED TO BE RELIABLE, THERE WAS NO TESTIMONY AT THE SUPPRESSION HEARING ABOUT THE BASIS FOR THE INFORMANT’S KNOWLEDGE; THEREFORE THE PEOPLE DID NOT PROVE THE POLICE HAD REASONABLE SUSPICION TO STOP THE DEFENDANT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

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

THE SUPREME COURT’S PART RULES REQUIRED PLAINTIFF TO FIRST CONFERENCE... THE ACCOMPANYING AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY...