THE FACT THAT THE EMPLOYER MAY BE VICARIOUSLY LIABLE FOR AN EMPLOYEE’S NEGLIGENCE, DOES NOT WARRANT DISMISSAL OF THE ACTION AGAINST THE EMPLOYEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee defendant should not have been granted summary judgment on the ground her employer (New Beginnings) was vicariously liable for the employee’s negligence. Allegedly, plaintiff was injured receiving a “facial treatment” from the employee (Wallace):

… [T]he doctrine of respondeat superior does not entitle Wallace to summary judgment dismissing the complaint insofar as asserted against her. “While an employer may be vicariously liable for the torts of its employee while acting within the scope of his or her employment, a claim against the employer does not necessarily preclude a separate claim against the employee” … . “It is ordinarily immaterial to an agent’s liability that the agent’s tortious conduct may, additionally, subject the principal to liability” (Restatement [Third] of Agency § 7.01[b]). “It is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent’s torts although the agent’s conduct may also subject the principal to liability” … . Castellazzo v David’s New Beginnings, LLC, 2026 NY Slip Op 02625, Second Dept 4-29-26

Practice Point: The fact that an employer may be vicariously liable for an employee’s negligence does not preclude a suit against both.