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NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED.

The Fourth Department, over a two-justice dissent, determined motions for summary judgment in this contract-interpretation case were properly denied. The contract at issue was an operating agreement for plaintiff limited liability company. Both the majority and the dissent found the contract language ambiguous. The majority concluded reference to extrinsic evidence was necessary, precluding summary judgment. The dissent argued plaintiffs had shown their interpretation was the only fair interpretation:

“It is well settled that a contract must be read as a whole to give effect and meaning to every term . . . Indeed, [a] contract should be interpreted in a way [that] reconciles all [of] its provisions, if possible’ ” … . Therefore, “[e]ffect and meaning must be given to every term of the contract . . . , and reasonable effort must be made to harmonize all of its terms” … . It is equally well settled that “[t]he interpretation of an unambiguous contractual provision is a function for the court . . . , and [t]he proper inquiry in determining whether a contract is ambiguous is whether the agreement on its face is reasonably susceptible of more than one interpretation . . . To be entitled to summary judgment, the moving party has the burden of establishing that its construction of the [contract] is the only construction [that] can fairly be placed thereon” … .

Here, neither party established that its interpretation of the Agreement is the only reasonable interpretation thereof … . Consequently, summary judgment is inappropriate at this juncture because a “determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence” … . Maven Tech., LLC v Vasile, 2017 NY Slip Op 00840, 4th Dept 2-3-17

 

CONTRACT LAW (NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED)/AMBIGUOUS CONTRACT TERMS (NO DEMONSTRATION A PARTICULAR INTERPRETATION OF AN AMBIGUOUS CONTRACT WAS THE ONLY FAIR INTERPRETATION; THEREFORE MOTIONS FOR SUMMARY JUDGMENT WERE PROPERLY DENIED)

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TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY; MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR.

The Fourth Department determined a citizen taxpayer’s declaratory judgment action against the state, claiming that the transfer of land to a trust pursuant to the Oneida Settlement Agreement ceded the state’s taxation authority, was properly rejected. The court noted that when a motion to dismiss a declaratory judgment action is made, the court will treat it as a motion for a declaration in the defendant’s favor:

Plaintiff alleges that Section VI B (1-5) of the Agreement violates article XVI of the State Constitution, which prohibits the State from surrendering, suspending or contracting away its power of taxation. Section VI B (1-5) provides that the State will not oppose a future application by the Oneida Indian Nation (Nation) to transfer to the United States up to 12,366 acres of land to be held in trust pursuant to 25 USC § 5108 (formerly § 465). The land at issue was formerly part of the 300,000-acre reservation, which was established in the 1788 Treaty of Fort Schuyler (see City of Sherrill, N.Y. v Oneida Indian Nation of N.Y., 544 US 197, 203), and which the Nation has reacquired through open-market transactions (see id. at 211). In 2008, the United States Secretary of the Interior accepted the transfer into trust of 13,004 acres of reacquired land owned by the Nation, over defendant’s objection. We conclude that the court properly declared that Section VI B (1-5) does not violate the State constitutional provision prohibiting defendant from surrendering or contracting away its power of taxation. * * *

To the extent that plaintiff contends that Executive Law § 11 and Indian Law § 16 violate article XVI of the State Constitution, we reject that contention. Kaplan v State of New York. 2017 NY Slip Op 00766, 4th Dept 2-3-17

 

CONSTITUTIONAL LAW (STATE) (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/INDIAN LAW (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/CIVIL PROCEDURE (DECLARATORY JUDGMENT, (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/DECLARATORY JUDGMENT (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)

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SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS, CRITERIA EXPLAINED.

The Fourth Department determined there was no basis for the award of attorney’s fees and costs to the defendants in this deed/adverse possession action. After two appeals and a trial, the defendants prevailed:

We agree with plaintiff that Supreme Court improperly awarded counsel fees and litigation costs to defendants, and we therefore reverse. The general rule in New York is that litigants are required to absorb their own counsel fees and litigation costs unless there is a contractual or statutory basis for imposing them … , and “[t]here is neither a contractual nor a statutory basis for the award of [counsel] fees to [defendants] in this case” … . Furthermore, although a court may award counsel fees as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1, it may do so “only upon a written decision setting forth the conduct on which the award . . . is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded . . . to be appropriate” (22 NYCRR 130-1.2…). Here, defendants did not seek sanctions for frivolous conduct, and the court did not issue a written decision or make any finding that plaintiff or decedents engaged in such conduct. Furthermore, we conclude that the counterclaim seeking to recover counsel fees failed to state a cause of action inasmuch as defendants did not allege any proper basis upon which such fees would be recoverable. We therefore dismiss the counterclaims … . Perry v Edwards, 2017 NY Slip Op 00862, 4th Dept 2-3-17

ATTORNEYS (FEES, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)/ATTORNEYS FEES (SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)

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COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED; NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES; HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this dog bite case should have been granted. Plaintiff was a volunteer who walked dogs held at the county animal shelter. She was bitten by one of the dogs. There was no showing the shelter personnel were aware of the dog’s vicious propensities. The fact that the health department was aware the dog had bitten someone else in a prior incident was not imputed to the shelter personnel. The Fourth Department also held Supreme Court should not have denied the county’s motion to dismiss the negligence cause of action. Negligence does not lie in dog bite cases:

Contrary to plaintiff’s contention, the fact that shelter personnel may have been informed at the time of the dog’s surrender that the dog had previously knocked over a child is insufficient to raise an issue of fact as to the dog’s vicious propensities to bite. Although a tendency to knock a person over may reflect “a proclivity to act in a way that puts others at risk of harm” (Collier, 1 NY3d at 447), plaintiff’s injuries were not caused by the dog’s knocking her over, and the dog’s proclivity to do so, even if established, did not “result[] in the injury giving rise to the lawsuit”… .

We conclude that, under the circumstances of this case, any knowledge of that incident obtained by … [the] Health Department should not be imputed to the County or the shelter … . “A municipality often will have numerous employees assigned to separate and diverse agencies or departments” … , and the record demonstrates that there is no overlap in the respective scopes of authority of the Health Department and the shelter.

We further conclude that the court erred in denying the County’s motion with respect to plaintiff’s negligence cause of action. “[C]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” … . Blake v County of Wyo., 2017 NY Slip Op 00826, 4th Dept 2-3-17

 

ANIMAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/MUNICIPAL LAW (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/DOG BITES (COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED, NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES, HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL, NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE.

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the transit defendants in this bicycle-bus accident case. Plaintiff’s decedent was riding her bicycle when a car door opened in front of her. She struck the door and fell over into the path of a bus, which ran over her. Summary judgment was granted to the transit defendants under the emergency doctrine. However, the First Department held that evidence the bus driver’s vision to the side may have been blocked by standing passengers raised a question of fact about the applicability of the emergency doctrine:

Given the conflicting testimony in the record, including that there may have been passengers standing in front of the white line, which partially blocked the bus driver’s view as he passed the red light, it was error for the motion court to have determined the reasonableness of the bus driver’s response to the emergency situation presented, as a matter of law. This is an issue of fact that should be decided by a jury. Powers v Kyong Kwan Min, 2017 NY Slip Op 00716, 1st Dept 2-2-17

NEGLIGENCE (CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/BICYCLISTS (TRAFFIC ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/TRAFFIC ACCIDENTS (BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)/EMERGENCY DOCTRINE (NEGLIGENCE, BUS-BICYCLE ACCIDENT, CONFLICTING TESTIMONY RAISED QUESTION OF FACT ABOUT APPLICABILITY OF THE EMERGENCY DOCTRINE)

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EXCLUSION FOR INJURY DURING UNLOADING AN INSURED TRAILER APPLIED, EVEN THOUGH THE INJURY WAS CAUSED BY A DEFECT IN THE TRAILER.

The First Department determined an exclusion from plaintiff’s “Truckers Policy” issued to Truck-Rite was unambiguous. The policy excluded coverage for injury arising out of loading and unloading trailers covered by the policy. Plaintiff was unloading a trailer when the trailer’s lift gate collapsed. Despite the fact that the injury was caused by a defective part of the trailer, the injury was not covered by the policy:

“Policy exclusions are subject to strict construction and must be read narrowly, and any ambiguities in the insurance policy are to be construed against the insurer. However, unambiguous provisions of insurance contracts will be given their plain and ordinary meaning” … .

“In the context of a policy exclusion, the phrase arising out of is unambiguous, and is interpreted broadly to mean originating from, incident to, or having connection with'” … . To determine the applicability of an “arising out of” exclusion, the Court of Appeals had adopted a “but for” test … . This test is defined as follows “[I]f the plaintiff in an underlying action or proceeding alleges the existence of facts clearly falling within such an exclusion, and none of the causes of action that he or she asserts could exist but for the existence of the excluded activity or state of affairs, the insurer is under no obligation to defend the action”… .

Here, the underlying plaintiff’s accident occurred while he was unloading material from a shipping trailer, an activity clearly encompassed by the exclusion. The fact that his injury was allegedly caused by the defective nature of the trailer lift does not remove the injury from the policy exclusion. “[T]he focus of the inquiry is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained'” … . “[T]he phrase arising out of’ . . . requires only that there be some causal relationship between the injury and the risk for which coverage is provided” … . Such a causal relationship between the injury and exclusion clearly exists here and requires dismissal of the complaint. Country-Wide Ins. Co. v Excelsior Ins. Co., 2017 NY Slip Op 00718, 1st Dept 2-2-17

 

INSURANCE LAW (EXCLUSION FOR INJURY DURING UNLOADING AN INSURED TRAILER APPLIED, EVEN THOUGH THE INJURY WAS CAUSED BY A DEFECT IN THE TRAILER)/EXCLUSIONS (INSURANCE LAW, EXCLUSION FOR INJURY DURING UNLOADING AN INSURED TRAILER APPLIED, EVEN THOUGH THE INJURY WAS CAUSED BY A DEFECT IN THE TRAILER)

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NONMONETARY SETTLEMENT OF A SHAREHOLDERS’ CLASS ACTION SUIT APPROVED, NEW ANALYTICAL CRITERIA ANNOUNCED.

The First Department, in a full-fledged opinion by Justice Kahn, with a concurring opinion, reversing Supreme Court, determined a nonmonetary settlement of a shareholders’ class action suit should have been approved. The matter was sent back to determine appropriate attorneys’ fees. The opinion is too comprehensive to fairly summarize here. The court revisited the factors to be considered in analyzing nonmonetary settlements, adding two new factors to those announced in Woodrow v Colt Industries in 1990. This action involved the propriety of the purchase of Verizon Wireless by Verizon Communications:

The rise of nonmonetary class action settlements began in the 1980s and continued into the 1990s, when complaints of corporate misconduct in the context of mergers and acquisitions prompted calls for corporate governance reforms. Often, the perceived need for reform led to the commencement of litigation as a means to address the misfeasance, which would result in settlements with provisions for corporate governance reform or other forms of equitable relief, such as additional disclosures to shareholders in proxy statements, and would be accompanied by an award of reasonable attorneys’ fees to shareholders’ counsel. * * *

In the ensuing decades, however, the use of nonmonetary settlements became increasingly disfavored. Complaints arose that the remedies of “disclosure-only” and other forms of non-monetary settlements themselves proved problematic because they provided minimal benefits either to shareholders or to their corporations. Both courts and commentators came to view the shareholder class action in this context as a “merger tax” and as a cottage industry for the plaintiffs’ class action bar, used to force settlements of nonmeritorious suits and to generate exorbitant attorneys’ fees, causing waste and abuse to the corporation and its shareholders. * * *

… [W]e now refine our Colt standard of review to add to the five established factors to be used by courts to ensure appropriate evaluation of proposed nonmonetary settlements of class action suits these two additional criteria: whether the proposed settlement is in the best interests of the putative settlement class as a whole, and whether the settlement is in the best interest of the corporation. Gordon v Verizon Communications, Inc., 2017 NY Slip Op 00742, 1st Dept 2-2-17

 

CORPORATION LAW (NONMONETARY SETTLEMENT OF A SHAREHOLDERS’ CLASS ACTION SUIT APPROVED, NEW ANALYTICAL CRITERIA ANNOUNCED)/SHAREHOLDERS’ CLASS ACTIONS (NONMONETARY SETTLEMENT OF A SHAREHOLDERS’ CLASS ACTION SUIT APPROVED, NEW ANALYTICAL CRITERIA ANNOUNCED)/CLASS ACTIONS (SHAREHOLDERS, NONMONETARY SETTLEMENT OF A SHAREHOLDERS’ CLASS ACTION SUIT APPROVED, NEW ANALYTICAL CRITERIA ANNOUNCED)/NONMONETARY SETTLEMENTS (SHAREHOLDERS’ CLASS ACTIONS, NONMONETARY SETTLEMENT OF A SHAREHOLDERS’ CLASS ACTION SUIT APPROVED, NEW ANALYTICAL CRITERIA ANNOUNCED)

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HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT.

The First Department determined there was a question of fact whether plaintiff building owner waived a heating agreement, which was a covenant running with the land. The covenant obligated defendant to provide heat to plaintiff’s building as long as both buildings existed. The fact that the covenant required any waiver to be in writing was not dispositive. Oral waivers may be valid:

The motion court correctly concluded that the obligation undertaken by the previous owners of a building, currently owned by defendant, to provide steam heat to adjacent buildings, including one owned by plaintiff, as reflected in a written agreement between the previous owners of defendant’s building and the previous owners of the adjacent buildings (Heating Agreement), which was recorded in the Office of the City Register of the City of New York, is a covenant running with the land. Accordingly, it is binding on defendant so long as both buildings are in existence … . * * *

In this case, the agreement provides that “in the event the owner of any of said parcels [including plaintiff] shall elect to terminate and cancel this agreement with respect to said parcel, which election shall be made by written notice to the owner of Parcel I [currently, defendant], then this agreement shall end and terminate with respect to any such parcel as of . . . the date when notice of election to cancel is given.”

Plaintiff’s contention that this language precludes its waiver of the covenant by any means other than a writing is misplaced. “[A] contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance” … . Here, the record reflects that a representative of plaintiff orally advised a member of defendant’s coop board that plaintiff would install its own boiler to provide heat to its own building independently. Condor Funding, LLC v 176 Broadway Owners Corp., 2017 NY Slip Op 00719, 1st Dept 2-2-17

 

CONTRACT LAW (COVENANT RUNNING WITH THE LAND, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/CONTRACT LAW (WAIVER, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/REAL PROPERTY LAW (COVENANT RUNNING WITH THE LAND, HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)/COVENANT RUNNING WITH THE LAND (HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT)

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BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE.

The Second Department determined the trust beneficiaries were entitled to examine the trustee about matters relating to administration of the trust but not matters related to his appointment as trustee:

SCPA 2211(2) provides, in pertinent part, that “[t]he fiduciary may be examined under oath by any party to the proceeding either before or after filing objections, if any, to the account, as to any matter relating to his or her administration of the estate.” The Surrogate’s Court providently exercised its discretion in granting the trustee’s motion for a protective order pursuant to CPLR 3103 vacating a notice of deposition served upon him by the trust’s beneficiaries … to the extent of vacating so much of the notice of deposition as sought to examine him as to “the manner in which he and Donald J. Farinacci became or were nominated as successor trustees and Donald J. Farinacci renounced such appointment,” as those issues exceeded the scope of SCPA 2211(2) … . However, under SCPA 2211(2), the trust beneficiaries were entitled to examine the trustee under oath “as to any matter relating to his or her administration of the estate.” Accordingly, the court erred in vacating the entirety of the notice of deposition … . Matter of Jane D. Ritter Revocable Living Trust., 2017 NY Slip Op 00647, 2nd Dept 2-1-17

TRUSTS AND ESTATES (BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE)/SURROGATE’S COURT PROCEDURE ACT (BENEFICIARIES OF TRUST ENTITLED TO EXAMINE TRUSTEE ABOUT MATTERS RELATING TO ADMINISTRATION OF THE TRUST, BUT NOT APPOINTMENT OF THE TRUSTEE)

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WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION.

The Second Department, reversing Supreme Court, determined the negligent hiring and retention cause of action against a nursing home (Sunrise Manor) alleging improper care of a resident should have been dismissed. When it is alleged an employee acted within the scope of employment, the respondeat superior theory applies and a negligent hiring and retention cause of action will not lie:

Supreme Court should have granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the fourth cause of action, which was to recover damages for negligent hiring and retention, insofar as asserted against it. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” … . Here, in opposition to Sunrise Manor’s prima facie showing that its employees were acting within the scope of their employment, the plaintiff failed to raise a triable issue of fact. While an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer “based on alleged gross negligence in the hiring or retention of the employee” … , here, that exception is inapplicable because the Supreme Court granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the cause of action seeking punitive damages. Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 2017 NY Slip Op 00634, 2nd Dept 2-1-17

NEGLIGENCE (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/EMPLOYMENT LAW (NEGLIGENCE, WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)/NEGLIGENT HIRING AND RETENTION (WHERE AN EMPLOYEE ACTS WITHIN THE SCOPE OF EMPLOYMENT, ABSENT A VALID CLAIM FOR PUNITIVE DAMAGES, AN EMPLOYER CANNOT BE SUED FOR NEGLIGENT HIRING AND RETENTION)

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