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Question of Fact Whether City Liable for Shooting by an Off-Duty Police Officer Under Negligent Hiring, Retention and Supervision Theory—Akin to Negligently Entrusting a Dangerous Instrumentality (Weapon) to Another

The First Department, in a full-fledged opinion by Justice Renwick, determined plaintiff had raised a question of fact whether the city was liable for the death of the police officer’s girlfriend (plaintiff’s decedent) under a negligent hiring/retention/supervision theory. The shooting occurred when the officer, Maselli, was off duty in his home. Plaintiff alleged the city had notice of Maselli’s violent propensities:

In this case, the alleged duty owed to plaintiff stems from New York’s long recognized tort of negligent hiring and retention … . This tort applies equally to municipalities and private employers … . This theory of employer liability should be distinguished from the established legal doctrine of “respondeat superior,” where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee’s duties or in furtherance of the employer’s interests … . In contrast, under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment … .

Thus, in this case, plaintiffs’ negligence claims do not depend on whether Maselli acted within the scope of his employment or whether the City participated in, authorized, or ratified Maselli’s tortious conduct. Rather, the alleged breach of duty stems from the claim that during Maselli’s employment with the City, the City became aware or should have become aware of problems with Maselli that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that plaintiff’s damages were caused by the City’s negligent retention, or supervision of Maselli.

The negligent retention or supervision of a police officer, which results in the employee having possession of a dangerous instrumentality, is similar to if not indistinguishable from the tort of entrusting a dangerous instrumentality to another. The duty analysis should be the same. “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them” … . The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment. Gonzalez v City of the New York, 2015 NY Slip Op 06869, 1st Dept 9-22-15

 

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Principal’s Failure to Follow the Performance-Rating Procedures Required by the School District and Collective Bargaining Agreement Deprived a School Social Worker of a Fair Review Process—Unsatisfatory Rating (U-Rating) Annulled

The First Department determined the principal’s failure to comply with the relevant performance-rating procedures deprived petitioner, a school social worker, of a fair review process.  Petitioner’s unsatisfactory rating (U-rating) was annulled:

Petitioner establishes that in evaluating her performance, respondents did not adhere to their procedures or those provided in the parties’ collective bargaining agreement. Special Circular No. 45, a memorandum issued by respondents in response to the mandate set forth in the Commissioner of Education Regulations (8 NYCRR) § 100.2(o), outlines the procedures for rating professional personnel, as does the related manual produced by the New York City Public Schools, entitled Rating Pedagogical Staff Members. Specifically, as a pedagogical employee, petitioner was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement. * * *

…[T]he complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, “undermined the integrity and fairness of the process” … . Accordingly, the judgment should be reversed, and the petition granted to the extent of annulling the U-rating. Matter of Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, 1st Dept 9-22-15

 

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Hearing Officer’s Failure to Ascertain Why a Witness Called by the Inmate Refused to Testify Required Annulment of the Disciplinary Determination

The Third Department determined the inmate-petitioner’s disciplinary determination must be annulled because the inmate was effectively denied his right to call a witness:

… [T]he determination must be annulled because petitioner was denied his right to call a witness … . After petitioner requested that his cellmate at the time of the cell search be called to testify, the Hearing Officer sent two correction officers to retrieve him; the officers returned and merely reported that the prospective witness had refused to testify because “he didn’t want to come out.” One of the officers signed a witness refusal to testify form that provided no reason for the refusal and indicated that the prospective witness had refused to sign the form. As the Hearing Officer made no attempt to verify the witness’s refusal or ascertain his reasons for refusing to testify, despite petitioner’s repeated requests, petitioner’s right to call witnesses was violated … . Matter of Figueroa v Prack, 2015 NY Slip Op 06846, 3rd Dept 9-17-15

 

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Homeowner’s Exception Did Not Apply to a Horse Barn Used for Commercial Purposes Despite Presence of an Apartment in the Barn

The Second Department determined the “homeowner’s exception” to the applicability of the Labor Law did not apply to a barn used to house horses for commercial purposes, even though the barn included an apartment used by one of the horse farm’s shareholders. The court also noted that the “recalcitrant worker” affirmative defense should not have been dismissed “sua sponte” in the absence of a motion to dismiss it.  With respect to the homeowner’s exception, the court explained:

“… [T]he plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) … . Among other things, the plaintiff demonstrated that the defendant described itself as “essentially . . . a business for keeping horses,” its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident. The plaintiff’s submissions also established that when the defendant corporation originally purchased the subject property, the large barn was in a state of disrepair. The defendant renovated the large barn and added many improvements to the property, including multiple paddocks, an additional barn, and an “Equicisor,” a “72-foot circular automated horse exercising machine.” One of the defendant’s shareholders described the apartment in the rear of the barn as a part-time “office residence” where he might stay a ‘few days’ per week, although the amount of time he stayed varied depending on the season and the horse racing schedule. Under these circumstances, the plaintiff established, prima facie, that the defendant’s boarding stable, which was used primarily for commercial purposes, did not constitute a residence within the meaning of the homeowner’s exemption …”. Rossi v Flying Horse Farm, Inc., 2015 NY Slip Op 06798, 2nd Dept 9-16-15

 

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Plaintiff Raised a Triable Issue of Fact Under the Doctrine of Res Ipsa Loquitur—Plaintiff Alleged a Bone Was Fractured During Surgery

The Second Department determined plaintiff had raised a triable issue fact in a medical malpractice action under the doctrine of res ipsa loquitur. The complaint alleged that, during surgery on her shoulder, a bone was fractured. The court explained the analytical criteria:

“[R]es ipsa loquitur [is] available in a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury to reasonably conclude that the accident would not happen without negligence” … . The doctrine is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “The doctrine is generally available to establish a prima facie case when an unexplained injury in an area which is remote from the treatment site occurs while the patient is anesthetized” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by [the] defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Swoboda v Fontanetta, 2015 NY Slip Op 06804, 2nd Dept 9-16-15

 

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School District Not On Notice Such that the Assault by Another Student Was Foreseeable

The Second Department determined defendant school district’s motion for summary judgment in a student’s “negligent supervision” action was properly granted. The student was grabbed by another student and had been the subject of bullying. The court found that the school was not on notice such that the act complained of was foreseeable:

To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of fellow students, a plaintiff must demonstrate that school authorities ” had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated'” … . Actual or constructive notice of prior similar conduct is generally required, and injury caused by the “impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, the defendant established, prima facie, that the alleged assault by a student in the cafeteria was an unforseeable act and that it had no actual or constructive notice of prior conduct similar to the incident in the cafeteria … . Maldari v Mount Pleasant Cent. Sch. Dist., 2015 NY Slip Op 06788, 2nd Dept 9-16-15

 

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Leave to File Late Notice of Claim Should Have Been Granted

The Second Department determined Supreme Court should have granted leave to file a late notice of claim in an action stemming from an assault by students against plaintiff (also a student). Plaintiff had been confronted and threatened by two students. Plaintiff’s mother informed the school and asked for a meeting with the two students’ parents. Nothing was done by the school. One week later, the plaintiff was beaten by the two students. Plaintiff sought to file a notice of claim a month after the 90-day deadline. The court explained the relevant analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . “Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim” … . The court must also consider other relevant circumstances, including: (1) whether the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner’s infancy and the delay in service of a notice of claim; (2) whether the claimant had a reasonable excuse for the delay; and (3) whether the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]…).

Timely notice of the facts underlying the claim must be acquired within the 90-day period “or a reasonable time thereafter”… . Here the [defendants]received the petition for leave to serve a late notice of claim approximately one month after the expiration of the 90-day period. Thus, the [defendants] acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day period … .

Because the [defendants] acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice … . The [defendants’] conclusory assertions of prejudice, based solely on the petitioners’ one-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing … . Matter of Regan v City of New York, 2015 NY Slip Op 06826, 2nd Dept 9-16-15

 

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Rejection of Answer Based Upon a Defective Verification Was Ineffective Because the Rejection Was Not Accompanied by an Adequate Description of the Defect—Supreme Court Properly Ignored Defect Because there Was No Prejudice to Plaintiffs

The Second Department affirmed the denial of plaintiffs’ motion to enter a judgment on the ground defendant failed to appear in the action. The plaintiffs had rejected defendant’s answer because the verification was defective. The Second Department noted (1) the rejection of the answer was not effective because the rejection was not accompanied by an explanation of the nature of the alleged defect and (2), because plaintiffs suffered no prejudice, Supreme Court properly ignored the defect:

“Pursuant to CPLR 3022, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence returns the [pleading] with notification of the reason(s) for deeming the verification defective” … . Here, at the outset, the plaintiffs’ rejection of the defendant’s answer was ineffective, as it failed to specify the reasons or objections with sufficient specificity … . Moreover, as the Supreme Court properly found, the plaintiffs suffered no prejudice. Accordingly, the complained-of defect was properly “ignored” by the Supreme Court … . Gaffey v Shah, 2015 NY Slip Op 06779, 2nd Dept 9-16-15

 

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Plaintiff Barred from Recovery Against Special Employer by Exclusivity Provisions of Workers’ Compensation Law

The Second Department determined plaintiff was defendant’s special employee and recovery from defendant was therefore barred by the exclusivity provisions of the Workers’ Compensation Law. Plaintiff worked for a staffing agency and was assigned to work for defendant. After plaintiff was injured working for defendant, he was paid Workers’ Compensation benefits by the staffing agency. Because of the exclusivity provisions of the Workers’ Compensation Law, plaintiff could not recover from the defendant, his special employer:

” In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment'” (…see Workers’ Compensation Law §§ 11, 29[6]). For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer … . “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

A special employee is “one who is transferred for a limited time of whatever duration to the service of another” … . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge … . “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'” … .

Here, the defendant established, prima facie, that this action was barred by the exclusivity provisions of the Workers’ Compensation Law. Evidence submitted in support of the motion demonstrated, prima facie, that the defendant controlled and directed the manner, details, and ultimate result of the plaintiff’s work, and that the defendant was the plaintiff’s special employer … . Wilson v A.H. Harris & Sons, Inc., 2015 NY Slip Op 06808, 2nd Dept 9-16-15

 

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“Due Diligence” Demonstrated—“Nail and Mail” Service Appropriate

In a foreclosure action, the Second Department determined plaintiff bank demonstrated “due diligence” in attempting personal service on the homeowner, such that the “nail and mail” service was appropriate:

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence (see CPLR 308[4]…). The term “due diligence,” which is not defined by statute, has been interpreted and applied on a case-by-case basis … . Indeed, the Court of Appeals has stated that “in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed” … . As a general matter, the “due diligence” requirement may be met with “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” … .

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner’s residence on three different occasions and at different times, when the homeowner could reasonably have been expected to be found at that location … . The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner … . Contrary to the homeowner’s contention, under these circumstances, the due diligence requirement was satisfied… . Wells Fargo Bank, NA v Besemer, 2015 NY Slip Op 06806, 2nd Dept 9-16-15

 

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