Sterk-Kirch v Time Warner Cable Inc NY Slip Op 32124(U) September 4, 2013 Supreme Court, New York County Docket Number: /2013 Judge:

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1 Sterk-Kirch v Time Warner Cable Inc. 213 NY Slip Op 32124(U) September 4, 213 Spreme Cort, New York Conty Docket Nmber: /213 Jdge: Carol Edmead Cases posted with a "3" identifier, i.e., 213 NY Slip Op 31(U), are repblished from varios state and local government websites. These inclde the New York State Unified Cort System's E-Corts Service, and the Bronx Conty Clerk's office. This opinion is ncorrected and not selected for official pblication.

2 [* 1] FILED: NEW YORK COUNTY CLERK 9/9/213 INDEX NO /213 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 9/9/213 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Index Nmber: /213 STERK-KIRCH, SUSAN VS. TIME WARNER CABLE INC. SEQUENCE NUMBER: 3 DISMISS Jstice PART INDEX NO. MOTION DATE MOTION SEQ. NO. The following papers, nmbered 1 to, were read on this motion to/for Notice of Motion/Order to Show Case - Affidavits - Exhibits I No(s). Answering Affidavits - Exhibits I No(s). Replying Affidavits I No(s). Upon the foregoing papers, it is ordered that this motion is 1.1.J ~ n :;), J :l L. J J :l L - ) ) t 2 :> E en z en <t w It: C> z..j..j.. W :I: I- It:.. In this action for conversion (theft), negligent hiring, and negligent retention arising from a cable installation in plaintiffs' neighbor's apartment, defendant Uptown Commnications & Electric, Inc. ("Uptown") moves prsant to CPLR (a)(7) to dismiss plaintiffs' complaint against it with prejdice. Plaintiffs Ssan Sterk-Kirch and Thomas Kirch ("plaintiffs"), residents at 327 Central Park West, Apt. loa, allege that on September 8, 212, defendant Robert Stephens ("Stephens"), an installation technician for Uptown, was dispatched to their neighbor's apartment ("Apartment lob") to install a Time Warner Cable television box. It is alleged that dring the corse of the for-hor installation, Stephens left Apartment lob several times to go downstairs to his service trck, and on the way, broke into plaintiffs' apartment and stole plaintiffs' possessions valed at $9,. Stephens hid plaintiffs' possessions in bags in his service trck. Stephens was later arrested and some of plaintiffs' possessions were fond in his car. As a reslt, plaintiffs commenced this action against Uptown, alleging, in their first case of action, that Uptown is vicariosly liabile for Stephens's conversion. It is alleged that Stephens' conversion took place dring the corse of his employment with Uptown, and "Becase employees and agents sch as Stephens... are necessarily granted entry into apartment bildings, and are granted access to cstomers' apartments, in order to do their jobs," it was "foreseeable" to Uptown that "sch a brglary or conversion cold be committed by their employees or agents dring the corse of cable box installation work." (Complaint, pp. 6-7). The 1. CHECK ONE:... [=.J CASE DISPOSED o NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE:... MOTION IS: [-:l GRANTED DENIED C GRANTED IN PART c-= OTHER 3. CHECK IF APPROPRIATE:... ~ SETTLE ORDER D SUBMIT ORDER DDONOTPOST o FIDUCIARY APPOINTMENT ~1 REFERENCE

3 [* 2] second case of action for negligent hiring alleges that "Upon infonnation and belief, prior to being hired by Uptown, Stephens had a criminal record." Uptown hired Stephens notwithstanding its knowledge that Stephens had a propensity for theft based on his criminal record, and took no steps to ensre that he wold not steal property while on the job. The third case of action for negligent spervision alleges that Uptown failed to establish procedres to prevent Stephens from committing brglaries on the job, and failed to spervise him dring cable box installations, despite the nsally long time Stephens spent at Apartment 1 DB. In spport of dismissal, Uptown arges that it cannot be held vicariosly liable for Stephen's conversion, an act nrelated to Uptown's bsiness (of installing cable in plaintiffs' neighbor's apartment) and committed solely for his personal motives. There is no allegation that Stephens' job dties reqired him to enter into plaintiffs' apartment, or that he was given any athorization to do so. Plaintiffs also failed to allege elements for negligent hiring and spervision, in that there is no claim that Uptown had a basis at the time of his hire to sspect a propensity in Stephens to commit nlawfl acts. In opposition, plaintiff arges that nder caselaw, Uptown may be held vicariosly liable for Stephens' acts even if the tort is not directly related to Stephens' task at hand or committed for his personal gain, since (1) the tort was committed while he was working for the principal, and (2) the type of condct was foreseeable. It is foreseeable that a cable installer with access to cstomers' residences might commit a brglary while entering and exiting the cstomer's apartment and contining the installation. In frther spport of their negligent hiring and spervision claims, plaintiffs arge that the Complaint alleges that Stephens had a criminal record before was hired by Uptown, and Uptown knew of sch criminal record. Dismissal is prematre absent discovery regarding any investigation Uptown ndertook prior to hiring Stephens. Additionally, a criminal cort complaint and Detective affidavit show that on Agst 8,212, one month before the sbject incident, Stephens committed a similar crime dring another cstomer installation, and that a detective spoke to an Uptown employee who continned Stephens' identity as its employee dring sch crime. Yet, Uptown took no steps to properly spervise Stephens to ensre that he did not commit any additional crimes on the job. In reply, Uptown arges that the Complaint does not allege that Stephens was "doing his master's work" at the time of the conversion, the case law plaintiff cites is distingishable, as Stephens was never athorized by Uptown to have any contact with plaintiffs. And, Uptown did not know of any alleged propensity Stephens had toward criminal behavior either before his hire to dring his employment. A criminal backgrond check performed at the time of Stephens' hire showed no criminal history on his part. And, that Time Warner Cable was infonned of Stephens' incident on Agst 8, 212 does not establish that Uptown was so advised. The criminal complaint and Detective affidavit dated three months after the Agst 8 th incident, with no evidence of a conviction, does not establish that Uptown was on notice of sch incident. Discssion On a motion addressed to the sfficiency of a complaint prsant to CPLR 3211 (a)(7), the facts pleaded are presmed to be tre and are accorded every favorable inference (see Nonnon v City o/new York, 9 NY3d 825 [27]; Leon v Martinez, 84 NY2d 83, 87-88,614 NYS2d 972, 638 NE2d 511 [1994]). However, allegations consisting of bare legal conclsions, as well as factal claims inherently incredible or flatly contradicted by docmentary evidence are not Page 2 of 5

4 [* 3] entitled to sch consideration (Biondi v Beekman Hill Hose Apt. Corp., 257 AD2d 76, 81, 692 NYS2d 34 [1st Dept 1999], affd94 NY2d 659, 79 NYS2d 861, 731 NE2d 577 [2]). The cort's inqiry is limited to determining whether the complaint states any case of action, not whether there is evidentiary spport for it (Rovello v Orofino Realty Co., 4 NY2d 633, , 389 NYS2d 314 [1976]). And, where the parties have sbmitted evidentiary material, the pertinent isse is whether claimant has a case of action, not whether one has been stated in the complaint (see Gggenheimer v Ginzbrg, 43 NY2d 268,275 [1977]; R.H Sanbar Projects, Inc. v Grzen Partnership, 148 AD2d 316,538 NYS2d 532 [1st Dept 1989]). First Case of Action Here, assming as tre the allegations in the Complaint, plaintiffs failed to state a claim against Uptown for vicarios liability for Stephen's alleged conversion of plaintiffs' property. "An employer may be vicariosly liable for its employees' tortios acts on a theory of respondeat sperior only if they were committed in frtherance of the employer's bsiness and within the scope of employment" (Bowman v State, 1 AD3d 315, 316, 781 NYS2d 13 [1 sl Dept. 24] citing Riviello v Waldron, 47 N.Y.2d 297,33,418 NYS2d 3, 391 NE2d 1278). "The doctrine of respondeat sperior may be applied 'so long as the tortios condct is generally foreseeable and a natral incident of the employment'" (Bowman v State, 1 AD3d at 316, citing Jdith M v Sisters of Charity Hmp., 93 N.Y.2d 932, 933, 693 NYS2d 67, 715 NE2d 95). "If, however, an employee 'for prposes of his own departs from the line of his dty so that for the time being his acts constitte an abandonment of his service, the master is not liable'" (Bowman v State, 1 AD3d at 316). An intentional tort, sch as the conversion here, "committed by an employee can reslt in liability for his or her employer, nder respondeat sperior if the employee was acting 'within the scope of the employment' at the time of the commission of the tort (Ramos v Jake Realty Co., 21 AD3d 744,81 NYS2d 566 [lst Dept 25]). '''[T]he employer need not have foreseen the precise act or manner of the injry as long as the general type of condct may have been reasonably expected" (Ramos, spra). The determination of whether the doctrine applies depends pon, "The connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled ot in actal practice; whether the act is one commonly done by sch an employee; the extent of departre from normal methods of performance; and whether the specific act was one the employer cold reasonably have anticipated." (Ramos, spra). "The doctrine is premised pon a notion that the employer' is jstly held responsible when the servant throgh lack of jdgment or discretion, or from infirmity of temper, or nder the inflence of passion arosed by the circmstances and the occasion, goes beyond the strict line of his dty or athority, and inflicts an njstifiable injry pon another" (Ramos, spra, citing De Wald v Seidenberg, 297 N. Y. 335, 338, 79 NE2d 43 [l948]). Here, even assming the trth of the claim that Stephens stole plaintiffs' property while on assignment to install a cable box in plaintiffs' neighbor's apartment, no version of the facts give rise to the fact that Stephen's conversion was a departre from his cable installation dties solely for personal motives (Bowman v State, 1 AD3d 315, 781 NYS2d 13 [1 sl Dept 24] Page 3 of 5

5 [* 4] (stating that "it is clear that the [Cort Officer] employee at that time [of the tort] departed from his dties for solely personal motives nrelated to the frtherance of the Cort's bsiness" when he raped a private secrity gard dring their lnch breaks in the locker room/cafeteria]). There is no claim that Stephens was assigned to perform any cable installation in plaintiffs' apartment. There is no claim that Stephen's conversion was in the frtherance of Uptown's cable installation bsiness or in frtherance of Uptown's interests. There are no facts indicating that the time, place and occasion of the conversion in plaintiffs' apartment, the history of Stephen's employment relationship with Uptown, or Stephen's act in departing from the assigned apartment to ventre off and break into another apartment cold have been reasonably anticipated by Uptown. Therefore, the Complaint fails to allege sfficient facts to spport a claim against Uptown based on the theory of respondeat sperior so as to hold Uptown vicariosly liable for the tort committed by Stephens. As sch, the first case of action is dismissed. Second Case of Action An essential element of a case of action for negligent hiring and retention is that the employer knew, or shold have known, of the employee's propensity for the sort of condct which cased the injry (Sheila C. v Pavich, 11 AD3d 12, 781 NYS2d 342 [PI Dept. 24] citing Gomez v City of New York, 34 AD2d 374, 758 NYS2d 298)). Here, affording a liberal reading of the Complaint, plaintiff alleged facts indicating that Stephens had a criminal record prior to being hired by Uptown, that Uptown knew of his record, and that Uptown hired him with knowledge of his propensity for theft based on his criminal record, and took no steps to ensre that he wold not steal property while on the job. Althogh Uptown denies sch knowledge, in "deciding sch a preanswer motion, the cort is not athorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions" (Salles v Chase Manhattan Bank, 3 AD2d 226, 228 [1st Dept 22]; Siegmnd Strass, Inc. v East 149th Realty Corp., 14 AD3d 41,96 NYS2d 44 [PI Dept 213] ("a motion for dismissal prsant to CPLR 3211(a)(7) 'mst be denied if from the pleadings' for corners factal allegations are discerned which taken together manifest any case of action cognizable at law"')). Therefore, dismissal of the second case of action is nwarranted. Third Case of Action As to the third case of action for negligent spervision, the Complaint, copled with plaintiffs' sbmissions, indicate that after Stephens' hire, and before the sbject incident, Stephens stole property from the residence of another person dring a cable installation at the residence, and that a Detective Nicole Tallor "spoken to an employee of Uptown Commnications... and that employee has informed [her] that this defendant... [was] dispatched to perform service on the above named location [327 Central Park West] on Agst 8, 212." Althogh sch statement is dated December 19,212, no reference is made in the docment as to when Detective Tallor spoke with the Uptown employee. Therefore, the sbmissions sfficiently spport the claim that Uptown knew, or shold have known, of Stephens' propensity to commit a theft while performing cable installations. Page 4 of 5

6 [* 5] Conclsion Based on the foregoing, it is hereby ORDERED that the motion by defendant Uptown Commnications & Electric, Inc. prsant to CPLR 3211(a)(7) to dismiss plaintiffs' complaint against it with prejdice, is granted solely as to the first case of action, and the first case of action is severed and dismissed; and it is frther ORDERED that Uptown Commnications & Electric, Inc. shall serve a copy of this order with notice of entry pon all parties within 2 days of entry; and it is frther ORDERED that the parties shall appear for a preliminary conference on October 15, 213,2:15 p.m. This constittes the decision and order of the Cort. Dated 9 (. Y' l v IY ---~ Check one: FINAL DISPOSITION NON-FINAL DISPOSITION J.8.C. Check if appropriate: o DO NOT POST o REFERENCE Page 5 of 5