Opinion
March 31, 1986
Appeal from the Supreme Court, Suffolk County (Dunn, J.).
Order affirmed, with costs.
An employee of the defendant Fram Corporation (hereinafter Fram), the defendant Edward Hartmann, was caught removing inventory from the warehouse of the plaintiff, one of Fram's customers. The plaintiff's first cause of action against Fram is based on the doctrine of respondeat superior. Special Term correctly concluded that Hartmann did not act within the scope of his employment. Hartmann's actions were in no way "incidental to the furtherance of the employer's interest" (Makoske v. Lombardy, 47 A.D.2d 284, 288, affd 39 N.Y.2d 773). While torts committed by an employee who inartfully tries to carry out his employer's assignment may be found to be within the scope of employment (see, Riviello v. Waldron, 47 N.Y.2d 297; Sims v. Bergamo, 3 N.Y.2d 531, 534-535; De Wald v Seidenberg, 297 N.Y. 335, 337-338), torts committed for personal motives unrelated to the furtherance of the employer's business cannot (see, e.g., Cornell v. State of New York, 46 N.Y.2d 1032; see, Restatement [Second] of Agency § 288 [1] comment [c], [2]), especially if the tortious acts are serious in nature (see, Restatement [Second] of Agency § 231 comment a).
The plaintiff presented no evidence to support its second cause of action that the defendant Fram had any knowledge of Hartmann's actions, or its third cause of action that Fram in any way acted negligently in the selection or supervision of its employees. Mere speculation or surmise is not enough (Oates v. Marino, 106 A.D.2d 289, 291-292; Mayer v. McBrunigan Constr. Corp., 105 A.D.2d 774). Lazer, J.P., Bracken, Brown and Kooper, JJ., concur.