Summary
affirming dismissal of a negligent supervision claim where the complaint “contains little more than bare legal conclusions”
Summary of this case from Green v. City of Mount VernonOpinion
April 13, 1998
Appeal from the Supreme Court, Nassau County (DeMaro, J.).
Ordered that the order and the interlocutory judgment are affirmed insofar as appealed from, with costs.
On a motion to address the sufficiency of the complaint, the inquiry is "whether the complaint, considered as a whole and construing the allegations in favor of the plaintiff, states 'in some recognizable form any cause of action known to our law'" ( Antico v. Richmond Hous. Assocs., 196 A.D.2d 853, quoting Dulberg v. Mock, 1 N.Y.2d 54, 56). In considering a motion to dismiss for failure to state a cause of action, the court should only be concerned with "whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; see also, Leon v. Martinez, 84 N.Y.2d 83, 88).
An employer is vicariously liable, under the theory of respondeat superior, for the torts of its employee, if the actions complained of were committed while the employee was acting within the scope of his employment, even if the acts are done irregularly, or in disregard of instruction ( see, Riviello v. Waldron, 47 N.Y.2d 297, 302). Nevertheless, there is no respondeat superior liability for torts committed by an employee solely for personal motives unrelated to the furtherance of the employer's business ( see, Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 402; Horowitz v. Sears, Roebuck Co., 137 A.D.2d 492).
Here, the respondent is not vicariously liable for its employee's actions because, based on the facts asserted in the complaint, the employee acted for his own personal gain and not in furtherance of the respondent's business ( see, Kirkman v. Astoria Gen. Hosp., supra). Accordingly, the Supreme Court properly dismissed the second cause of action insofar as it related to the respondent ( see, CPLR 3211 [a] [7]).
To the extent that the appellant claims that the respondent is liable based on the theory of negligent supervision, a necessary element of such a cause of action is that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v. Roman Catholic Diocese, 229 A.D.2d 159, 161, cert denied ___ U.S. ___, 118 S.Ct. 413). Our review of the complaint reveals that the appellant's fifth cause of action sounding in negligent supervision contains "little more than bare legal conclusions" or factual claims that are contradicted by evidence ( Corporate Nat'l. Realty v. Philson Ltd., 232 A.D.2d 518, 519). Thus, the Supreme Court properly dismissed the fifth cause of action ( see, CPLR 3211 [a] [7]).
Miller, J.P., Sullivan, Pizzuto and Friedmann, JJ., concur.