Opinion
11664 M-1455 Index 26223/16E
06-18-2020
Alexis NORRIS, Plaintiff–Respondent, v. INNOVATIVE HEALTH SYSTEMS, INC., Defendant–Appellant, Zoe Rossner, Defendant.
Cozen O'Connor, New York (Amanda L. Nelson of counsel), for appellant. Greenberg Law P.C., New York (Robert J. Menna of counsel), for respondent.
Cozen O'Connor, New York (Amanda L. Nelson of counsel), for appellant.
Greenberg Law P.C., New York (Robert J. Menna of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Webber, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 10, 2019, which, upon renewal, denied defendant Innovative Health System, Inc.'s (IHS) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against IHS.
Plaintiff alleges that, while an outpatient at defendant IHS's drug rehabilitation center in 2015, defendant Rossner, an IHS employee, offered to falsify plaintiff's toxicology reports so that plaintiff could smoke marijuana while undergoing treatment, in exchange for plaintiff babysitting Rossner's children. Plaintiff alleges that, after entering into this arrangement, they smoked marijuana together. According to plaintiff, Rossner also began sexually assaulting her and on one occasion Rossner forced plaintiff to have sex with several men in exchange for drugs. Plaintiff eventually reported to IHS staff that Rossner was falsifying plaintiff's urine toxicology results and using drugs with her, leading to Rossner's termination.
The evidence submitted in support of and against IHS's motion for summary judgment shows that IHS first retained Rossner to work as an intern in 2014, and then hired her as a counselor in 2015. Before retaining her, IHS received the results of state and federal background checks, which revealed that Rossner had a criminal history in New York State consisting of a conviction for trespass and two separate convictions for drug related offenses. The New York State Office of Alcoholism and Substance Abuse Services then performed the review required by Mental Hygiene Law § 19.20(e) and determined that IHS was not required to deny Rossner's application. It did not express an opinion as to whether IHS should hire her. During Rossner's employment with IHS, she was confronted once by a supervisor for "nodding out" during a staff meeting and for missing work, which Rossner attributed to her schoolwork and a stressful home environment. Around the same time, IHS staff members complained that several urine samples had gone missing from their laboratory, but IHS did not suspect that Rossner was the cause of these missing samples.
An essential element of a claim for negligent hiring, supervision, and retention "is that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury" ( Sheila C. v. Povich, 11 A.D.3d 120, 129–130, 781 N.Y.S.2d 342 [1st Dept. 2004] [citations omitted] ). Here, IHS's knowledge of Rossner's criminal history does not raise an issue of fact as to whether IHS knew or should have known of her propensity to commit sexual assault (see Osvaldo D. v. Rector Church Wardens & Vestrymen of Parish of Trinity Church of N.Y., 38 A.D.3d 480, 480–481, 834 N.Y.S.2d 94 [1st Dept. 2007] ; Steinborn v. Himmel, 9 A.D.3d 531, 533–534, 780 N.Y.S.2d 412 [3d Dept. 2004] ). Similarly, the fact that an IHS supervisor confronted Rossner concerning her "nodding out" and missing work did not impute to IHS actual or constructive notice that Rossner had any propensity to commit sexual assault (see Schiebl v. Senior Care Emergency Med. Servs., 145 A.D.3d 456, 42 N.Y.S.3d 159 [1st Dept. 2016] ; Coronado v. 3479 Assoc. LLC, 128 A.D.3d 496, 9 N.Y.S.3d 240 [1st Dept. 2015] ; Taylor v. United Parcel Serv., Inc., 72 A.D.3d 573, 574, 899 N.Y.S.2d 223 [1st Dept. 2010], lv denied 15 N.Y.3d 705, 2010 WL 3396877 [2010] ). Accordingly, the cause of action for negligent hiring, supervision, and retention should have been dismissed as against IHS.
We find that the cause of action for negligent infliction of emotional distress also should have been dismissed as against IHS. Under the controlling precedent, IHS's alleged conduct was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Sheila C., 11 A.D.3d at 130–131, 781 N.Y.S.2d 342 [citation and internal quotation marks omitted]; see generally Wolkstein v. Morgenstern, 275 A.D.2d 635, 636–637, 713 N.Y.S.2d 171 [1st Dept. 2000] ; see also Xenias v. Roosevelt Hosp., 180 A.D.3d 588, 589, 120 N.Y.S.3d 298 [1st Dept. 2020] ).
Finally, plaintiff's claims for assault and battery, intentional infliction of emotional distress, and punitive damages against IHS are dismissed as abandoned. Plaintiff did not oppose that part of IHS's motion seeking dismissal of those claims (see Matter of Agoglia v. Benepe, 84 A.D.3d 1072, 1075, 924 N.Y.S.2d 428 [2d Dept. 2011] ), and does not defend them on appeal (see 430 W. 23rd St. Tenants Corp. v. 23rd Assoc., 155 A.D.2d 237, 239, 546 N.Y.S.2d 619 [1st Dept. 1989] ).
We have considered plaintiff's remaining contentions and find them unavailing.
Motion for stay denied as moot.