Summary
finding that the Martin rule did not apply to a negligence cause of action related to a business manager's alleged negligence in appointing, hiring, or retaining the defendant as labor steward
Summary of this case from Cruz v. United Auto. Workers Union Local 2300Opinion
December 30, 1999
Appeal from Order of Supreme Court, Erie County, Cosgrove, J. — Summary Judgment.
Order unanimously reversed on the law without costs, motion granted and second amended complaint and cross claim against defendant Laborers International Union of North America, Local 210 dismissed.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.
Memorandum:
Plaintiff commenced this action to recover damages for injuries he sustained as the result of an alleged assault by defendant Donald Panepinto at a construction site. Plaintiff and Panepinto were employed as laborers for different employers at that construction site. Panepinto had been designated by defendant Laborers International Union of North America, Local 210 (Local 210) as a laborer steward. The second amended complaint alleges causes of action against Local 210 for assault and negligence in appointing, hiring and retaining Panepinto as a laborer steward. In his answer, Panepinto asserts a cross claim for contribution against Local 210.
Supreme Court erred in denying the motion of Local 210 for summary judgment dismissing the second amended complaint and cross claim against it. The cause of action for assault cannot be maintained against Local 210 because the complaint fails to allege that the individual members of Local 210 authorized or ratified the assault ( see, Martin v. Curran, 303 N.Y. 276, 279-280; Walsh v. Torres-Lynch, 266 A.D.2d 817 [decided Nov. 12, 1999]; Saint v. Pope, 12 A.D.2d 168, 171). With respect to the negligence causes of action, plaintiff was not required to allege that the members of Local 210 authorized or ratified the alleged negligence of the business manager in appointing, hiring or retaining Panepinto as a laborer steward ( see, Grahame v. Rochester Teachers Assn., 262 A.D.2d 963 [decided June 18, 1999]; Torres v. Lacey, 3 A.D.2d 998). Local 210, however, established its entitlement to judgment dismissing those causes of action by submitting proof that it had no knowledge of Panepinto's propensity for the type of behavior that caused plaintiff's injuries ( see, Start v. Sugarcreek Stores, 234 A.D.2d 933; Curtis v. City of Utica, 209 A.D.2d 1024, 1025). Plaintiff's submissions in opposition to the motion fail to raise a triable issue of fact ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).