Villongcov.Tompkins Square Bagels

Appellate Division of the Supreme Court of the State of New YorkNov 30, 2017
63 N.Y.S.3d 855 (N.Y. App. Div. 2017)
63 N.Y.S.3d 855155 A.D.3d 5892017 N.Y. Slip Op. 8452

5097 Index 153093/14

11-30-2017

Edgar VILLONGCO, Plaintiff–Appellant, v. Tompkins Square BAGELS, et al., Defendants–Respondents, Nathan Bershadsky, Defendants.

Goidel & Siegel, LLP, New York (Jonathan M. Goidel of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (William C. Lawlor of counsel), for respondents.


Goidel & Siegel, LLP, New York (Jonathan M. Goidel of counsel), for appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York (William C. Lawlor of counsel), for respondents.

Renwick, J.P., Manzanet–Daniels, Mazzarelli, Kahn, Moulton, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about May 18, 2016, which granted the motion of defendants Tompkins Square Bagels and Sage the Cat, LLC (collectively defendant), for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Summary judgment was properly granted in this action for personal injuries sustained when defendant restaurant's employee (defendant Bershadsky) followed plaintiff customer outside the restaurant and punched him in the face. Bershadsky clearly acted beyond the scope of his employment, and was motivate by private concerns not related to any conduct in furtherance of defendant's business, and thus defendant is not liable under the doctrine of respondeat superior (see Conde v. Yeshiva Univ., 16 A.D.3d 185, 187, 792 N.Y.S.2d 387 [1st Dept.2005] ). Furthermore, defendant is not liable for plaintiff's injuries based upon negligent training or supervision, as there is nothing in the record to demonstrate that defendant knew, or should have known, of Bershadsky's propensity for violence (see Sheila C. v. Povich, 11 A.D.3d 120, 129–130, 781 N.Y.S.2d 342[1st Dept.2004).

We have considered plaintiff's remaining arguments and find them unavailing.