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Olsen v Butler |
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2024 NY Slip Op 02713 |
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Decided on |
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Appellate Division, Second Department |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on
COLLEEN D. DUFFY, J.P.
WILLIAM G. FORD
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2022-00032
(Index No. 2033/21)
[*1]Steven Olsen, respondent,
v
Brian E. Butler, et al., defendants, Village of Tuxedo Park, et al.,
appellants.
McCabe & Mack LLP,
Michael J. Aviles & Associates LLC,
DECISION & ORDER
In an action, inter alia, to recover damages for negligent hiring,
training, supervision, and retention, the defendants Village of Tuxedo Park and
Tuxedo Park Police Department appeal from an order of the Supreme Court, Orange
County (Robert A. Onofry, J.), dated December 8, 2021. The order, insofar as
appealed from, denied that branch of those defendants' motion which was
pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages
for negligent hiring, training, supervision, and retention asserted against
them.
ORDERED that the appeal from so much of the order as denied that
branch of the motion of the defendants Village of Tuxedo Park and Tuxedo Park
Police Department which was pursuant to CPLR 3211(a)(7) to dismiss the cause of
action to recover damages for negligent hiring, training, supervision, and
retention insofar as asserted against the defendant Tuxedo Park Police
Department is dismissed as academic since the Tuxedo Park Police Department is
no longer a named defendant in the action; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is
further,
ORDERED that one bill of costs is awarded to the plaintiff.
In March 2021, the plaintiff commenced this action against, among
others, the Village of Tuxedo Park, the Tuxedo Park Police Department
(hereinafter the Police Department), and Michael Taback, a Police Department
sergeant. The plaintiff alleged that, in October 2020, Taback, while off-duty
and inebriated, verbally assaulted, physically attacked, and shot the plaintiff
at the Golden Rail Ale House in
In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a
complaint for failure to state a cause of action, the court must afford the
pleading a liberal construction, accept the facts as alleged in the pleading as
true, accord the plaintiff the benefit of every possible favorable inference,
and determine only whether the facts as alleged fit within any cognizable legal
theory (see Leon v Martinez, 84 NY2d 83, 87; Bumpus v New York City Tr. Auth., 47 AD3d 653, 654).
When evidentiary material is submitted and considered on a motion to dismiss a
complaint pursuant to CPLR 3211(a)(7), the question becomes whether the
plaintiff has a cause of action, not whether the plaintiff has stated one, and
unless it has been shown that a material fact as claimed by the plaintiff to be
one is not a fact at all, and unless it can be said that no significant dispute
exists regarding it, dismissal should not eventuate (see Guggenheimer v
Ginzburg, 43 NY2d 268, 275; Quiroz v Zottola, 96 AD3d 1035, 1037).
To establish a cause of action based on negligent hiring,
retention, supervision, and training of an employee, a plaintiff must
demonstrate that the "employer knew or should have known [that] the
employee[ ] [had] a propensity for the conduct which caused the [plaintiff's]
injury" (Bumpus v New York City Tr. Auth., 47 AD3d at 654 [internal
quotation marks omitted]; see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d
150, 157). "[A]llegations that a defendant had actual knowledge of
prior acts by an employee similar to those alleged in the complaint satisfy the
notice element" (
Here, the second amended complaint sufficiently alleged that the
Village knew or should have known of Taback's alleged propensity for the
conduct that the plaintiff alleged caused his injuries (see Hutchinson-Headley v HP Arverne Preserv. Hous. Co., Inc.,
219 AD3d 709, 711; Belcastro v Roman Catholic Diocese of Brooklyn, N.Y.,
213 AD3d 800, 802). The second amended complaint also sufficiently alleged
that the Village knew or should have known that it had the ability to control
Taback and of the necessity and opportunity for exercising such control, and
that Taback engaged in tortious conduct using property or resources available
to him only through his status as an employee (see Moore Charitable Found. v
PJT Partners, Inc., 40 NY3d at 157). Moreover, contrary to the defendants'
contention, the second amended complaint adequately alleged a nexus between the
Village's negligence in hiring and retaining Taback and the plaintiff's
injuries (see id. at 162).
Accordingly, we affirm the order insofar as reviewed.
DUFFY, J.P., FORD, WARHIT and LOVE, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court