Wallace v. Gomez

Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 25, 2001, which denied defendant 2962 Decatur Avenue Owners Corp.’s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiff’s claim against 2962 Decatur Avenue Owners Corp. insofar as premised on the doctrine of respondeat superior, and otherwise affirmed, without costs.

In this personal injury action, the motion court properly determined that there were triable issues of fact as to whether defendant Ramon Gomez, Jr. was an employee of Decatur at the time he assaulted the plaintiff and, if he was, whether Dec*307atur was negligent in its hiring and supervision of him. However, the motion court erred when it found questions of fact as to whether Decatur was answerable for Mr. Gomez’ actions on a respondeat superior theory. Decatur cannot be held vicariously liable for the unprovoked assault at issue, which, as alleged, was clearly outside the scope of any duties Mr. Gomez may have had as a building functionary and did not further or serve any discernible business purpose of Decatur (see, Fainberg v Dalton Kent Sec. Group, 268 AD2d 247, 248; Flowers v New York City Tr. Auth., 267 AD2d 132, lv denied 94 NY2d 763). Concur — Saxe, J.P., Buckley, Rosenberger, Friedman and Marlow, JJ.