Ambroise v. United Parcel Service of America, Inc.Ambroise v. United Parcel Service of America, Inc.
In an action to recover damages for personal injuries and wrongful death, etc., the defendants United Parcel Service of America, Inc., also known as UPS, and Louis R. Nunziata appeal from an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered November 18, 2013, which denied their motion pursuant to CPLR 3211 (a) to dismiss portions of the first cause of action insofar as asserted against the defendant United Parcel Service of America, Inc., also known as UPS, and to dismiss the second, third, fourth, fifth, and sixth causes of action insofar as asserted against them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants United Parcel Service of America, Inc., also known as UPS, and Louis R. Nunziata which was to dismiss so much of the first' cause of action as sought to recover damages against the defendant United Parcel Service of America, Inc., also known as UPS, for negligent hiring, training, and supervision, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof denying those branches of the motion of the defendants United Parcel Service of America, Inc., also known as UPS, and Louis R. Nunziata which were to dismiss the second, third, fourth, fifth, and sixth causes of action insofar as asserted against them, and substituting therefor a provision granting those branches of the motion, with leave to the plaintiffs Adeline Ambroise and Harold Chuntz, in their capacity as administrators of the estate of Luckner Augustin, to replead a cause of action to recover damages for wrongful death on behalf of all distribu-tees; as. so modified, the order is affirmed insofar as appealed from, with costs to the appellants.
On the morning of April 9, 2011, the decedent, Luckner Augustin, was driving on the New York State Thruway in Orange County when he pulled over to assist the driver of a
Following the accident, the decedent’s widow, Adeline Ambroise, and Harold Chuntz, as the administrators of the decedent’s estate, commenced this action against several parties, including the defendants, seeking to recover damages, inter alia, for the decedent’s injuries and death. In the first cause of action, Ambroise, in her capacity as an administrator of the decedent’s estate, sought to hold UPS liable for the decedent’s personal injuries on theories, inter alia, of negligent hiring, training, and supervision. Although the second cause of action was denominated as having been asserted by Ambroise as administrator of the decedent’s estate, she demanded damages on that cause of action individually. The decedent’s four children were also named as plaintiffs in the action, and asserted individual causes of action to recover damages, inter alia, for wrongful death.
The defendants thereafter moved pursuant to CPLR 3211 (a) to dismiss portions of the first cause of action insofar as asserted against UPS, and to dismiss the second, third, fourth, fifth, and sixth causes of action of the complaint insofar as asserted against them. In support of the motion, the defendants expressly conceded that Nunziata was acting within the scope of his employment with UPS when the accident occurred,' and argued that in light of this concession, the plaintiffs could not maintain direct negligence claims against UPS to recover damages on theories, inter alia, of negligent hiring, training, and supervision. The Supreme Court denied the defendants’ motion in its entirety solely upon the ground that the caption appearing on the defendants’ moving papers was incorrect, despite the fact that the plaintiffs had not opposed the motion on this ground.
The Supreme Court erred in denying the defendants’ motion solely upon a procedural ground that the parties did not raise or litigate
(see Rosenblatt v St. George Health & Racquetball Assoc., LLC,
Turning to the merits, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss so much of the first cause of action as sought to recover damages against UPS on theories of negligent hiring, training, and supervision. Generally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondeat superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training
(see Bouet v City of New York,
The second cause of action must also be dismissed pursuant to CPLR 3211 (a) (3) and (7). Although the complaint alleges that Ambroise is one of the administrators of the decedent’s estate, the second cause of action appears, in actuality, to be asserted by her individually rather than in her capacity as an administrator of the decedent’s estate. To the extent that the second cause of action seeks damages recoverable in a wrongful death action (EPTL 5-4.3 [a]), it improperly does so only on behalf of Ambroise, rather than on behalf of all of the decedent’s
As the decedent’s distributees, his four children may recover damages for pecuniary loss, which includes loss of income and financial support, and loss of parental guidance
(see Gonzalez v New York City Hous. Auth.,
In light of our determination, we need not address the defendants’ remaining contentions.
Accordingly, we grant those branches of the defendants’ motion which were to dismiss so much of the first cause of action as sought to recover damages against UPS for negligent hiring, training, and supervision, and to dismiss the second, third,