Kawoya v. Pet Pantry Warehouse, Inc.Kawoya v. Pet Pantry Warehouse, Inc.
Lead Opinion
Order of the Appellate Term of the Supreme Court, First Department, entered April 15, 2002, which, in an action alleging an unlawful lockout and destruction of personal property, reversed so much of an order of thе Civil Court, New York County (Eileen Rakower, J.), entered October 31, 2001, as granted defendants-appellants’ motion for summary judgment dismissing the complaint as against them, reversed, on the law, without costs, and the motion granted. The Clerk is dirеcted to enter judgment in favor of defendants-appellants dismissing the complaint as against them.
Plaintiff, a Nеw York resident, was employed as a stockperson by defendants Pet Pantry Warehouse, Inc. and Pet Pantry Suрer Discount Stores, LLP (hereinafter jointly Pet Pantry), a Connecticut corporation, at their Greenwich, Connecticut location. Defendant Douglas Staley (Staley), Pet Pantry’s chief operating officer, prоposed that plaintiff move into his private Connecticut
Pet Pantry subsequently moved for summary judgment, contending, inter alia, that the subject apartment was wholly owned by Staley, who was not a partner of Pet Pantry, and that Staley’s decision to rent his private residence to plaintiff and the alleged destruction of plaintiffs personal property were not within Staley’s duties or responsibilities as an employee of Pet Pantry. By order entered on Oсtober 31, 2001, the Civil Court, inter alia, granted the motion and dismissed the complaint against Pet Pantry, finding that it: (1) was not a pаrty to the oral rental agreement between plaintiff and Staley; (2) did not have control over the subjeсt premises; and (3) was not responsible for the alleged lockout or subsequent property loss. The Appellate Term reversed and denied Pet Pantry’s motion for summary relief, finding, inter alia, questions of fact as to whether Staley’s actions were within the scope of his employment or in furtherance of Pet Pantry’s business under the doctrine of respondeat superior. This Court granted Pet Pantry leave to appeal and we nоw reverse.
It is well settled that under the doctrine of respondeat superior, “[a]n employer may be held vicariously liable for the tortious acts of its employee only if those acts were committed in furtherance of the employer’s business and within the scope of employment” (N.X. v Cabrini Med. Ctr.,
In the instant matter, we find no question that Stаley’s actions in renting his private residence to plaintiff and the alleged subsequent destruction of plaintiff’s рersonal property were personal in nature and not within the scope of his employment with Pet Pаntry. After a careful review of the record, it is clear that Staley took in his nephew and plaintiff as tenаnts primar
We have considered the plaintiffs remaining contentions and find them unavailing. Concur—Andrias, J.P., Ellerin and Lerner, JJ.
Dissenting Opinion
dissent in a memorandum by Williams, J., as follows: I would affirm the order of the Appellate Term.
The contention of the Pet Pantry defendants, that defеndant Staley, their chief operating officer, was not acting within the scope of his employment when, аs plaintiff alleges, he unlawfully locked plaintiff out of the apartment that he rented to plaintiff and then destroyed plaintiffs personal property, is not sufficiently supported to warrant a grant of summary judgment. Indeеd, the evidence arguably shows that Staley utilized the apartment in question as a company apartment, i.e., to house Pet Pantry employees so as to place them more readily at their employеr’s disposal, and that Staley’s alleged wrongful conduct was precipitated by plaintiffs termination as a Pet Pantry employee shortly after he notified Pet Pantry that he would seek medical coverage for the on-the-job back injury he sustained. Consequently, issues of fact are raised as to whether the complained-of acts attributed to Staley were performed to further the interests of the Pet Pantry defendants and within the scope of Staley’s employment (see Riviello v Waldron,