654 N.Y.S.2d 900 | N.Y. App. Div. | 1997
Lead Opinion
Order reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion to dismiss the complaint for failure to state a cause of action. Plaintiffs’ general negligence cause of action should have been dismissed because
All concur except Balio, J., who dissents and votes to affirm in the following Memorandum.
Dissenting Opinion
Supreme Court properly determined that the first cause of action of the complaint states a cause of action for negligent supervision and training of bank employees. Thus, I respectfully dissent and vote to affirm.
The complaint alleges that, on October 25, 1993, Benjamin Moore (plaintiff) maintained checking and savings accounts with defendant bank and that, while he was transacting business at the Henrietta branch of the bank, the assistant manager of that bank branch erroneously reported to the police that plaintiff possessed a hand gun and, as a result, the police forcibly detained plaintiff at gunpoint and searched him for a weapon. The first cause of action of the complaint alleges that the bank was negligent in exposing plaintiff to unwarranted peril and risk of harm by erroneously making an emergency call to the police; in failing to act reasonably in ascertaining whether plaintiff possessed a hand gun and, if so, whether plaintiff was licensed to carry a hand gun, and in ascertaining whether plaintiff was engaging in threatening or suspicious conduct; in failing to notify the police that plaintiff was a customer of the bank and that he had not engaged in any suspicious or improper behavior while inside the bank; in failing to provide proper or adequate training or supervision of bank employees concerning emergency calls to the police and to inform employees that possession of a hand gun is not unlawful; and in hiring and retaining the assistant manager without ascertaining whether she possessed biased or prejudicial opinions concerning African-American males that would interfere with her judgment in such matters. The second cause of action of the complaint asserts a derivative claim by plaintiff’s wife.
Evidence submitted on the motion to dismiss establishes that plaintiff had been a customer of the bank for 15 years and frequently transacted business at that bank branch. While plaintiff was sitting at a desk and talking with a personal banking specialist employed by the bank, another bank employee
Where, as here, the parties have submitted evidence on a post-answer motion to dismiss pursuant to CPLR 3211 (a) (7), the "criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Leon v Martinez, 84 NY2d 83, 88). "We-accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, supra, at 87-88). Evidence may be considered to remedy defects in the pleading and will warrant dismissal only when such evidence conclusively establishes that plaintiff has no cause of action (see, Rovello v Orofino Realty Co., 40 NY2d 633, 636).
The complaint, liberally construed, alleges that defendant failed to instruct, train and supervise its employees in a proper or adequate manner; that, as a result, its employees failed to exercise reasonable care in ascertaining whether plaintiff possessed a hand gun and whether the circumstances warranted making an emergency call to the police; and that the lack of adequate supervision and training and the negligent and erroneous report to the police were a proximate cause of the injuries suffered by plaintiffs.
The majority concludes that defendant owed no duty to plaintiff and, thus, cannot be held liable for negligence in fail
Finally, there is nothing "conclusory” about the complaint allegations of negligent supervision and training or the evidence that supports those allegations. In this respect, the majority’s reliance upon Richardson v New York Univ. (202 AD2d 295, 296-297) is misplaced. The court in that case held that conclusory allegations were not sufficient to defeat a motion for summary judgment. The instant appeal is from an order denying a motion to dismiss pursuant to CPLR 3211 (a) (7), not an order denying summary judgment. In any event, even assuming, arguendo, that the order appealed from denied summary judgment, the majority’s view that plaintiff’s opposing papers contained conclusory allegations and, thus, were deficient is irrelevant. Defendant failed to sustain its burden of negating the existence of factual issues sufficiently to warrant judgment in its favor as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). Evidence submitted by defendant establishes that no bank employee actually saw a gun, plaintiff did not act in a suspicious manner, and, although the assistant manager informed the bank’s security office that she could not see whether plaintiff had a gun, the security office