85 A.D.2d 403 | N.Y. App. Div. | 1982
OPINION OF THE COURT
The plaintiff’s first cause of action clearly states a cause of action. In it plaintiff wife alleges that she resided in the
There is no court order or judgment directing that defendant Saul Steinberg is entitled to the sole and exclusive possession of the marital abode.
Plaintiff’s second cause of action seeks punitive damages in consequence of the acts underlying her first cause of action. In essence, it appears that plaintiff is here seeking the treble damages provided for by RPAPL 853. Similarly, the fourth, sixth and seventh causes of action seek punitive damages. Special Term properly dismissed all four causes on the basis that there is no independent cause of action for punitive damages (Fiur Co. v Ataka & Co., 71 AD2d 370,
Special Term dismissed the complaint for failure to state a cause of action against defendant Reliance Group, Inc., on the ground that although said corporation is the employer of defendant Abatiello, there is no allegation that Abatiello was acting within the scope of his employment, citing Riviello v Waldron (47 NY2d 297). It is duly noted that Riviello was concerned not with the statement of a cause of action, but with proof at trial going to the merits of the cause of action. In that case it was observed (pp 302-303): “Applying the pertinent legal precepts to this factual framework, we first note what is hornbook law: the doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment * * * The definition of ‘scope of employment’, however, has not been an unchanging one. Originally defined narrowly * * * social policy has wrought a measure of relaxation of the traditional confines of the doctrine * * * So, no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be ‘ “whether the act was done while the servant was doing his master’s work,
In paragraph 8 of the complaint it is alleged that “defendant Dominic Abatiello * * * is employed by defendant Reliance Group, Inc. * * * and acts as such employee at the pleasure and pursuant to the direction of defendant Stein-berg who is Chairman, President and Chief Executive Officer of said corporation” (emphasis supplied). In paragraph 10 it is alleged that “[a]t all times hereafter mentioned, defendant Abatiello acted for Saul Steinberg as his personal body guard and was authorized to act as an agent on his behalf.”
We are not confronted here by a motion for summary judgment. “[W]e note the procedural posture in which this case comes before us. The sole question presented for our review is whether the plaintiff’s complaint states a cause of action. As such, we accept, as we must, each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff’s ability ultimately to establish the truth of these averments before the trier of the facts. (See, e.g., Becker v Schwartz, 46 NY2d 401, 408; Cohn v Lionel Corp., 21 NY2d 559, 562; Kober v Kober, 16 NY2d 191,193.) If we find that the plaintiff is entitled to a recovery upon any reasonable view of the stated facts, our judicial inquiry is complete and we must declare the plaintiff’s complaint to be legally sufficient. (See, e.g., Dulberg v Mock, 1 NY2d 54, 56; Condon v Associated Hosp. Serv. of N. Y., 287 NY 411, 414.)” (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509.) The complaint may reason
Murphy, P. J., Sandler, Bloom and Milonas, JJ., concur.
Judgment, Supreme Court, New York County, entered on July 29, 1981, unanimously reversed, on the law, without costs and without disbursements. The order of said court entered on July 17, 1981, unanimously modified, on the law, to the extent of denying defendant Reliance Group, Inc.’s, motion to dismiss except as to the second, fourth, sixth and seventh causes of action; and of denying defendants Monasch, Chazen, Stream, Smith, Steinberg, Abatiello and the law firm of Monasch, Chazen & Stream’s motion to dismiss the first cause of action, the first cause of action reinstated and plaintiff granted leave to replead against all the aforesaid defendants and, as so modified, affirmed, without costs and without disbursements.
See Rosenstiel v Rosenstiel (20 AD2d 71, 73-77).