729 N.Y.S.2d 32 | N.Y. App. Div. | 2001
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered July 19, 2000, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, reversed, on the law, without costs, the motion granted and the complaint dismissed against defendants-appellants. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.
Plaintiff seeks to recover for injuries sustained by him when he was assaulted by defendant Sanderlin, then an employee of defendant Mr. Natural, Inc. Mr. Sanderlin was employed by Mr. Natural, Inc. as a truck driver’s helper. He was not authorized to service any of defendants’ beverage vending machines or to possess the keys to the machines. On the morning in question, Sanderlin appeared at plaintiffs delicatessen and attempted to service the Snapple machine located therein. When plaintiff questioned Sanderlin’s authority to do so, Sanderlin assaulted plaintiff by striking him several times from behind with a metal bar causing him serious personal injury. Sanderlin was terminated later the same day for stealing the company’s vending machine keys.
An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the
Ellerin, J. P., dissents in a memorandum as follows: I agree with the motion court’s conclusion that there are questions of fact here, including the relationship between Snapple and Mr. Natural and whether Sanderlin was “on duty” at the time of the assault, that preclude the granting of summary judgment.
Accordingly, I would affirm.