In Villongco v. Tompkins Square Bagels (153093/2014, NYLJ 1202758483091, decided May 18, 2016), a New York County personal injury case, a bagel store's motion for summary judgment was granted against the plaintiff when he was assaulted by an employee of the store. Particularly, it is alleged that the plaintiff called a female worker at the bagel store a derogatory name, and a co-worker was informed of this and confronted the plaintiff outside, thereby assaulting him. As a result of the assault, the plaintiff commenced a personal injury action, contending, among other things, that the defendant bagel store is vicariously liable for the employee's actions towards the plaintiff.
After discovery was completed, the defendant bagel store made a motion for summary judgment, contending that the plaintiff's action should be dismissed as there are no triable issues of fact. Justice Carol Edmead agreed with the defendant bagel store, granting its motion, noting, among other things, that at the time of the assault the employee was not working (and was "off the clock"), and therefore was not acting within the scope of his employment. The Court also stated the following: "'An employer cannot be held vicariously liable for an alleged assault
where the assault was not within the scope of the employee's duties, and
there is no evidence that the assault was condoned, instigated or
authorized by the employer [citing Yeboah v. Snapple, Inc., 286AD2d 204, 729
NYS2d 32 (1st Dept 2001)].'"
Salvatore R. Marino, Esq.