Preview
FILED: BRONX COUNTY CLERK 01/20/2023 10:23 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 01/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
LEONARD J. CANORA,
Index No. 20816/2020
Plaintiff,
NOTICE OF APPEAL
v.
RAMBLING HOUSE INC., JOSEPH KRIPP and
THOMAS DRAGO,
Defendants.
PLEASE TAKE NOTICE that Defendant RAMBLING HOUSE INC. appeals to the
Appellate Division of the First Department from the December 20, 2022 Order (Cohen, J.S.C.)
entered in the office of the Clerk of the County of Bronx on or about December 20, 2022, served
with Notice of Entry on December 21, 2022. Defendant RAMBLING HOUSE INC. appeals each
and every part of the December 20, 2022 Order that denied Defendant RAMBLING HOUSE
INC.’s motion for summary judgment dismissing the first cause of action.
Dated: New York, New York
January 20, 2023
CLARK & FOX
BY:
Megan K. Foster
135 West 41st Street, 5th Floor
New York, NY 10036
Phone: (646) 506-4707
Email: mfoster@clarkfoxlaw.com
Attorney for Defendant,
Rambling House Inc.
TO: Richard E. Noll, Esquire
The Noll Law Firm PC
33 Queens Street, Ste 102
Syosset, NY 11791
Attorney for Plaintiff
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FILED: BRONX COUNTY CLERK 01/20/2023 10:23 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 01/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
LEONARD CANORA,
Plaintiff, Index No. 20816/2020
v.
RAMBLING HOUSE INC., JOSEPH
KRIPP AND THOMAS DRAGO,
Defendants.
NOTICE OF APPEAL
Megan K. Foster, Esquire
CLARK & FOX
135 W. 41st Street, 5th Floor
New York, NY 10036
Phone: (646) 506-4707
Fax: (646) 506-3777
Email: mfoster@clarkfoxlaw.com
2 of 13
12/21/2022 10:23
FILED: BRONX COUNTY CLERK 01/20/2023 05:00 AM
PM INDEX NO. 20816/2020E
83
NYSCEF DOC. NO. 85 12/21/2022
RECEIVED NYSCEF: 01/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------------------------------------X
LEONARD J. CANORA, ORDER AND
NOTICE OF ENTRY
Plaintiff,
Index # 20816/2020E
-against-
RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS
DRAGO,
Defendants.
----------------------------------------------------------------------X
COUNSEL:
PLEASE TAKE NOTICE, that the Order of the Honorable Andrew J. Cohen, dated
December 20, 2020, a true and complete copy of which is attached hereto, was entered with the
Clerk of the Court on December 20, 2022.
Dated: Syosset, New York
December 21, 2022
Yours, etc.,
Richard E. Noll
THE NOLL LAW FIRM, P.C.
Attorneys for Plaintiff
485 Underhill Boulevard, Suite 107
Syosset, New York 11791
(516) 307-1199
TO: Clark & Fox
Megan K. Foster
135 West 41st Street, 5th Floor
New York, NY 10036
646-506-4707
mfoster@clarkfoxlaw.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, PART IA-4
__________________________________________________________---------X
LEONARD CANORA
Plaintiff, Index No. 20816/2020E
-against- Hon. ANDREW J. COHEN
Justice Supreme Court
RAMBLING HOUSE INC., JOSEPH KRIPP and
THOMAS DRAGO,
Defendants,
__________________..___________..________________-..-_________________Ç
The following papers numbered 1 to were read on this motion (Seq. No. 4) for
noticed on
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No(s).
Answering Affidavit and Exhibits No(s).
Replying Affidavit and Exhibits No(s).
Upon the foregoing papers, it is ordered that this motion is resolved in accordance with the annexed
decision and order.
+; Dated: / Hon.
AND J. COHEN, J.S.C.
1. CHECK ONE............................................ o CASE DISPOSED IN ITS ENTI TY CASE STILL ACTIVE
2. MOTION IS.............................................. o GRANTED o DENIED GRANTED IN PART o OTHER
3. CHECK IF APPROPRIATE..................... o SETTLE ORDER o SUBMIT ORDER o SCHEDULE APPEARANCE
o FIDUCIARY APPOINTMENT o REFEREE APPOINTMENT
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: PART 4
LEONARD CANORA,
DECISION AND ORDER
Plaintiff,
Index No. 20816/2020E
-against-
RAMBLING HOUSE INC., JOSEPH KRIPP and
THOMAS DRAGO,
Defendants.
The following papers, on motion sequence #004, were considered for summary judgment:
PAPERS NUMBERED
Notice of Motion, annexed Exhibits and Affidavits and Statement of Material Facts..............................50-71
Answering Affidavits, annexed Exhibits and Statement of Material Facts...................................................73-76
Reply and Response to Statement of Material Facts..............................................a.....................78-79
Upon the foregoing papers, it is ordered that Defendant's motion for summary judgment is
granted in part.
Plaintiff, Mr. Leonard Canora, commenced this action for personal injuries allegedly
sustained on March 23, 2019, when he attended the Rambling House (hereafter "House"), a bar
and restaurant located at 4292 Katonah Ave, Bronx, NY, Plaintiff testified entering Hoüse at
around 1;00 PM. At around 4:00 PM, an altercation occurred and Plaintiff became injured.
Plaintiff alleges he was, "picked up and dragged towards the front door, pushed and shoved by
bouncers."
two men that were the (Canora Tran. p. 32). Plaintiff alleges two causes of action
against Defendant, Rambling House: (1) Defendant was negligent in maintaining the safety of
the premises causing Plaintiff to be injured; (2) Defendant was negligent in hiring, supervising,
and training the security staff Defendant moves pursuant to CPLR 3212 for an order granting
summary judgment dismissing Plaintiff's Amended Complaint in its entirety with prejudice on
the grounds that: (1) the bouncers were third party contractors and Defendant did not have
control over their actions; and (2) Plaintiff's failure to put forth any evidence to show
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Defendant's negligence in properly training, educating, supervising, and managing the bouncers
mandates this cause of action to be dismissed.
On a motion for summary judgment, the moving party must make a prima facie showing
of entitlement to judgment as a matter of law by producing sufficient evidence indicating the
absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ; see
also CPLR 3212[b]). The facts must be viewed "in the light most favorable to the non-moving
party."
(Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citation omitted]).
Once the moving party satisfies their burden, the burden shifts to the opposing party to tender
sufficient evidence, in admissible form, establishing the existence of material issues of fact
which preclude summary judgment and warrants a trial. (Alvarez, 68 NY2d at 324; see also
CPLR 3212[b]).
employees'
"An employer may be vicariously liable for its negligent or intentional
employees'
tortious conduct, so long as the acts were committed in furtherance of the employer's
business. When businesses hire security guards or bouncers to maintain order, the physical force
employment."
used by those bouncers may be within the scope of their (Fauntleroy v EMM
Group Holdings LLC, 133 AD3d 452, 453 [1st Dept 2015][internal citations omitted]). Here,
Defendant argues that the security guards alleged to commit the tortious conduct were
independent contractors, not employees. "The general rule is that a party who retains an
independent contractor, as distinguished from a mere employee or servant, is not liable for the
acts."
independent contractor's negligent (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]).
Defendant claims the bouncers were independent contractors and so it could not be found liable
for their negligence.
"The determination of whether one is an independent contractor generally involves a
question of fact concerning which party controls the methods and means by which work is to be
done."
(Malamood v Kiamesha Concord, Inc., 210 AD2d 26 [1st Dept 1994]). New York case
law gives many factors to be evaluated in determining whether the person is an employee or
independent contraetor, such astbeing on the employer's payroll, providing health insurance,
ability to be fired, etc. (McLaughlan v BR Guest, Inc., 149 AD3d 519 [1st Dept 2017]). General
supervisory control is insufficient to form the basis for imposing liability. (McLaughlan, 149
AD3d at 520). Several factors distinguish the present case from those cited by Defendant in favor
of the presumption of looking to the fact finder on this issue.
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The present case is distinguishable from McLaughlin to the extent that there is evidence
in the record that the officers acted at the express direction of a supervisor of the House.
security
(See, Kouri v Eataly N.Y LLC, 199 AD3d 416 [1st Dept 2021]). Ms. Carty, a manager of House,
testified that she or her father, an owner of House, would instruct the bartenders and bouncers on
how and when to eject patrons from House (Carty Tran. pp 71-72).
"Every single bartender that gets hired, this is like a verbal conversation ... the
same with the bouncers, bouncer that's new there, I'd also always say
thing every
"
that to. If you don't know how to handle something, come and get me
Furthermore, bouncers only remove patrons after being asked by Ms. Carty or the bartenders.
(Carty Tran. p 73).
Q: Generally speaking, do they [bouncers] only remove patrons after being asked
to do so by yourself?
A: Either by myself or if I'm not there, by the bartender.
House"
In addition, the security staff wore specific shirts with "Rambling on the shirts. (Id. p.
75). Requiring uniforms.of the employer is a factor. (See, Meyer v Kumi, 82 AD3d 514 [1st Dept
2011]). Lastly, contrary to Defendant attorney's affirmation, Ms. Carty testified the bouncers
were paid directly by House. (Carty Tran. p. 74).
Q: Did the Rambling House pay all of the bouncers, generally, in cash?
A: Yes, I'm pretty sure, yes.
There is no admissible evidence in the record of any oral or written agreement providing
security services as a third-party contractor beyond the statement of Defendant's counsel. in any
event, the affirmation by counsel fails to establish the existence of the purported contract. (See,
Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). A triable question of fact exists as to
whether the bouncers were employees of House or independent contractors, therefore the motion
to dismiss the first cause of action is denied.
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NO. 85 RECEIVED
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Regarding the claims of negligent hiring, training, supervision, and retention, Defendant
moves to dismiss such claims, asserting Plaintiff has neither sufficiently plead nor put forth any
evidence to show the bouncers had a propensity for the tortious conduct alleged, or that
Defendant had any knowledge of such propensity. Defendant claims Plaintiff's allegations are
based on mere speculation and are insufficient to sustain the cause of action.
"In those instances where an employer cannot be held vicariously liable for torts
committed by its employee, the employer can still be held liable under theories of negligent
hiring and negligent retention. The negligence of the employer in such a case is direct, not
vicarious, and arises from its having placed the employee in a position to cause foreseeable
harm, harm which the injured party most probably would have been spared had the employer
taken reasonable care in making its decision conceming the hiring and retention of the
employee,"
(see Sheila C. v Povich, 11 AD3d 120 [1st Dept 2004]).
However, an essentia1element of a cause of action for negligent hiring and retention is
that the employer knew, or should have known, of the employee's propensity for the sort.of
conduct which caused the injury. Id. A plaintiff must show that "the employer either failed to
exercise reasonable care in the selection of the contractor or had actual or constructive
insufficiency"
knowledge of the contractor's (see Waite v Am. Airlines, Inc., 73 F.Supp.2d 349
[SDNY 1999]). Here, Plaintiff has not put forth any evidence to allege Defendant knew or
bouncers'
should have known of the propensity to commit these acts. (see Hammond v Equinox
Holdings LLC, 193 AD3d 586 [1st Dept 2021]). Plaintiff's failure to sufficiently state the claim
mandates this cause of action to be dismissed.
Accordingly, it is hereby
ORDERED, that the motion for summary judgment by Defendant Rambling House is
granted only to the extent that the plaintiff's claim of negligent hiring, supervising, and training
is dismissed; and it is further
ORDERED, that Defendant Rambling House shall serve a copy of this decision and order
within 45 days with notice of entry.
This constitutes the decision and order of this court.
Dated: December , 2022
Andrew Cohen, J.S.C.
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9uprente (Eaurt of the 9tate of Neur tork
Appellate Binisian: First hthitial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
- - " - - " "" - " " e " " " " of Original
For Court Instance
e " " - a g- - a - a-
LEONARD J. CANORA
DateNotice of Appeal Filed
- against -
RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO Tor Appellate Division
O Civil Action O CPLR article 78 Proceeding E Appeal O Transferred Proceeding
O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78
O CPLR Article 78 O Executive Law § 298
¡ Action Commenced under CPLR 214-g O Habeas Corpus Proceeding
O Eminent Domain O CPLR 5704 Review
O Labor Law 220 or 220-b
Public Oflicers Law § 36
O Real Property Tax Law § 1278
MWM5mrmilmm --. - . .. , .
-
. ., . -. - -
¡ Administrative Review ¡ Business Relationships ¡ Commercial O Contracts
¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law O Estate Matters
¡ Family Court ¡ Mortgage Foreclosure ¡ Miscellaneous ¡ Prisoner Discipline & Parole
¡ Real Property O Statutory ¡ Taxation Torts
(other than foreclosure)
Informational Statement - Civil
Preview
FILED: BRONX COUNTY CLERK 01/20/2023 10:23 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 01/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX LEONARD J. CANORA, Index No. 20816/2020 Plaintiff, NOTICE OF APPEAL v. RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO, Defendants. PLEASE TAKE NOTICE that Defendant RAMBLING HOUSE INC. appeals to the Appellate Division of the First Department from the December 20, 2022 Order (Cohen, J.S.C.) entered in the office of the Clerk of the County of Bronx on or about December 20, 2022, served with Notice of Entry on December 21, 2022. Defendant RAMBLING HOUSE INC. appeals each and every part of the December 20, 2022 Order that denied Defendant RAMBLING HOUSE INC.’s motion for summary judgment dismissing the first cause of action. Dated: New York, New York January 20, 2023 CLARK & FOX BY: Megan K. Foster 135 West 41st Street, 5th Floor New York, NY 10036 Phone: (646) 506-4707 Email: mfoster@clarkfoxlaw.com Attorney for Defendant, Rambling House Inc. TO: Richard E. Noll, Esquire The Noll Law Firm PC 33 Queens Street, Ste 102 Syosset, NY 11791 Attorney for Plaintiff 1 of 13 FILED: BRONX COUNTY CLERK 01/20/2023 10:23 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 01/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX LEONARD CANORA, Plaintiff, Index No. 20816/2020 v. RAMBLING HOUSE INC., JOSEPH KRIPP AND THOMAS DRAGO, Defendants. NOTICE OF APPEAL Megan K. Foster, Esquire CLARK & FOX 135 W. 41st Street, 5th Floor New York, NY 10036 Phone: (646) 506-4707 Fax: (646) 506-3777 Email: mfoster@clarkfoxlaw.com 2 of 13 12/21/2022 10:23 FILED: BRONX COUNTY CLERK 01/20/2023 05:00 AM PM INDEX NO. 20816/2020E 83 NYSCEF DOC. NO. 85 12/21/2022 RECEIVED NYSCEF: 01/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X LEONARD J. CANORA, ORDER AND NOTICE OF ENTRY Plaintiff, Index # 20816/2020E -against- RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO, Defendants. ----------------------------------------------------------------------X COUNSEL: PLEASE TAKE NOTICE, that the Order of the Honorable Andrew J. Cohen, dated December 20, 2020, a true and complete copy of which is attached hereto, was entered with the Clerk of the Court on December 20, 2022. Dated: Syosset, New York December 21, 2022 Yours, etc., Richard E. Noll THE NOLL LAW FIRM, P.C. Attorneys for Plaintiff 485 Underhill Boulevard, Suite 107 Syosset, New York 11791 (516) 307-1199 TO: Clark & Fox Megan K. Foster 135 West 41st Street, 5th Floor New York, NY 10036 646-506-4707 mfoster@clarkfoxlaw.com 31 of of 13 6 FILED: E'ILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/20/2023 12/28/2022 10:23 05 : GB AM INDEX INDEX NO. NO. 20816/2020E 20816/2020E PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 85 82 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/20/2023 12/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, PART IA-4 __________________________________________________________---------X LEONARD CANORA Plaintiff, Index No. 20816/2020E -against- Hon. ANDREW J. COHEN Justice Supreme Court RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO, Defendants, __________________..___________..________________-..-_________________Ç The following papers numbered 1 to were read on this motion (Seq. No. 4) for noticed on Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No(s). Answering Affidavit and Exhibits No(s). Replying Affidavit and Exhibits No(s). Upon the foregoing papers, it is ordered that this motion is resolved in accordance with the annexed decision and order. +; Dated: / Hon. AND J. COHEN, J.S.C. 1. CHECK ONE............................................ o CASE DISPOSED IN ITS ENTI TY CASE STILL ACTIVE 2. MOTION IS.............................................. o GRANTED o DENIED GRANTED IN PART o OTHER 3. CHECK IF APPROPRIATE..................... o SETTLE ORDER o SUBMIT ORDER o SCHEDULE APPEARANCE o FIDUCIARY APPOINTMENT o REFEREE APPOINTMENT 41 of of 13 6 FILED:: BRONX |FILED BRONX COUNTY COUNTY CLERK CLERK 01/20/2023 12 /28 /2022 10:23 05 : G B AM INDEX INDEX NO. NO. 20816/2020E 20816 /2 02 0E PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 82 85 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/20/2023 12/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART 4 LEONARD CANORA, DECISION AND ORDER Plaintiff, Index No. 20816/2020E -against- RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO, Defendants. The following papers, on motion sequence #004, were considered for summary judgment: PAPERS NUMBERED Notice of Motion, annexed Exhibits and Affidavits and Statement of Material Facts..............................50-71 Answering Affidavits, annexed Exhibits and Statement of Material Facts...................................................73-76 Reply and Response to Statement of Material Facts..............................................a.....................78-79 Upon the foregoing papers, it is ordered that Defendant's motion for summary judgment is granted in part. Plaintiff, Mr. Leonard Canora, commenced this action for personal injuries allegedly sustained on March 23, 2019, when he attended the Rambling House (hereafter "House"), a bar and restaurant located at 4292 Katonah Ave, Bronx, NY, Plaintiff testified entering Hoüse at around 1;00 PM. At around 4:00 PM, an altercation occurred and Plaintiff became injured. Plaintiff alleges he was, "picked up and dragged towards the front door, pushed and shoved by bouncers." two men that were the (Canora Tran. p. 32). Plaintiff alleges two causes of action against Defendant, Rambling House: (1) Defendant was negligent in maintaining the safety of the premises causing Plaintiff to be injured; (2) Defendant was negligent in hiring, supervising, and training the security staff Defendant moves pursuant to CPLR 3212 for an order granting summary judgment dismissing Plaintiff's Amended Complaint in its entirety with prejudice on the grounds that: (1) the bouncers were third party contractors and Defendant did not have control over their actions; and (2) Plaintiff's failure to put forth any evidence to show 1 of 4 5 of 13 FILED: E'ILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/20/2023 12 /29/2022 10:23 05 : G G AM INDEX INDEX NO. NO. 20816/2020E 20816/2020E PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 85 82 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/20/2023 12/20/2022 Defendant's negligence in properly training, educating, supervising, and managing the bouncers mandates this cause of action to be dismissed. On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law by producing sufficient evidence indicating the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ; see also CPLR 3212[b]). The facts must be viewed "in the light most favorable to the non-moving party." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citation omitted]). Once the moving party satisfies their burden, the burden shifts to the opposing party to tender sufficient evidence, in admissible form, establishing the existence of material issues of fact which preclude summary judgment and warrants a trial. (Alvarez, 68 NY2d at 324; see also CPLR 3212[b]). employees' "An employer may be vicariously liable for its negligent or intentional employees' tortious conduct, so long as the acts were committed in furtherance of the employer's business. When businesses hire security guards or bouncers to maintain order, the physical force employment." used by those bouncers may be within the scope of their (Fauntleroy v EMM Group Holdings LLC, 133 AD3d 452, 453 [1st Dept 2015][internal citations omitted]). Here, Defendant argues that the security guards alleged to commit the tortious conduct were independent contractors, not employees. "The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the acts." independent contractor's negligent (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]). Defendant claims the bouncers were independent contractors and so it could not be found liable for their negligence. "The determination of whether one is an independent contractor generally involves a question of fact concerning which party controls the methods and means by which work is to be done." (Malamood v Kiamesha Concord, Inc., 210 AD2d 26 [1st Dept 1994]). New York case law gives many factors to be evaluated in determining whether the person is an employee or independent contraetor, such astbeing on the employer's payroll, providing health insurance, ability to be fired, etc. (McLaughlan v BR Guest, Inc., 149 AD3d 519 [1st Dept 2017]). General supervisory control is insufficient to form the basis for imposing liability. (McLaughlan, 149 AD3d at 520). Several factors distinguish the present case from those cited by Defendant in favor of the presumption of looking to the fact finder on this issue. 2 of 4 6 of 13 FILED: F ILED : BRONX BRONX COUNTY CLERK 'tOlfNTY CLERK 01/20/2023 12 /28 /202 2 10:23 05 : G S AM INDEX INDEX NO. NO. 20816/2020E 20816/2020E PM| NYSCEF NYSCEF DOC. DOC. NO. 85 NO. 83 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/20/2023 12/20/2022 The present case is distinguishable from McLaughlin to the extent that there is evidence in the record that the officers acted at the express direction of a supervisor of the House. security (See, Kouri v Eataly N.Y LLC, 199 AD3d 416 [1st Dept 2021]). Ms. Carty, a manager of House, testified that she or her father, an owner of House, would instruct the bartenders and bouncers on how and when to eject patrons from House (Carty Tran. pp 71-72). "Every single bartender that gets hired, this is like a verbal conversation ... the same with the bouncers, bouncer that's new there, I'd also always say thing every " that to. If you don't know how to handle something, come and get me Furthermore, bouncers only remove patrons after being asked by Ms. Carty or the bartenders. (Carty Tran. p 73). Q: Generally speaking, do they [bouncers] only remove patrons after being asked to do so by yourself? A: Either by myself or if I'm not there, by the bartender. House" In addition, the security staff wore specific shirts with "Rambling on the shirts. (Id. p. 75). Requiring uniforms.of the employer is a factor. (See, Meyer v Kumi, 82 AD3d 514 [1st Dept 2011]). Lastly, contrary to Defendant attorney's affirmation, Ms. Carty testified the bouncers were paid directly by House. (Carty Tran. p. 74). Q: Did the Rambling House pay all of the bouncers, generally, in cash? A: Yes, I'm pretty sure, yes. There is no admissible evidence in the record of any oral or written agreement providing security services as a third-party contractor beyond the statement of Defendant's counsel. in any event, the affirmation by counsel fails to establish the existence of the purported contract. (See, Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). A triable question of fact exists as to whether the bouncers were employees of House or independent contractors, therefore the motion to dismiss the first cause of action is denied. 3 of 4 7 of 13 FILED: |F ILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/20/2023 12/29/2022 10:23 05 : GB AM INDEX INDEX NO. NO. 20816/2020E 2 0816/2 02 0E PM| NYSCEF NYSCEF DOC. DOC. NO. 82 NO. 85 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/20/2023 12/20/2022 Regarding the claims of negligent hiring, training, supervision, and retention, Defendant moves to dismiss such claims, asserting Plaintiff has neither sufficiently plead nor put forth any evidence to show the bouncers had a propensity for the tortious conduct alleged, or that Defendant had any knowledge of such propensity. Defendant claims Plaintiff's allegations are based on mere speculation and are insufficient to sustain the cause of action. "In those instances where an employer cannot be held vicariously liable for torts committed by its employee, the employer can still be held liable under theories of negligent hiring and negligent retention. The negligence of the employer in such a case is direct, not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision conceming the hiring and retention of the employee," (see Sheila C. v Povich, 11 AD3d 120 [1st Dept 2004]). However, an essentia1element of a cause of action for negligent hiring and retention is that the employer knew, or should have known, of the employee's propensity for the sort.of conduct which caused the injury. Id. A plaintiff must show that "the employer either failed to exercise reasonable care in the selection of the contractor or had actual or constructive insufficiency" knowledge of the contractor's (see Waite v Am. Airlines, Inc., 73 F.Supp.2d 349 [SDNY 1999]). Here, Plaintiff has not put forth any evidence to allege Defendant knew or bouncers' should have known of the propensity to commit these acts. (see Hammond v Equinox Holdings LLC, 193 AD3d 586 [1st Dept 2021]). Plaintiff's failure to sufficiently state the claim mandates this cause of action to be dismissed. Accordingly, it is hereby ORDERED, that the motion for summary judgment by Defendant Rambling House is granted only to the extent that the plaintiff's claim of negligent hiring, supervising, and training is dismissed; and it is further ORDERED, that Defendant Rambling House shall serve a copy of this decision and order within 45 days with notice of entry. This constitutes the decision and order of this court. Dated: December , 2022 Andrew Cohen, J.S.C. 4 of 4 8 of 13 FILED: BRONX COUNTY CLERK 01/20/2023 10:23 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 01/20/2023 9uprente (Eaurt of the 9tate of Neur tork Appellate Binisian: First hthitial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) - - " - - " "" - " " e " " " " of Original For Court Instance e " " - a g- - a - a- LEONARD J. CANORA DateNotice of Appeal Filed - against - RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO Tor Appellate Division O Civil Action O CPLR article 78 Proceeding E Appeal O Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78 O CPLR Article 78 O Executive Law § 298 ¡ Action Commenced under CPLR 214-g O Habeas Corpus Proceeding O Eminent Domain O CPLR 5704 Review O Labor Law 220 or 220-b Public Oflicers Law § 36 O Real Property Tax Law § 1278 MWM5mrmilmm --. - . .. , . - . ., . -. - - ¡ Administrative Review ¡ Business Relationships ¡ Commercial O Contracts ¡ Declaratory Judgment ¡ Domestic Relations ¡ Election Law O Estate Matters ¡ Family Court ¡ Mortgage Foreclosure ¡ Miscellaneous ¡ Prisoner Discipline & Parole ¡ Real Property O Statutory ¡ Taxation Torts (other than foreclosure) Informational Statement - Civil