O'Flaherty v. Columbo
Attorneys and Parties
Brief Summary
Construction/worksite safety and employer liability for intentional torts by non-employees occurring off-site.
The Supreme Court, New York County denied New Land Contracting's cross-motion for summary judgment seeking dismissal of claims for assault, battery, intentional infliction of emotional distress, breach of duty to ensure worksite safety, and negligent hiring/supervision.
The denial of summary judgment; the Appellate Division reversed and dismissed all claims against New Land Contracting.
Undisputed testimony showed the assault occurred several storefronts away from the jobsite; the assailants (Joseph Columbo and Justin Zinck) were not New Land employees; New Land owed no duty under Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; it did not own/control the premises, did not employ or supervise the parties, had no notice of violent propensities, and plaintiff failed to oppose the motion or raise a triable issue.
Background
Plaintiff Brian O'Flaherty alleged he was assaulted by Joseph Columbo and Justin Zinck in connection with construction activity. He asserted claims against multiple defendants, including New Land Contracting, for assault, battery, intentional infliction of emotional distress, breach of a duty to ensure worksite safety, and negligent hiring and supervision. Testimony established the incident occurred several storefronts from the jobsite and that neither alleged assailant worked for New Land. New Land neither employed nor supervised plaintiff or the assailants and did not own, operate, maintain, or control the premises.
Lower Court Decision
By order entered October 25, 2024 (Lebovits, J.), the Supreme Court, New York County denied New Land Contracting's cross-motion for summary judgment dismissing plaintiff's tort and negligent hiring/supervision claims.
Appellate Division Reversal
The Appellate Division unanimously reversed, granted New Land's cross-motion, and dismissed the claims. The Court held New Land owed no duty of care where the assault occurred off-site and New Land neither owned/controlled the premises nor employed or supervised plaintiff or the alleged assailants (citing Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Jackson v Bd. of Educ. of City of N.Y., 30 AD3d 57 [1st Dept 2006]). There was no evidence New Land knew or should have known of violent propensities to support negligent hiring/supervision (citing Rodriguez v Manhattan Restoration LLC, 233 AD3d 555 [1st Dept 2024]). Intentional tort claims also failed absent an employment/supervisory relationship (citing Summors v Port Auth. of N.Y. & N.J., 203 AD3d 558 [1st Dept 2022]). The Court noted plaintiff did not oppose the cross-motion below or file a responding brief on appeal. The off-site location and lack of employment relationship also supported summary judgment (citing Yonkers Ave. Dodge Inc. v BZ Results, LLC, 95 AD3d 774 [1st Dept 2012]).
Legal Significance
Reaffirms that a contractor with no ownership/control of the premises and no employment or supervisory relationship to the parties owes no duty to protect against an off-site assault and cannot be held vicariously liable for intentional torts of non-employees. Negligent hiring/supervision requires an employment relationship and notice of violent propensities; absent such evidence, claims fail at summary judgment.
Contractors are not liable for off-site assaults by non-employees where they lack control over the premises and no duty exists; plaintiffs must present admissible evidence of duty, control, employment, or notice to survive summary judgment.