Defendant Hampton Management Company, L.L.C. ("Hampton") moves for summary judgment dismissing Plaintiff's Complaint, and Plaintiff cross-moves for summary judgment against Hampton. The motion and cross-motion are decided as follows:

This action was brought by Plaintiff against defendants Hampton and Sergio Jimenez ("Jimenez") for alleged acts of sexual assault and harassment committed by Jimenez on two occasions: October 24 and 27, 2003. Plaintiff was a tenant at 2600 Netherland Avenue, Bronx, New York, a building managed by Hampton, when, according to Plaintiff's account, she was involuntarily kissed by Jimenez, an employee hired by Hampton.

It does not appear to be disputed that Jimenez has never appeared to defend this proceeding. Plaintiff's claims against Hampton include, inter alia, negligent hiring, supervision and control, as well as vicarious liability for the acts of Jimenez. Movant bases the application for summary judgment on the depositions of Plaintiff, and of movant's building superintendent, Stephen King, as well as on the affidavit of Everette Singh, a human resources employee, describing the "clean" background check of Jimenez.

Clearing aside all of the argumentative posturing of the parties and the details unnecessary to this decision, the account rendered by Plaintiff at deposition essentially sets forth the following: At some point in late August 2003, Plaintiff learned from her teenage daughter that Jimenez had "looked" at her in what Plaintiff interpreted to be a seductive way, and at the same time Jimenez had asked the daughter if her mother was at home. Plaintiff also said that Jimenez had seemed to her to be "high" on occasion. Plaintiff concedes that she did not complain to anyone at Hampton about any of these things. She also states that she mentioned these issues to her daughter's father (who does not live in the building), but does not know if he did or said anything. Thereafter, on October 24, 2003, according to Plaintiff, Jimenez surprised her while she stood at the concierge's desk, kissing her on the cheek and calling her "sweetie". The encounter took one second, and her only response to either Jimenez or the substitute concierge was "What was that about?" or words to that effect. She concedes that she made no complaint after that. Then, on October 27, 2003, upon entering the building, in the presence of her daughter [*2]and various contract renovation workers, Plaintiff was approached by Jimenez and kissed on the mouth for perhaps "thirty seconds". Plaintiff objected strongly to this contact, and, within a day, complained to management, whereupon Jimenez was suspended and did not thereafter return to work. Plaintiff also complains that she smelled liquor on Jimenez when he committed his acts of sexual assault.

Defendant's account, by the King deposition, the affidavit of Everette Singh, and the documents submitted, is that there were never any prior complaints about Jimenez, and no known instances of drunken or "high" behavior or appearance, and that Jimenez' record, as checked before his hiring, was devoid of any indication that he might commit the acts complained of. Defendant asserts that it did not know of Plaintiff's concerns or purported injuries until after the complaints made by Plaintiff on October 28, 2003, and, immediately upon learning of the problem, took decisive action to address it. Based on the totality of the record, Defendant moves for summary judgment, arguing that it had no notice of any proclivity or of any act of Jimenez (prior to October 27, 2003), and, therefore, was never negligent in failing to prevent such act. Defendant has thus made out a prima facie case of entitlement to summary judgment.

Plaintiff responds with her own cross-motion for summary judgment, as well as with opposition to Hampton's application, both of which revolve primarily around two brief affidavits. First, a four paragraph affidavit of Gary Jones, the father of Plaintiff's daughter, alleges that he was told by Plaintiff in August 2003 of "inappropriate and sexual innuendoes" made by Jimenez to his daughter and that he spoke with great emotion to Mr. King about this, warning him of the dangerous situation in the building. Mr. Jones goes on to state that he is certain that nothing was done to prevent a further act by Jimenez, although he does not make clear how he knows this (other than the actual happening of the claimed assaults). A second affidavit, by Plaintiff, refers to her daughter informing her that Jimenez "made lewd remarks along with sexual innuendoes" to both her daughter and herself. She describes telling Mr. Jones about this, and continues to recount what Mr. Jones then told to Mr. King, as well as Mr. King's purported reassurances that the matter would be handled.

Plaintiff also raises arguments concerning the timing of the furnishing of Plaintiff's deposition transcript to her attorney, but these arguments are without merit, and, in view of the fact that Plaintiff has, since that time, reviewed and signed her deposition transcript, the issue need not elicit further comment.

Defendant attempts to argue that purported notice to Hampton concerning "lewd" comments to Plaintiff's daughter would be insufficient, as a matter of law, to put Hampton on notice of a possible threat of sexual assault on a different individual, such as Plaintiff. In this, movant is in error. If sufficient facts were adduced to suggest lewd activity or comment toward the daughter, such facts could indeed constitute notice of a danger to others, but, as is made clear, infra, the test is whether real facts, or merely conclusory statements, are set forth.

Under some circumstances, the accounts rendered in the affidavits might be sufficient to set forth issues of fact which preclude summary judgment. However, in the view of the Court, this is not one of those circumstances. The summary affidavits are devoid of necessary detail, appear tailored for the specific purpose of defeating summary judgment, and contradict testimony set forth at length in Plaintiff's deposition.

Plaintiff clearly testified at deposition that the conduct of Jimenez, prior to October 24, [*3]2003, was limited to giving her daughter a "look" (which Plaintiff did not witness) and asking whether Plaintiff was at home. For Plaintiff, or another witness on her behalf, to now come forward with sudden new "facts" as to "lewd remarks" and "sexual innuendoes" would require, at the very least, far greater specificity as to what was said, even if the conflicting, newly minted, account were to be credited at all. Whether it can now be claimed that Jimenez said anything offensive, and that such offensive words were repeated to the superintendent, depends in great measure on precisely what was supposed to have been said. Plaintiff had an opportunity to set this forth in the opposition to the motion and failed entirely to do so. It appears, therefore, that the factual controversy asserted by Plaintiff here is "feigned" rather than real, and advanced solely for the purpose of defeating Hampton's motion. See Perez v. Bronx Park Associates, 285 AD2d 402.

The account rendered at deposition also makes clear that Plaintiff did not have any actual knowledge of whether Mr. Jones spoke to the super before October 27, 2003. Thus, Plaintiff's new affidavit, submitted to defeat summary judgment, and claiming knowledge of Mr. Jones' conversation with the super, is either an unexplained contradiction of her earlier testimony, or is based entirely on Mr. Jones' description to her of his actions. If the latter, it is without probative value.

It need not be belabored that Hampton has no vicarious liability for the acts complained of. Despite Plaintiff's strenuous arguments to the contrary, it cannot be argued that the sexual assaults by Jimenez were within the scope of his employment. Judith M.v. Sisters of Charity Hosp., 93 NY2d 932. Nor has Plaintiff made any showing, in response to movant's assertions, that Hampton had any reason to suspect a proclivity on the part of Jimenez, or that anything in Jimenez' record should have prevented his being hired. If Plaintiff has no evidence of this at the close of discovery, it is clear that Plaintiff cannot overcome the prima facie case for summary judgment made out by Hampton.

By failing to put forth any specific facts showing notice to Hampton, Plaintiff has in effect conceded that there is no provable claim of negligent supervision or control on the part of this Defendant. Defendant's contention that it had never received complaints about Jimenez (prior to October 27, 2003) is essentially unchallenged. Plaintiff's concession at deposition that she made no complaints to appropriate Hampton personnel about the "look" toward her daughter, the alleged "high" or "drunken" demeanor, or the brief kiss to her cheek on October 24, 2003, effectively shows that Hampton was prevented from receiving notice, and responding by taking action, until it was informed of the acts of October 27, 2003, whereafter, it is conceded, appropriate action was in fact taken. (Even Plaintiff's claimed reaction at the desk of the concierge on October 24, 2003 was equivocal, stating merely, as she did, "What was that all about?" and failing to clearly register her disapproval. Thus, even if the substitute concierge could be charged, under more egregious circumstances, with a duty to convey an account of this event to superiors, such possible duty would not apply here, where the purported wrong was so unclear to the observer).

The claims belatedly set forth in the affidavits of Plaintiff and Gary Jones, are, in the absence of specifics and in their contradiction of earlier deposition testimony, devoid of sufficient probative value to overcome the prima facie showing made by Hampton. There is no doubt that Plaintiff can maintain her action against Jimenez for his wrongful conduct, but [*4]Hampton has not been shown to bear responsibility for such acts.

Plaintiff's cross-motion for summary judgment is therefore denied in all respects.

Further, by reason of the foregoing, Hampton's motion for summary judgment dismissing the Complaint as to it is granted, and the claims against Hampton are dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Dated: January 3, 2006____________________________

MARK FRIEDLANDER, J.S.C.