Defendants L & B Gardens, Inc. and L & B Gardens, Inc. d/b/a L & B Spumoni Gardens (L & B Gardens) move, pursuant to CPLR 3211 (a) (7) and 3212, for summary judgment dismissing the complaint of plaintiffs Christina D. Horvath, as Administratrix of the Estate of Joseph J. Horvath a/k/a Joseph Horvath, Jr. Deceased, and John Kolompar (collectively, plaintiffs or individually, Christina, and Kolompar respectively) on the grounds that there are no issues of fact with regard to liability.

This action arises out of an altercation that began at a gas station in Brooklyn on February 24, 2006 and continued in front of a private residence at 8665 26th Avenue, Brooklyn, in the early hours of February 25, 2006. As a result of that fight, Joseph J. Horvath a/k/a Joseph Horvath, Jr. (Horvath) and Kolompar were injured. Horvath was transported by an ambulance to Lutheran Hospital where he was pronounced dead on the morning of February 25, 2006. Thereafter, his sister Christina was appointed administratrix of his estate.

On February 24, 2006, Horvath had been "hanging out" with a group of friends at the Exxon gas station located near the intersection of Stillwell Avenue and 86th Avenue when an argument began. During the course of the argument, Horvath smashed and broke the windshield of a vehicle with a baseball bat. The vehicle was owned by another person who was later identified as Bofiril Toxqui (Toxqui). Toxqui, a delivery agent at L & B Gardens had been working that day, but had purportedly completed his shift assignment and had gone to the gas station to purchase lottery tickets. One of the men in Horvath's group, Jonathan Mendez, allegedly hit Toxqui on the head. Toxqui left the gas station and went to L & B Gardens after his attempts to get help from a police officer nearby proved futile. The officer requested that Toxqui wait until his colleague arrived before they could go and look for the perpetrators. After [*2]waiting a while, Toxqui left the officer and determined that the perpetrators, Horvath and his friends, were only a few blocks away at 8655 on 26th Avenue. Toxqui and four others also later identified as Leonard Kern (Kern), Rogelio Espinoza (Rogelio), Daniel Espinoza (Daniel) and Billy Bilotti (Billy), some of whom worked for L & B Gardens, went back to 8655 26th Avenue where they observed that the Horvath group went after the incident at the gas station. An argument ensued and erupted into a street brawl between the two groups, Horvath's group and Toxqui's group. Horvath and Kolompar were injured and Daniel was stabbed in the leg. 911 was called and an ambulance arrived at the scene and Horvath was taken away to Lutheran Hospital. The medical chart stated that Horvath had sustained a puncture wound to his right flank area and was unresponsive. Horvath was pronounced dead that morning.

Plaintiff brings this action and alleges in the complaint that Toxqui returned to L & B Gardens after the windshield incident to mobilize his alleged manager, Kern, and other employees of L & B Gardens for revenge and that the employees were acting in the scope of employment when they engaged in the fight. Plaintiff further claims that L & B Gardens negligently hired and negligently supervised the employees and, therefore, L & B Gardens is liable for the injuries and wrongful death of Horvath as well as all damages plaintiff incurred from this incident.

L & B Gardens moves for summary judgment and denies liability on the grounds that the assault that occurred "was outside the scope of employment of L & B Gardens' employees and has no legitimate business purpose." L & B Gardens further asserts that plaintiffs have failed to establish a prima facie case for negligent hiring.

L & B Gardens explains that its restaurant and pizzeria is located more than six blocks from the location where the fight occurred and that the fight did not take place during its business hours as L & B Gardens had already closed for the night. L & B Gardens contends that "the fight is wholly unrelated to the business of L & B Gardens." Even though L & B Gardens admits that Kern is its employee, it clarifies that Kern "has no ownership interest or managerial position," and that Kern's duties consist of cooking and planning the menus. L & B Gardens claims that Kern does not take orders, process deliveries, oversee delivery staff, or engage in any such managerial duties, and that at the time of this incident, Kern was not working. L & B Gardens claims that Kern's shift on the night of February 24, 2006 "began at approximately 4:00 p.m. and ended between 11:30 p.m. and midnight" and that usually "L & B Gardens closed . . . between 11:00 and 11:30 p.m." L & B Gardens argues that since the gas station altercation occurred thereafter, wherein Toxqui's delivery shift had ended, L & B Gardens could not have been open at the time of the fight and, therefore, its employees could not have been acting within the scope of employment.

Narrating its version of events, L & B Gardens states that an argument involving Horvath on February 24, 2006 resulted in Horvath smashing the windshield of a car with a baseball bat. L & B Gardens claims that "Joseph Mendez punched an individual at the gas [*3]station in the face and head." L & B Gardens narrates that following that incident, Horvath and his friends left the gas station for Christina's house at 8655 26th Avenue, a couple of blocks away. L & B Gardens claims that Christina and her boyfriend, Kolompar, were hosting a party at the house that night.

L & B Gardens recounts that shortly after Horvath and his friends arrived at Christina's house, it was announced that a group of men were outside the house. Soon, Horvath, Christina, Mendez and Kolompar "were already on the porch." Subsequently, "[a] fight ensued in front of 8665 26th Avenue and in the street." As a result of the fight, Horvath and Kolompar were injured; police and an ambulance were called to the scene and Horvath was transported to Lutheran Hospital where he died on February 25, 2005.

L & B Gardens re-emphasizes that it never directed any of its employees to engage in a fight and that the incident that erupted at the Exxon gas station which eventually led to the fight in front of 8665 26th Avenue "occurred after L & B Gardens had closed for the night." L & B Gardens also reiterates that plaintiff has failed to identify any of the alleged employees of L & B Gardens sued as John Doe # 1-5 and that, even if they had, the assault and battery occurred "completely outside the scope of employment" and "did not further any business purpose." L & B Gardens asserts that "there is no evidence of who stabbed the decedent Mr. Horvath or Mr. Kolompar" and that Kern and "the unidentified assailants known only as John Does No. 1-5 were not acting on behalf of L & B Spumoni Gardens." Relying on Carnegie, L & B Gardens argues that the employees conduct was not foreseeable and that the assault was for personal motives unrelated to the furtherance of the business of L & B Gardens (see generally Carnegie v J.P. Phillips, Inc., 28 NY2d 599, 600 [2006]). L & B Gardens claims that these actions are outside the duties that the alleged employees may have had as cooks, waiters or delivery persons and do not "serve any discernible business purpose." Consequently, L & B Gardens requests that the court grant summary judgment in its favor dismissing plaintiffs' complaint as against L & B Gardens.

With respect to plaintiffs' allegations of negligent hiring, L & B Gardens asserts that the claim fails because plaintiffs have not offered any evidence to put L & B Gardens on notice of the violent propensities of Kern or the John Does (1-5), and that their conduct was not foreseeable. L & B Gardens also argues that no proximate cause has been established between Horvath's and Kolompar's injuries, or Horvath's wrongful death and the hiring of the alleged employees. L & B Gardens asserts that plaintiffs' claims of negligent hiring must fail as a matter of law for lack of evidentiary support.

Plaintiffs insist that Kern was a manager at L & B Gardens and that the claim that Kern was merely an employee acting outside the scope of employment was without basis. Plaintiffs strongly contend that the testimony of Pauline Maher, a part owner of L & B Gardens, indicates that her sister Camille was the manager at the restaurant but that aside from her, Leonard Kern was also a manager. According to plaintiffs, there is a dispute as to the time that the conversation between Kern and Toxqui took place after the altercation occurred at the gas station and that L & B Gardens "concedes in its motion that Kern worked at least until midnight." Plaintiffs also suggest that there was no definite time when the group stopped working and that Kern directed the employees to go to Christina's house. In addition, plaintiffs posit that as Horvath arrived at Lutheran Medical Center at 12.50 AM on the ambulance, L & B Gardens' claim "that the altercation happened later than that [is] flatly untrue." Plaintiffs assert that the group that went to the house included Kern, Rogelio, Daniel, Toxqui and Bilotti, and that Rogelio admitted to stabbing Kolompar at his criminal trial. Plaintiffs note that all defendants have testified as to various assaults that occurred that night. Plaintiffs argue that when the group arrived at the house, it was Kern who led the group and yelled, "why are you trying to rob my kid, you know, my driver?" and that Kern also yelled, "[d]id you rob my guy?" According to plaintiffs, that statement proves that Kern was a manager who was acting within the scope of employment and asserting his authority."Plaintiffs describe the exchanges that transpired between Toxqui and three of the four "kids" after Toxqui had parked at the pump of the Exxon gas station. Plaintiffs state that one of the kids asked Toxqui several times how much money he has, another broke the rear windshield of Toxqui's small red car with a baseball bat and the third kid hit Toxqui on his head (see Transcript of Toxqui's criminal trial testimony, p 34, annexed as Exhibit F to plaintiffs' cross motion papers). Plaintiffs recount that Toxqui testified that he had been working as a delivery agent for L & B Gardens and had gone to the gas station to purchase lottery tickets. Toxqui also testified that after the altercation at the gas station he had tried to get help from the police but a police officer he contacted close by asked him to wait until his or her colleague arrived, and that, as the other officer was not forthcoming and it [*5]appeared that the kids might have disappeared, he drove toward the kids to ascertain where they were going. After Toxqui had formed an opinion as to the general vicinity where the kids might be, he went back to L & B Gardens where Kern and the others joined him and then went to the house.

Plaintiffs also reference Rogelio's testimony that Kern was "his manager and had taught him how to work" and that it was Kern who yelled, "Why you try to rob my driver ..." when they arrived at the house. Plaintiffs note that Rogelio, who at the time had worked at L & B Gardens as a waiter, testified on cross-examination that Kern "threw the first punch." Plaintiffs further claim that Daniel also indicated in his testimony that Kern announced himself to the Horvath group that "he was the manager of Spumoni Gardens and that the group had beat his driver and tried to rob him." Plaintiffs also infer from Kern's exercise of his "Fifth Amendment right to not answer questions about this incident," that Kern, thereby, gave "a negative presumption against himself and [L & G Gardens]."

In essence, plaintiffs' position is that Kern, a manager, led a group of L & B Gardens employees to avenge the treatment meted out to one of his employees, Toxqui, and that after the ensuing confrontation Horvath died. Plaintiffs argue that Kern did not act in his personal interest but for business purposes. Plaintiffs further emphasize that Kern's description of Toxqui as "his guy" and his inquiry, "did you rob my guy" speaks to his authority and his belief that "he was acting within the scope of his authority as manager." Distinguishing Carnegie as devoid of facts in support of the proposition that the assault was for personal motive, plaintiffs argue that, here, the employees' purpose of going to the house "was to assist the manager [Kern] in exacting retribution and protecting his guy' or employee." Plaintiffs contend that questions of fact exist "as to whether these were acts in furtherance of their employment at [L & B Gardens]."

In reply, L & B Gardens frames this incident as a family matter where Rogelio was defending his brother, Daniel, and his brother-in law, Toxqui, and that there is no nexus between the occurrence and L & B Gardens. L & B Gardens argues that neither Rogelio nor Bilotti worked at L & B Gardens when the incident occurred. It adds that Rogelio, the only person charged with a crime, was eventually acquitted. Describing the fight, L & B Gardens recounts Daniel's testimony that when their group arrived at the house, the Horvath group "threw Lenny on the floor and they got on top of him ... choking him and punching him." Daniel testified that he felt "terrible" and that while helping Lenny he was stabbed in the leg which induced Rogelio, his brother, to come to his aid. Daniel testified that as Rogelio was defending him, Rogelio picked up a knife that was lying on the floor and stabbed the person who had attacked Daniel. Re-asserting that this was a family-related incident as opposed to an incident that occurred within the scope of employment, L & B Gardens challenges the applicability of the doctrine of respondent superior in that a fight cannot be perceived to be part of the normal duties of its employees. It wonders what the benefit would be to it, as an employer, to order its employees to participate in a fight when [*6]such a purpose is foreign to its interests. L & B Gardens notes Rogelio's testimony that, after the incident, he took his brother, Daniel, home and that the others went to their respective homes and did not return to the restaurant because the restaurant was closed. With regard to Bilotti, L & B Gardens states categorically that Bilotti was not its employee.

In sum, L & B Gardens contends that the fight had no legitimate purpose or benefit to its business and that it did not occur within the scope of employment. It debunks as false, all claims that Kern was a manager and reiterates its earlier argument that a prima facie case has not been made for negligent hiring or supervision. In addition, as the defendants were not working when the incident occurred, L & B Gardens argues that it owed no duty, and that there is no evidence to suggest that it was unreasonable for L & B Gardens to employ Kern or any other of the involved employees.

"Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment (Fernandez v Rustic Inn, Inc., 60 AD3d 893, 896 [2009]; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Significantly, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business (see Carnegie v J.P. Phillips, Inc., 28 AD3d 599, 600 [2006]; Schuhmann v McBride, 23 AD3d 542, 543 [2005]). In the instant action, the alleged tortious conduct of Regan and Plaza was, as a matter of law, unrelated to the furtherance of QNCC's business (see Fernandez v Rustic Inn, Inc., 60 AD3d at 896; Carnegie v J.P. Phillips, Inc., 28 AD3d at 600)."

(Lombardo v. Mastec North America, Inc. 68 AD3d 935, 937 [2009]).

Further:

"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment (Riviello v Waldron, 47 NY2d 297, 304 [1979]). If, however, an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable' (Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 13 [1921])."

(RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158, 164 [2004]);

see also Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). [*7]

More specifically, "[a]n 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" (Yeboah v Snapple, Inc., 286 AD2d 204, 204-205 [2001]; see also Kwak v Wolfenson, 258 AD2d 418, 418 [1999], citing Riviello v Waldron, 47 NY2d 297, 303 [1979]).

Applying these precepts, the court finds that there is no basis in law to support the notion that the tortious conduct of L & B Gardens' employees, even if proven, was in furtherance of L & B Gardens' business or that their duties required them to carry out that assault. Even assuming the employment status of the alleged employees, their conduct cannot be said to be "foreseeable and a natural incident of the employment." Waiters, cooks and kitchen staff do not engage in such conduct in discharging their normal duties. Plaintiffs' efforts to bootstrap the theory of respondeat superior and vicarious liability in order to implicate L & B Gardens, as an employer, are unavailing and cannot be the basis for finding L & B Gardens liable under these circumstances.

In Judith M. v Sisters of Charity Hospital, the Court of Appeals reiterated its well settled jurisprudence in determining the scope of employment where the doctrine of respondeat superior is asserted to impute vicarious liability to employers (93 NY2d 932, 933 [1999]). The Judith M. Court held that where "an employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable'" (id. quoting Jones v Weigand, 134 App Div 644, 645 [1909], quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 13 [1921]). Just as the Judith M court found that "[a]ssuming plaintiff's allegations of sexual abuse are true, it is clear that the employee [t]here departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business" (Judith M. Sisters of Charity, 93NY2d at 933), Kern and the other employees also "departed from [their] duties for solely personal motives unrelated to the furtherance of [L & B Gardens'] business" (id.). Hence, L & B Gardens cannot be held liable for their employees' unforeseeable conduct .

To be sure, Kern and the other employees, assuming such employment status was ascertained, were not bouncers who may occasionally apply force in carrying out their duties. More importantly, this incident neither occurred at L & B Gardens' premises nor during its regular hours of operation. There is no justifiable reason to suggest that L & B Gardens in any way instigated or condoned its employees getting into a fight away from its premises. Plaintiffs provide no evidence of the legitimate benefit of such a fight to L & B Gardens' business. By no stretch of the imagination can it be said that the conduct of the employees was for a purpose reasonably believed to be in the best interests of L & B Gardens.

Similarly, plaintiffs' allegations of negligent hiring are dismissed as "no due notice" that defendants had "vicious propensities" has been established (see Lombardo v Mastec North America, Inc., 68 AD3d at 937). Even if that were the case and such vicious propensities had been demonstrated, the court cannot emphasize enough that this incident did [*8]not occur on the premises of L & B Gardens, did not involve its business, served no legitimate business purpose, was not "foreseeable," and was "unrelated to the furtherance of [L & B Gardens'] business" (Id. at 937). Not a scintilla of evidence exists to suggest otherwise.

Accordingly, defendants' motion for summary judgment is granted and plaintiffs' action against L & B Gardens is dismissed.

This constitutes the decision, order and judgment of the court.

ENTER,

J.S.C.