Boone v M & G Carting, LLC
2012 NY Slip Op 01739 [93 AD3d 456]
March 8, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 25, 2012


Charles Boone, Appellant,
v
M& G Carting, LLC, Respondent.

—[*1] Steven L. Barkan P.C., Melville (Steven L. Barkan of counsel), for appellant.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about October 26, 2010, which denied plaintiff's motion for a default judgment against defendant and directed entry of a judgment dismissing the action, unanimously affirmed, without costs.

Plaintiff failed to allege facts that would establish that the alleged assault on him by defendant's employee was "within the scope of the employment" and was "generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; see e.g. White v Hampton Mgt. Co. L.L.C., 35 AD3d 243 [2006]; CPLR 3215 [f]). Concur—Tom, J.P., Andrias, Catterson, Moskowitz and Román, JJ.