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Late Intentional Torts Claims Shall Not Pass (NY)

July 18, 2018

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Plaintiffs attempting to circumvent an intentional tort’s short statute of limitations by reframing it as a negligence action was recently addressed in the July 5, 2018 Third Department decision, <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/07/McCarthy-v.-Mario-Enterprises.pdf">McCarthy v. Mario Enterprises</a>,</em> 2018 NY Slip Op 05006, where a lower court’s dismissal of a plaintiff’s concealed intentional tort claim’s dismissal was affirmed, while the lower court’s dismissal of the hiring and supervising was reversed.
In <em>McCarthy</em>, an employee bouncer punched a person in the face causing injuries.  More than two years later, plaintiff commenced an action against the bouncer and the entities that operated the bar and employed the bouncer.  Plaintiff’s complaint alleged a breach of duty to keep the premises safe and the negligent hiring, supervising, or retaining of the employees.  Defendants filed a pre-answer motion to dismiss the complaint which was granted by the lower court.  Plaintiff only appealed as to the operator of the bar and the employer of the bouncer.
The 3<sup>rd</sup> Department affirmed the dismissal of the claim to keep the premises safe, but reversed the claim for negligent hiring, supervising, or retaining the employee.  In doing so, the 3<sup>rd</sup> Department reasoned that plaintiff’s breach of duty to keep the premises safe, as already separately alleging negligent hiring and supervising claims, was a reframing of the employee’s intentional tort as a negligent tort to circumvent the statute of limitations. As such, the claim was filed past the statute of limitations and the lower court’s dismissal as to this part was affirmed.
However, the Third Department ruled that the negligence of an employer was not transformed into intentional conduct simply because an employee’s conduct was intentional.  As such, the three year statute of limitation still applied.  The operator and employer could still be held liable for negligently hiring, supervising, or retaining an employee despite knowing or should have knowing the employee’s propensity to assault or intentionally inflict harm on others.  As such, the lower court’s dismissal as to the negligent hiring, supervising, or retaining of an employee was reversed.
Despite the reversal of the negligent hiring, supervising, or retaining dismissal, the ruling in <em>McCarthy v. Mario Enterprises, Inc. </em>affirmed a powerful tool of defense counsel.  According to <em>McCarthy</em>, smart, aggressive defense counsel may dismiss a plaintiff’s late-filed intentional torts, reframed as negligence actions.  Such a strategy when taken may lower an employer and their insurer’s exposure, as well as their legal costs, by simplifying the plaintiff’s action for discovery, motion practice, appeals, and trial.  Thanks to Jonathan Pincus for his contribution to this post.  Please email <a href="mailto:VTerrasi@wcmlaw.com">Vincent Terrasi</a> with any questions.

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