Cort v. Marshall's Department Store et al

Filing 37

MEMORANDUM & ORDER re 36 Motion, For the reasons stated above. Defendant's motion for summary judgment (Dkt. 36) is GRANTED. The Clerk of Court is respectfully DIRECTED to enter judgment for Defendant and to close this case. So Ordered by Judge Nicholas G. Garaufis on 12/18/2017. (Lee, Tiffeny)

p/f
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

CAROLINE CORT,

Plaintiff,
MEMORANDUM & ORDER

-against14-CV-7385(NGG)
(RER)
MARSHALLS DEPARTMENT STORE,et al.
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Caroline Cert brings this diversity action against Marshalls Department Store

("Marshalls" or "Defendant"^)for injuries that she incurred when she was attacked in a
Marshalls location in Brooklyn. Before the court is Defendant's motion for summary judgment.

(Def. Mot.for Summ. J.(Dkt. 36).) For the reasons that follow,the court GRANTS Defendant's
motion.

I.

BACKGROUND

This case arises from a "feud" between two teenagers that culminated in a brawl in a

Brooklyn department store.^ On December 19,2013,Plaintiff and her sister visited the
Marshalls store in the Gateway Center in Brooklyn. (PI. Opp'n to Def. Statement of Material

Facts("PI. R. 56.1 Counterstatement")(Dkt. 36-18)

1-2; Tr. ofPI. Dep.,Part 1 of2("PI. Dep.

'Although Plaintiffs Amended Complaint also names three unknown Marshalls employees—^UNKNOWN
Marshall's MANAGER A; MANAGER B;UNKNOWN SECURITY PERSONNEL B"—as defendants, Plaintiff

has not identified these individuals or served process on them within 90 days ofthe filing ofthe Amended
Complaint, as Rule 4(m)ofthe Federal Rules of Civil Procedure requires. Those defendants are therefore
dismissed.

^ The following factual background is largely taken fi-om Plaintiffs account ofthe incident. (See Tr. ofPI. Dep.,
Part 1 of2("PI. Dep. I")(Dkt. 36-8).)
1

I")(Dkt. 36-8) 17:16-21:24.) As the two entered the store, Plaintiff heard a"rowdy" woman,

whom Plaintiff believed to be a fellow customer,"[o]n the phone yelling foul language." (PI.
Dep. 124:17-25.) As Plaintiff began shopping with her sister, she noticed that the woman was
following them through the store and watching Plaintiffs sister. (Id. 28:19-30:4.) Plaintiffs

sister recognized the woman as a Marshalls employee, Tiariyani Frazier,^ whom she had knovm
several years earlier, apparently because the two had dated the same person. (Id 30:11, 32:4; Tr.

ofPI. Dep., Part 2 of2("PI. Dep. II")(Dkt. 36-9) 85:16-24.) Soon thereafter. Plaintiff claims,
Frazier donned a hooded sweatshirt and accosted Plaintiff and her sister,"popp[ing] out ofthe
clothes" in the women's section ofthe store, taking out her earrings, and threatening to fight

Plaintiff and her sister. (PI. Dep. 132:21-38:10.) At some point during this initial confrontation,
Frazier "slightly" hit Plaintiffs sister in the head with the sleeve of her sweatshirt or jacket. (PI.
R. 56.1 Coimterstatement ^ 12(citing Statement of O.E.(Dkt. 36-25)).)
Plaintiff and her sister moved to the check-out area at the front ofthe store, where they

complained to a cashier about Frazier's behavior and asked to speak with the store manager.

(Id 45:20-47:3.) Eventually, manager Icilda Solomon arrived, sent Frazier to an employee break
room in the back ofthe store, and asked Plaintiff and her sister to provide a written statement

describing the incident.^ Qd 49:10-50:19.) As Plaintiff and her sister waited by the cash
registers, Frazier's aunt and cousin—^Malondya Holt and Aliyah Johnson, respectively—entered

^ The parties and witnesses in this case sometimes refer to Frazier as "Tiariyquni" or "Frazer." The court retains the
spelling used in its December 29,2015, Memorandum and Order(Dkt. 16).
* Plaintiffs sister's statement suggests that the events preceding the fight were less menacing than Plaintiffrecalled
in her deposition. Plaintiffs sister stated at the time that she "saw [Frazier] today she was following behind me
starting with me doing little threats so I was passing by she was trying on a jacket I passed by and she slightly hit me
on my head with Ihe jacket." (Statement of O.E.) This contemporaneous statement does not, the court notes,
substantiate Plaintiffs claims that Frazier threatened to kill her or her sister, that Frazier physically confronted the
two, or that Frazier took off her earrings in anticipation ofa fight. Ofcomse,on a motion for summaryjudgment,
the court's task is not "to weigh the evidence and determine the truth ofthe matter but to determine whether there is
a genuine issue for trial." Anderson v. Libertv Lobbv. Inc.. 477 U.S.242,249(1986).

the store and set upon Plaintiff and her sister, inflicting a beating that left Plaintiff with a
concussion, a broken arm, bruising, and a lingering eye problem. (PL R. 56,1 Counterstatement

111111,13; PL Dep. 154:21-22, 58:5-73:25; PL Dep. II 91:5-10, 93:20-24, 94:17-96:8,107:25110:2,119:16-120:16; Arrest Report(Dkt. 36-27).)
On December 18,2014,Plaintifffiled suit in this court against Defendant, Frazier, Holt,

Johnson, and unidentified Marshalls employees, asserting claims for assault, battery, negligent

hiring and retention, negligent supervision and training, and negligent infliction ofemotional

distress. (Compl.(Dkt. 1).) Plaintiff voluntarily withdrew her claims against all individual

defendants in order to satisfy complete diversity ofcitizenship.^ See 28 U.S.C. § 1332(a).
Defendant thereafter moved to dismiss all claims pursuant to Rule 12(b)(6) ofthe Federal Rules

of Civil Procedure. (Mot. to Dismiss(Dkt. 13); Mem.in Supp. of Mot. to Dismiss("Def.

Mem.")(Dkt. 13-5).^) On December 29,2015,the court granted Defendant's motion to dismiss
without prejudice on the grounds that Plaintifffailed to allege adequately that(1)Frazier was
acting within the scope of her employment when she allegedly solicited her relatives to attack
Plaintiff and her sister, as is required for Defendant to be liable under a theory ofrespondeat

superior(Dec. 19,2015, Mem.& Order("M&O")(Dkt. 16)at 3-6);(2)Defendant's store

managers and secxirity guards were acting within the scope oftheir employment when they
committed any allegedly negligent acts(id at 7-8);(3)Defendant knew or should have known
that a customer might be assaulted in the store(Id at 8-9); and (4)Defendant knew or should
have known ofFrazier's propensity to commit or solicit assault(id at 9-10). The court also

^ "Federal Rule of Civil Procedure 21 allows a court to drop a nondiverse party at any time to preserve diversity

jurisdiction, provided tiie nondiverse party is not 'indispensable'imder [Federal Rule of Civil Procedure] 19(b)."
CP Solutions PTE.Ltd. v. Gen. Elec. Co.. 553 F.Sd 156,159(2d Cir. 2009)(per curiam)(citations omitted).

^ The court notes that this memorandum largely addresses issues—^whether Defendant can be held liable under a

theory ofrespondeat superior for Frazier's actions and whether Plaintiff has made out a claim for negligent infliction
ofemotional distress—^that do not appear to be raised by Plaintiffs Amended Complaint. (Def. Mem. at 1-3, 5-6.)

concluded that the Complaint failed adequately to allege intentional or negligent infliction of
emotional distress. (Id at 11-13).

On January 11,2016,Plaintifffiled her Amended Complaint. (Am. Compl.(Dkt. 17).)

The Amended Complaint now only names as defendants Marshalls and three unidentified
Marshalls employees, and asserts three claims. First, Plaintiff claims that Defendant acted
negligently by failing to protect her (for example, by failing to employ a security guard on the
premises), despite knowing that Frazier posed a threat to her and her sister. (Id

18-24.)

Second,Plaintiff contends that Defendant is vicariously liable for the alleged negligence of its

employees, who failed to prevent the attack. (Id

26-36.) Third, Plaintiff asserts that

Defendant was negligent in hiring Frazier and allowing her to remain on the store premises after
Plaintiff and her sister reported that Frazier had threatened and harassed them. (Id KK 39-57.)

Following the completion of discovery. Defendant moved for summary judgment on all three of
Plaintiffs claims. (Def. Mot. for Summ. J.)
n.

LEGAJL STAJMDAJRD

A party is entitled to summaryjudgment if she "shows that there is no genuine dispute as
to any material fact and [she] is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a).
A genuine dispute of material fact exists only if"the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobbv. Inc., 477 U.S. 242,
248(1986). The party moving for summary judgment bears the burden ofshowing that no

genuine dispute of material fact exists. Celotex Corp. v. Catrett. 477 U.S. 317, 323(1986). On a
motion for summary judgment,the court must"constru[e] the evidence in the light most

favorable to the nonmoving party," Overton v. N.Y. State Div. of Militarv & Naval Affairs, 373
F.3d 83, 89(2d Cir. 2004),"resolv[ing] all ambiguities and draw[ing] all reasonable factual
inferences in favor ofthe party against whom summary judgment [is] sought," Johnson v. Perry,

859 F.3d 156,169(2d Cir. 2017). To defeat a motion for summary judgment,the nonmoving
party must, however, offer more than a "scintilla ofevidence," Anderson. 477 U.S. at 252, or

"some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.. 475 U.S. 574,586(1986), or rely on "the allegations in [its] pleading[,]...conclusory

statements, or... mere assertions that affidavits supporting the motion are not credible,"
Gottlieb V. Ctv. of Orange. 84 F.3d 511. 518(2d Cir. 1996).
m.

DISCUSSION

The court is not unsympathetic to Plaintiff's position: she was suddenly attacked in

Defendant's store, apparently at the behest of Defendant's employee. Plaintiff has not, however,

proffered evidence sufficient to demonstrating the existence of a genuine dispute of material fact
as to whether she should be able to recover from Defendant for injuries she suffered during the

attack. To the extent she argues that Defendant or its employees acted negligently in failing to

prevent the assault, her claims fail because she has not produced evidence suggesting that the
attack was reasonably foreseeable. Likewise,to the extent that she contends that Defendant was

negligent in hiring, supervising, or retaining Frazier, that claim also fails because she has not
shown that Defendant was aware that Frazier had any propensity for instigating violent assaults

on store patrons(or anyone else, for that matter). The court addresses these arguments in turn.
A.

Negligent Failure to Prevent a Third Party's Attack

Plaintiff contends that Defendant is liable under two theories for failing to prevent Holt

and Johnson firom attacking her. First, she argues that Defendant is directly liable for failing to

prevent the attack. (Am. Compl.fl 18-23; PI. Mem.in Opp'n to Mot.for Summ. J.("PI.
Mem.")(Dkt. 35)at 1-5.) Second, she asserts that Defendant is vicariously liable, under a theory
ofrespondent superior, for its employees' alleged negligence for failing to prevent the attack.

(Am. Compl.ft 26-36; PI. Mem.at 2-6.) Neither theory is availing, however, because Plaintiff

has not shown that the attack was reasonably foreseeable and thus that Defendant or its
employees had a duty to protect her from it.
1. Legal Standard

"Under New York law, the elements of a negligence claim are:(i) a duty owed to the

plaintiff by the defendant;(ii) breach ofthat duty; and (iii) injury substantially caused by that
breach." Lombard v. Booz-Allen & Hamilton. Inc.. 280 F.3d 209,215(2d Cir. 2002). With

respect to the first element,"landlords and permittees have a common-law duty to minimize
foreseeable dangers on their property, including the criminal acts ofthird parties." Maheshwari
V. City ofNew York, 810 N.E.2d 894, 897(N.Y. 2004). Public establishments are not, however,
"insurers of a visitor's safety." Id Instead, such establishments only "have a duty to protect

their patrons from reasonably foreseeable harm." (M&O at 8(emphasis added)(citing Hegartv
V. Tracy.4 N.Y.S.Sd 254,255(N.Y. App. Div. 2015)).) Thus, as the court previously explained,
"an owner has no duty to protect patrons from unforeseeable assaults." (Id.(citing Hegartv.4
N.Y.S.Sd at 255).) "However,ifthe situation was one that could have been anticipated or

prevented, a defendant may be held liable for attacks that occurred on its premises." (Id (citing
Jones V. Great Am. Grocery Store. 651 N.Y.S.2d 773,773(N.Y. App. Div. 1996); Banavan v.
F.W.WoolworthCo..622 N.Y.S.2d 24,25(N.Y. App. Div. 1995)).)

To raise a genuine issue of material fact as to whether a third party's criminal act was

"reasonably foreseeable," a plaintiff may present "[ejvidence of prior criminal acts sufficiently
similar to the instant act." Gray v. Denny's Corp.. 535 F. App'x 14, 15(2d Cir. 2013)(summary

order); Maria T. v. N.Y. Holding Co. Assocs.. 862 N.Y.S.2d 16,17-18(N.Y. App. Div. 2008);
Martinez v. Nat'l Amusements.Inc.. 855 N.Y.S.2d 82,83(N.Y. App. Div. 2008); Michelle K. v.
Stonehurstm Assocs.. 854 N.Y.S.2d 753,753-54(N.Y. App. Div. 2008). (See also, e.g.. M&O

at 8-9 (collecting cases).) To establish that a criminal act was reasonably foreseeable, a plaintiff

must proffer evidence of"the same or similar criminal activity at a location sufficiently
proximate to the subject location." Novikova v. Greenbriar Owners Corp.. 694 N.Y.S.2d 445,
448(N.Y. App. Div. 1999h cf. Johnson v. Citv ofNew York. 777 N.Y.S.2d 135,136-37(N.Y.

App. Div. 2004)(evidence of prior domestic dispute in building and general neighborhood crime
insufficient to render sexual assault reasonably foreseeable). The plaintiff need not, however,

show that exactly the same crime had taken place previously, or that a similar crime had taken
place in exactly the same location as the act on which the plaintiffs suit is based. See, e.g.,
Williams v. Utica Coll. of Svracuse Univ.,453 F.3d 112,117-18(2d Cir. 2006k Jacqueline S. bv
Ludovina S. v. Citv ofNew York,614 N.E.2d 723, 725-26(N.Y. 1993). Supposition that it was
conceivable that a crime could be committed is insufficient to show that the crime was

reasonably foreseeable. See Williams v. Citibank, N.A.,677 N.Y.S.2d 318,321 (N.Y. App. Div.
1998).

Under New York law,the question of whether a third party's criminal act was reasonably

foreseeable is a question of both law and fact. Because a landlord or permittee only has a duty to

protect persons on its property firom third parties' criminal acts ifthose acts are reasonably
foreseeable, see, e.g., Maheshwari, 810 N.E.2d at 897,a plaintiff must produce evidence ofprior
criminal acts in order to establish that defendant had a duty to protect him or her fi-om similar
acts, see Pink v. Rome Youth Hockev Ass'n,63 N.E.3d 1148,1150-51 (N.Y. 2016). Under New

York law,"[t]he existence and scope ofan alleged tortfeasor's duty is, in the first instance, a
legal question for determination by the courts." Sanchez v. State ofNew York,784 N.E.2d 675,
678(N.Y.2002). Only when the plaintiff has adduced evidence of prior criminal acts should the
question offoreseeability be submitted to the jury.

Palka v. Servicemaster Memt. Servs.

Corp.,634 N.E.2d 189,192(N.Y. 1994)("Unlike foreseeability and causation, which are issues

generally and more suitably entrusted to fact finder adjudication, the definition ofthe existence

and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for
Judges to make prior to submitting anything to fact-finding or jury consideration.");^Williams,
453 F.3d at 117(evidence ofseveral prior incidents was "enough to make the issue of whether

the attack... was foreseeable at least ajury question").^
2. Analvsis

Plaintiff has not produced evidence that the attack against her was reasonably

foreseeable. In particular, she has not shown that anyone was ever attacked in the Marshalls

location in question or the immediately surrounding area, or that any Marshalls employees had
ever solicited attacks on store patrons in the past. (Def. R. 56.1 Statement(Dkt. 36-15)
42-43; PI. R. 56.1 Counterstatement

23-26,

23-26,42-43.) Instead, Plaintiff has only shown that

numerous incidents of shoplifting have taken place at the store. (Def. R. 56.1 Statement

24,

42-43; PL R.56.1 Counterstatement KK 23-26,42-43.) Evidence of minor property crimes,
however,is insufficient as a matter oflaw to establish that it was foreseeable that store patrons

would be violently attacked by third parties, and thus that Defendant's duties to Plaintiff

extended to protecting her from such attacks. See, e.g.. Maheshwari. 810 N.E.2d at 897-98 (past
incidents of disorderly conduct, misdemeanor assault, criminal mischief, resisting arrest, and

possession of stolen property did not render a "brutal" and unprovoked assault foreseeable);
Michelle K.. 854 N.Y.S.2d at 754(past incidents,"including nonviolent offenses on the property

such as a 'peeping Tom,' trespassers, and other nonspecified incidents requiring police

' New York Court of Appeals has not yet provided clear guidance as to when the question of whether a third
The
party's criminal act is reasonably foreseeable is one oflaw versus one offact. See, e.g.. Pink,63 N.E.Sd at 1150-51.
This court need not discem a precise answer, as, in the absence ofanv evidence ofprior similar acts. Plaintiff has
neither shown that Defendant owed her a duty to protect her from third-party attacks nor created a triable issue about
whether the attack was foreseeable.

8

intervention, were not sufficiently similar to [the violent sexual assault at issue] to raise a triable
issue offact regarding its foreseeability").

Lacking evidence ofprior similar incidents, Plaintiff contends that ber assault was
reasonably foreseeable in light ofFrazier's conduct immediately preceding the assault. (Am.

Compl.111121-22, 27, 30-31, 35;PI. Mem.at 3.) One line ofNew York cases has held that a
plaintiff may establish foreseeability through evidence of"escalating hostilities that might...
have served to put[a defendant's] personnel on notice of a possible skirmish." O'Connor v.
SvracuseUniv.. 887 N.Y.S.2d 353, 355(N.Y. App. Div. 2009)(citing Ash v. Fern,744 N.Y.S.2d

559(N.Y. App. Div. 2002)). According to Plaintiff, Defendant's employees were aware that
Frazier was harassing her sister and her, and so should have known that there was some risk of

violence. (Am. Compl. 1|1[ 19-23.) Even assuming that Frazier's alleged belligerence preceding
the attack sufficed to apprise Defendant's employees that Frazier might attack Plaintiff and her
sister, however,the court cannot say that those employees should have anticipated that Frazier
would enlist her aunt and cousin, who would come to the store and suddenly carry out such an
attack. To the extent that Plaintiff maintains that Defendant is liable because its store employees

(none of whom were security guards), should have called police more quickly or personally
intervened to break up the fight(PI. Mem.at 2,4-5), Plaintiff has not established that those

employees owed her a special duty to call the police or to come to her rescue, absent evidence of
prior similar incidents.^ See Sugarman v. Equinox Holdings. Inc., 880 N.Y.S.2d 227(Table),
2008 WL 5264642, at *2, *7-9(N.Y. Sup. Ct. 2008)(declining to impose a "duty to intervene in
a physical altercation between two patrons lawfully on the premises" ofthe defendant's

® The court also notes that, although Plaintiff contends that Defendant is liable because "[n]o store employee
intervened to stop the assault"(PI. Mem. at 4), Defendant has produced uncontroverted evidence that Solomon
attempted to break up the fight. (Compare Def. R.56.1 Statement ^41 (citing Waldron Dep. 34:22-24), with PI.
R.56.1 Counterstatementif 41.)

gym),affd sub nom. Sugannan v. Equinox Holding. Inc.. 901 N.Y.S.2d 615(N.Y. App. Div.
2010).

Lastly, Plaintiff argues that Defendant should be held liable because its employees failed
to take certain actions in response to Frazier's conduct that might have mitigated the risk that
Plaintiff vvould be assaulted. First, she argues that, had Defendant followed its store policy for

dealing with disruptive customers, it would have moved her "to a discrete area ofthe sales floor,
away from other [c]ustomers," where, perhaps, it is less likely that Holt and Johnson would have
spotted and attacked her. (PI. Mem.at 3-4(citing Def. Employee Handbook excerpt(Dkt. 3631)).) Second, she argues that Defendant's employees should have taken her to speak with
district manager Tony Hvizdos and that, because Hvizdos was in the store's "domestics"

department at the time, she might not have been assaulted had she spoken with him rather than
waiting by the cash registers. (Id.(citing PI. Timeline ofIncident(Dkt. 36-32).) Neither

argument is persuasive. First, it is not clear that Defendant's employees' actions deviated in any

10

respect from the employee handbook.^ Even ifthey did,"the violation of an organization's
intemal rules is not negligence in and of itself, and where an internal policy exceeds the standard
of ordinary care, it cannot serve as a basis for imposing liability." Pink.63 N.E.Sd at 1151.

Most significantly, even assuming for the sake of argument that Defendant's employees did not
act with reasonable care by leaving Plaintiffto wait by the cash registers, that action could not

give rise to a negligence claim, because those employees had no duty to protect Plaintifffrom the
unforeseeable attack. Cf Coronel v. Chase Manhattan Bank.798 N.Y.S.2d 41,42(N.Y. App.

Div. 2005)(where it was unforeseeable that the plaintiff would be shot while using an ATM,
evidence that the ATM was poorly lit, in violation oflocal law, was insufficient to defeat the
defendant's motion for summary judgment).

Because Plaintiff has not produced evidence that her assault was reasonably foreseeable,
neither Defendant nor its employees had a duty to protect her from that assault. Consequently, it
is immaterial "whether the Defendant acted reasonably under the circumstances." (PI. Mem. at

^ The employee handbook provides in relevant part as follows:
Any Customer or Associate incident that could potentially disrupt store business
should be treated as follows. If a person seems to have difficulty speaking or
hearing, use a pen and paper to communicate.
Customers

•

Do not discuss the situation with the Customer on the sales floor. Do not

•

Attempt to convince the Customer to move to a discrete area of the sales
floor, away from other Customers,to discuss the situation.
If the situation cannot be resolved, direct the customer to your District
Manager or Assistant Vice President/Regional Vice President, if applicable.

argue.

•

Associates

•

Do not discuss the situation with an Associate on the sales floor. Do not

•

Attempt to convince the Associate to go into the office area to discuss the

•

problem.
If the situation cannot be resolved, contact your District Manager or a

argue.

member ofHuman Resources.

11

1.) Defendant cannot be directly or vicariously liable for its or its employees' failure to prevent
the assault, and is therefore entitled to summary judgment on Plaintiffs first and second claims.
B.

Negligent Hiring,Retention, and Supervision

Plaintiff next contends that Defendant was negligent in hiring, supervising, and retaining
Frazier. (Am. Compl.

38-57.) As the court noted in its M&O,a plaintiff may seek to impose

liability on a business for torts committed by its employees outside ofthe scope oftheir

employment under a theory of negligent hiring, negligent supervision, or negligent retention.
(See M&O at 9(citing Sheila C. v. Povich.781 N.Y.S.2d 342,350(N.Y. App. Div. 2004).) "A

claim for negligent supervision or retention arises when an employer places an employee in a

position to cause foreseeable harm, harm which the injured party most probably would have been
spared had the employer taken reasonable care in supervising or retaining the employee."
Bouchard v. New York Archdiocese. 719 F. Supp. 2d 255,261 (S.D.N.Y. 2010)(quoting Vione
V. Tewell. 820 N.Y.S.2d 682,687(N.Y. Sup. Ct. 2006)). To establish liability under a theory of
negligent hiring, supervision, or retention, a plaintiff must establish not only "the standard
elements of negligence," but also the following three elements:

(1) that the tort-feasor and the defendant were in an employeeemployer relationship;(2) that the employer knew or should have
known of the employee's propensity for the conduct which caused
the injury prior to the injury's occurrence; and (3)that the tort was
committed on the employer's premises or with the employer's
chattels.

Ehrens v. Lutheran Church. 385 F.3d 232,235(2d Cir. 2004)(citations, alterations, and internal
quotation marks omitted).

While there is no dispute that Defendant employed Frazier or that Plaintiff was attacked

on Defendant's premises. Plaintiff has not established the existence of a genuine dispute of
material fact as to whether Defendant knew or should have known of Frazier's propensity for

12

instigating or soliciting attacks on store patrons. Plaintiff has not presented any evidence that,
prior to the incident at issue, Defendant was aware that Frazier was inclined to fight with
customers or to summon her relatives to the store to attack her enemies. (Def. R. 56.1 Statement

15 (citing PI. Dep. II 130:23-131:16); id
10)35:8-37:6); id

23-27(citing Tr. ofIcilda Solomon Dep.(Dkt. 36-

42-44 (citing Tr. ofErin Waldron Dep.("Waldron Dep.")(Dkt. 36-11)

37:2-38:15).) Plaintiffs unsupported and conclusory allegation that Defendant"knew or should
have known of its employee's propensity for the conduct that caused the injury"(Am. Compl.

^ 55), is, by itself, insufficient to survive summary judgment.

Colon v. Coughlim 58 F.3d

865,872(2d Cir. 1995). While Plaintiff also alleges that^was aware of"one prior incident
involving Ms. Fraz[i]er,[which] was a half hour before the vicious attack she suffered," that
allegation has no bearing on what Defendant knew and when. (PI. R. 56.1 Counterstatement

II15.) In the absence of any evidence that Defendant was aware that its employee had a

propensity for confronting and instigating attacks on store patrons. Defendant cannot be held
liable under a theory of negligent hiring, supervision, or training, and is thus entitled to summary
judgment on Plaintiffs third claim.
IV.

CONCLUSION

For the reasons stated above. Defendant's motion for summary judgment(Dkt. 36)is

GRANTED. The Clerk of Court is respectfully DIRECTED to enterjudgment for Defendant
and to close this case.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
December

NICHOLAS G. GARAUFIi!

2017

United States District Judge

13