Austin v. State , 422 N.Y.S.2d 512 ( 1979 )

Appeal from so much of an order of the Court of Claims, entered June 12, 1978, as denied the State’s motion to dismiss subparagraph 2h of the amended claim. The Court of Claims granted most branches of the State’s motion to dismiss claimant’s amended claim, but ruled that the pleading did contain a viable cause of action for the intentional infliction of emotional harm. On this appeal by the State for additional relief, there is no contention that claimant has failed to allege any of the requisite elements of such a cause of action. Instead, it is maintained that dismissal is warranted because claimant has made the inapplicability of respondeat superior plain in her claim or has abandoned reliance on that theory. We disagree. It is the nature of the transaction, not the name given to it, which must control a dismissal motion (cf. Foley v D’Agostino, 21 AD2d 60) and, since it appears that the acts here complained of were undertaken by one alleged to be an employee of a State institution, the arguments of claimant’s attorney indicating various theories are of no significance. Moreover, whether an employee’s activities will generate liability on the part of his employer ordinarily depends on factual considerations (cf. Makoske v Lombardy, 47 AD2d 284, affd 39 NY2d 773). Thus, while the issue might be resolved by way of summary judgment in an appropriate case, it is not reached in the determination of this motion to dismiss for failure to state a cause of action. Order affirmed, without costs. Sweeney, Kane, Main and Mikoll, JJ., concur.