Grafov v. Chelsea Bicycles Corp. , 19 N.Y.S.3d 895 ( 2015 )

Grafov v Chelsea Bicycles Corp. (2015 NY Slip Op 09179)

Grafov v Chelsea Bicycles Corp.

2015 NY Slip Op 09179

Decided on December 10, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 10, 2015
Mazzarelli, J.P., Richter, Manzanet-Daniels, Kapnick, JJ.

110620/08

[*1]16377 Alex Grafov, Plaintiff-Appellant,

v

Chelsea Bicycles Corporation, Defendant-Respondent, "John Doe" Manager, Defendant.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered April 14, 2014, which, upon plaintiff's motion to renew and reargue, denied renewal, granted reargument, and, upon reargument, adhered to the original determination granting the motion of defendant Chelsea Bicycles Corporation for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion to renew was properly denied since plaintiff pointed to no newly discovered facts that would change the court's prior determination (see CPLR 2221[e][2]). In addition, upon granting reargument, the court appropriately adhered to the terms of its initial order, as plaintiff presented no basis to conclude that the court overlooked or misapprehended any applicable law or facts (see Pezhman v Chanel, Inc., 126 AD3d 497 [1st Dept 2015]; CPLR 2221[d][2]). Indeed, there was no basis to impose liability on defendant for the actions of its employee in allegedly assaulting plaintiff. Defendant demonstrated that it had no notice that its employee had a propensity for violent behavior, and the employee's alleged assault upon plaintiff was clearly not within the scope of the employee's duties (see Vicuna v Empire Today, LLC, 128 AD3d 578 [1st Dept 2015]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 10, 2015

CLERK