Bistreich v. City of New York

Bistreich v City of New York (2021 NY Slip Op 01118)

Bistreich v City of New York

2021 NY Slip Op 01118

Decided on February 18, 2021

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 and Entered: February 18, 2021
Before: Renwick, J.P., Kern, Singh, Shulman, JJ.

Index No. 160194/16 Appeal No. 13160 Case No. 2020-02242

[*1]Michael J. Bistreich, Plaintiff-Respondent,

v

The City of New York et al., Defendants-Appellants.

James E. Johnson, Corporation Counsel, New York (Scott Shorr of counsel), for appellants.

Schwartz Perry & Heller, LLP, New York (Brian Heller of counsel), for respondent.

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered September 16, 2019, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the aiding and abetting claim asserted against defendant Gentile individually, unanimously reversed, on the law, without costs, and the motion granted.

The aiding and abetting claim must be dismissed because there is no evidence of a "community of purpose" between Gentile and plaintiff's coworkers (see Schindler v Plaza Constr. LLC, 154 AD3d 495, 496 [1st Dept 2017] [internal quotation marks omitted]). There is no indication that Gentile was aware of any of the coworkers' actions, and an aiding and abetting claim cannot be based on an individual's own conduct (Hardwick v Auriemma, 116 AD3d 465, 468 [1st Dept 2014], lv denied 23 NY3d 908 [2014]). To the extent Tomka v Seiler Corp. (66 F3d 1295, 1317 [2d Cir 1995]) and its progeny hold otherwise, we decline to follow them.

We decline to make any determination of any claims of individual liability against Gentile that have not yet been raised in the complaint.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 18, 2021