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Tompkins and Cahill Obtain Summary Judgment in Assault and Battery Case

March 16, 2020

George Tompkins (Partner-New York) and John Cahill (Associate-White Plains) were successful in obtaining summary judgment for our client in an assault and battery case in the Civil Court of the City of New York. Plaintiff alleged that she intended to pick up food for the homeless from one of our client’s retail outlets in Manhattan at closing time. Surveillance video showed that the plaintiff had been in the store two hours prior to events giving rise to the lawsuit ostensibly to make arrangements to return for any leftover food. When plaintiff returned to the store, it was closed, although there were employees inside performing closing duties. An employee from another store, not working at the time, but wearing a store uniform, exited the store and plaintiff confronted her asking about the leftover food. The two got into a verbal dispute that led to a physical altercation on the public sidewalk outside of the store. One of the store employees intervened by pulling the plaintiff away from the other individual.  Plaintiff sued our client seeking to impose liability pursuant to the doctrine of respondeat superior. Following plaintiff’s deposition, we moved for summary judgment arguing that the actions of the off-duty employee could not be considered to be within the scope of her employment and that the altercation was personal in nature and not in furtherance of any legitimate business purpose of the employer.  The same arguments were made with respect to the on-duty employee who broke up the fight. At oral argument of the motion, after our presentation, plaintiff’s counsel conceded that factually and legally we were entitled to judgment dismissing the Complaint. An appropriate order was thereafter issued dismissing the Complaint.

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