The plaintiff wa injured when the driver-defendant struck her with his livery cab. The corporate defendant's motion to dismiss the negligentl entrustment and negligent hiring claims was denied. The Appellate Division reversed.
A motor vehicle's owner may be liable for negligent entrustment if it was negligent in entrusting it to a person it knew, or in the exercise of ordinary care should have known, was not competent to operate it. Here, the plaintiff alleged that the driver-defendant owned the car, and she did not allege, even in a conclusory fashion, that he was not competent to drive, or that the corporate defendant knew or should have known of any incompetence. The plaintiff's bare pleading of the corporate defendant's control and the failure to allege its knowledge of any incompetence require dismissal.
The claim alleging negligent hiring, training, and retention must be dismissed because the complaint fails to allege that the driver-defendant had a propensity to drive negligently, and that the corporate defendant, when it retained him as a driver, knew, or should have known, of any such propensity.
While the plaintiff argues that dismissal is premature, in her opposition to the motion to dismiss she did not make any additional submissions to cure the pleading deficiencies or to establish that additional discovery is necessary. The corporate defendant responded to her outstanding discovery demands concerning the factual bases for her negligence claims while the motion was pending, and the plaintiff did not object to the adequacy of those responses.
Kornfeld v. Zheng, NY Slip Op 03732 (1st Dep't July 2, 2020)
Here is the decision.
