         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

1234
CA 12-00641
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


JOSEPH V. MANTIONE, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CRAZY JAKES, INC., DOING BUSINESS AS CRAZY
JAKE’S RESTAURANT, CRAZY JAKE’S RESTAURANT,
WEBSTER PROPERTIES OF WNY, INC., GREG T. DOEL,
TIMMY L. BROCIUS, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (KATHERINE M. LIEBNER
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Ralph A.
Boniello, III, J.), entered February 16, 2012 in a personal injury
action. The order denied the motion of defendants-appellants to dismiss
the complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained as a result of the alleged misconduct of
“bouncers” at defendant Crazy Jake’s Restaurant, a restaurant and bar
operated by defendant Crazy Jakes, Inc., doing business as Crazy Jake’s
Restaurant (collectively, Crazy Jake’s). Before answering the
complaint, defendants Webster Properties of WNY, Inc. (Webster), Greg T.
Doel and Timmy L. Brocius, as well as Crazy Jake’s (collectively,
defendants), moved to dismiss the complaint in its entirety against Doel
and Brocius; the second cause of action, for intentional tort, against
Crazy Jake’s and Webster; the third cause of action, for negligent
hiring and retention, against Crazy Jake’s; and the fourth cause of
action, for punitive damages, against Crazy Jake’s and Webster (see CPLR
3211 [a] [7]). In support thereof, defendants submitted, inter alia,
affidavits from Doel and Brocius, wherein they averred that they were
not present at the time of the incident. Supreme Court properly denied
defendants’ motion.

     In determining a CPLR 3211 motion, “a court may freely consider
affidavits submitted by the plaintiff to remedy any defects in the
complaint . . . and ‘the criterion is whether the proponent of the
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                                                         CA 12-00641

pleading has a cause of action, not whether he has stated one’ ” (Leon v
Martinez, 84 NY2d 83, 88; see Gibraltar Steel Corp. v Gibraltar Metal
Production, 19 AD3d 1141, 1142). The court may also consider affidavits
and other evidentiary material to “establish conclusively that plaintiff
has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636;
see Gibraltar Steel Corp., 19 AD3d at 1142). “Any facts in the
complaint and submissions in opposition to the motion to dismiss are
accepted as true, [however,] and the benefit of every possible favorable
inference is afforded to the plaintiff” (Gibraltar Steel Corp., 19 AD3d
at 1142).

     Defendants contend that the court erred in denying that part of
their motion to dismiss the complaint against Doel and Brocius because
the evidence conclusively established that they were not present at the
time of the incident and thus were not participants in the wrongful
conduct. We reject that contention. In opposition to the motion,
plaintiff submitted an affidavit in which he stated that Doel and
Brocius were present at the time of the incident. Thus, accepting that
fact as true, as we must on this motion to dismiss, we conclude that the
evidence does not conclusively establish that Doel and Brocius were not
present at the time of the incident and that they therefore were not
participants in the wrongful conduct (see generally Rovello, 40 NY2d at
636; Clark v Pine Hill Homes, Inc., 112 AD2d 755, 755). In light of
that determination, we need not address at this juncture defendants’
contention that Doel and Brocius are entitled to dismissal of the
complaint against them on the ground that they cannot be held liable for
the torts of others.

     Defendants also contend that the court erred in denying that part
of their motion seeking dismissal of the cause of action for negligent
hiring and retention against Crazy Jake’s because the complaint does not
allege that Crazy Jake’s had reason to know that the bouncers employed
by it had a propensity for the conduct that caused the injury. We
reject that contention. There is no requirement that a cause of action
for negligent hiring and supervision be pleaded with specificity (see
Porcelli v Key Food Stores Co-Op., Inc., 44 AD3d 1020, 1021). Moreover,
we note that plaintiff submitted an affidavit wherein he averred that,
prior to the incident, complaints had been made regarding the use of
force by Crazy Jake’s bouncers.

     We have considered defendants’ remaining contentions and conclude
that they are without merit.


                                                Frances E. Cafarell




Entered:   December 28, 2012
                                                Clerk of the Court
