On or about July 6, 2009, the plaintiffs, Leonid and Tatyana Timoshenko, commenced this action alleging, inter alia, negligent hiring by defendants Airport Auto Group, Inc., Five Towns Mitsubishi and Lester Wu of non-party Dexter Bostic who shot and killed plaintiff's son, NYC Police Officer, Russel Timoshenko. The facts are as follows, on July 9, 2007, at approximately 2:30 a.m., Russel Timoshenko was on duty as a New York City police officer and patrolling the Crown Heights section of Brooklyn with his partner Officer Herman Yan. Upon having run the license plate of a BMW and learning that the plates were assigned to a different vehicle, the Officers pulled over the BMW at or near the intersection of Lefferts Avenue and Rogers Avenue in Brooklyn, New York. The vehicle was being driven by Lee Woods, with passengers Dexter Bostic and Robert Ellis.

As decedent, Officer Russel Timoshenko began to approach the BMW from the passenger side, passenger Dexter Bostic opened fire and shot Officer Timoshenko twice in the face. Officer Timoshenko was rushed to Kings County Hospital Center where he remained on life support until his death on July 14, 2007.

At the time of the accident, Dexter Bostic was employed by defendants Airport Auto Group Inc./Five Towns Mitsubishi [hereinafter "Airport Auto"] as a car salesperson and the BMW involved in the incident was owned by the defendant Airport Auto. Defendant Lester Wu is the president of Airport Auto.^[FN1] At present, the defendants Airport Auto/Five Towns and Lester [*2]Wu are moving for summary judgment contending that they did not negligently hire Dexter Bostic and cannot be held liable for the death of Officer Russel Timoshenko.

Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept., 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept., 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

II.Claims against Airport Auto/Five Towns Mitsubishi

Generally,

a defendant has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control. Certain relationships, however, including the relationship between an employer and employee, may give rise to a duty to exercise control. Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment (Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896 [2d Dept., 2009]).

Respondeat superior provides that "the employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. However, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business" (Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896 [2d Dept., 2009]; Jackson v. University Downtown Hospital, 69 AD3d 801, 801 [2d Dept., 2010]; R. v R., 37 AD3d 577, 578 [2d Dept., 2007]).

Here, defendants Airport Auto/Five Towns have established their prima facie entitlement to summary judgment by establishing that Dexter Bostic was not acting within the scope of his employment and was acting for personal motives unrelated to Airport Auto/Five Towns (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Jackson v. University Downtown Hospital, 69 AD3d 801, 801 [2d Dept., 2010]; R. v R., 37 AD3d 577, 578 [2d Dept., 2007]). Further, defendants have presented evidence that they were unaware of any criminal propensity that Dexter Bostic may have had in the past and did not give permission for use of the vehicle and did not permit employees to use the inventory vehicles during non-business hours.

In opposition, the plaintiffs have successfully raised triable issues of fact (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept., 1998]; Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896 [2d Dept., 2009]). Plaintiffs have presented evidence that keys to vehicles in [*3]the inventory were available for the use of salespersons and defendants had previously experienced employees using the vehicles during non-business hours, without authorization. Clearly, this raises questions of fact with respect to whether defendants acted reasonably in hiring Dexter Bostic without a criminal background check after knowing vehicles in their inventory were routinely used without permission during non-business hours. In addition, plaintiff presented evidence that Dexter Bostic has had multiple prior felony convictions, including two lengthy prison sentences for gun possession and robbery, which also raises questions as to the foreseeability of Mr. Bostic's action and precludes summary judgment for the Airport Auto/Five Towns defendants.

II.Claims against Lester Wu, Individually

Generally, " piercing the corporate veil' is [ ], allowed where "(1) the owners exercised complete domination of the corporation in respect to the transaction; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury" (Morris v. State Dep't of Taxation & Fin., 82 NY2d 135, 141 [1993]). In order to establish a fraud occurred the plaintiff must prove "(1) a misrepresentation or a material omission of fact which was false and known to be false by the defendant, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury" (Shao v. 39 College Point Corp., 309 AD2d 850, 851 (2d Dept., 2003]).

Here, the defendant Lester Wu, has established a prima facie entitlement to dismiss the complaint as against him in his individual capacity (Rosen v. Watermill Development Corp., 1 AD3d 424, 425 [2d Dept., 2003]). There has been no evidence presented by plaintiffs to raise a triable issue of fact with respect to holding Lester Wu personally liable. There is no evidence of any fraud by defendant Wu or that he had any involvement at all with hiring Dexter Bostic and as such this portion of the motion will be granted (id; Morris v. State Dep't of Taxation & Fin., 82 NY2d 135, 141 [1993]).

Accordingly, it is

ORDERED that the portion of the motion [003] which requests summary judgment for defendants Airport Auto Group, Inc. and Five Towns Mitsubishi is hereby denied, and it is further

ORDERED that the portion of the motion [003] that requests summary judgment for defendant Lester Wu is hereby granted, and it is further

ORDERED that the complaint is dismissed as against defendant Lester Wu ONLY and the caption should be amended to reflect as such, and it is further

ORDERED that any and all additional requests for relief are hereby without merit and are denied, and it is further

ORDERED that the Clerk enter judgment accordingly,

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: August 5, 2011ENTER,

______________________________

Hon. Judith N. McMahon [*4]

Justice of the Supreme Court