Wimmer v. Pratt Institute

Order, Supreme Court, New York County, entered August 24, 1977, which granted defendant John C. Mandel Security Bureau, Inc.’s motion for summary judgment dismissing the complaint on the ground that plaintiffs complaint is time-barred and order of said court, entered November 25, 1977, which granted defendant Pratt Institute’s motion for summary judgment dismissing the complaint on the ground that plaintiffs complaint is time-barred, unanimously reversed, on the law, without costs and disbursements, and the motions denied. In this action plaintiff seeks to recover for damages allegedly resulting from the negligence of defendants Pratt Institute and John C. Mandel Security Bureau, Inc., in the hiring and retaining in their employ Frederick Percell who had alleged known vicious tendencies and assaulted and injured plaintiff on October 28, 1973. Viewing plaintiffs action as one for an assault and battery governed by the one-year Statute of Limitations, Special Term dismissed the complaint as the action commenced on or about November 5, 1976. While it is true that the plaintiffs injury resulted from the assault committed by Percell, the plaintiff is not thereby relegated only to a cause of action for assault and battery. "A single act or default causing a single injury may constitute a breach of different duties and may give rise to causes of action based upon different grounds of liability and subject to different statutory periods of limitations (Schram v. Cotton, 281 N. Y. 499; House v. Carr, 135 N. Y. 453, 458)” (King v King, 13 AD2d 437, 440). Plaintiffs action sounds in negligence against these defendants for the hiring of one who they allegedly knew had vicious tendencies (see Hall v Smathers, 240 NY 486; Lopez v Burns Int. Protective Agency, 48 AD2d 645). It is the alleged negligent hiring which is the gravamen of the complaint and this is governed by the three-year Statute of Limitations (CPLR 214). Concur—Lupiano, J. P., Birns, Lane, Markewich and Sandler, JJ.