Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 05267 (4th Dept. 2009)
I feel as though Mr. Walden Bailey was unhappy with the gecko and went after him with all guns blazing. I just read a story about a guy who died after eating a gecko – apparently salmonella poisoning. Luckily, Mr. Walden did not suffer the same fate and still has his breach of contract action against the gecko
” We agree with defendant, however, that plaintiff failed to allege facts constituting negligent hiring, supervision, or retention sufficient to survive defendant’s motion to dismiss. “An employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” (Lamb v Stephen M. Baker, O.D., P.C., 152 AD3d 1230, 1231 [4th Dept 2017] [internal quotation marks omitted]). Here, plaintiff’s cause of action for negligent hiring, supervision or retention is based on the factual allegations that defendant’s employees denied or delayed the payment of claims to plaintiff and sent repetitive verification demands, and that defendant was aware of what its employees were doing and continued to employ them. Plaintiff, however, [*2]failed to allege that those acts were committed outside the scope of the employees’ employment. Plaintiff also failed to allege how the employees’ alleged acts of denying claims and sending verification demands constituted acts of negligence. Thus, we conclude that the court erred in denying that part of defendant’s motion seeking to dismiss the 13th cause of action, and we therefore modify the order accordingly. “
My only misgiving here is absent discovery, how can a plaintiff really make an allegation of negligent hiring? Perhaps, the cause of action should have survived pending discovery? The Plaintiff has no way of knowing or finding a way to know why all of these claims were denied or verified. I would compare this to the situation where the EIP or the provider no-shows. Here, the provider attorney has access through subpoena power of the EIP and personal knowledge of what his or her client did or did not do.
