Wade Clark Mulcahy LLP

The Second Department recently issued an interesting opinion on the application of the agency theory in a unique livery cab case. In Bailey v. City of New York, the plaintiff, who is blind, was injured when he tripped and fell after a cab let him out on the sidewalk. Plaintiff was using an accessible ride program arranged through the New York City Transit Authority (“NYCTA”) and a smartphone app called Curb Mobility. The driver was an employee and/or agent of Curb and the NYCTA. Plaintiff sued the driver, NYCTA and Curb alleging that the driver breached his duty by not ensuring the plaintiff was let out of the cab in a safe place. Curb and NYCTA were sued under a theory of agency for the negligent hiring, training, and retention of the driver. The trial court denied NYCTA and Curb’s motion to dismiss pursuant to CPLR 3211(a)(7).

On appeal, the Second Department examined whether NYCTA and Curb “should have known of the employee's propensity for the conduct which caused the injury." The record did not indicate whether there was any training to employees on how to assist blind customers, nor did the complaint allege that Curb or NYCTA knew or should have known of the driver's propensity for the conduct which caused the injury or contain any factual allegations to support such an inference. The Court found that while there was an agency relationship between NYCTA and Curb and the driver, bare legal conclusions without any factual allegations was insufficient to sustain the negligent hiring claims against NYCTA and Curb based on a theory of respondeat superior, so the Court should granted have granted that aspect of the motion.

The Bailey decision reiterates the requirement in New York that plaintiffs must provide a certain factual basis for legal allegations in a Complaint. Defense counsel should closely examine the initial pleading and consider moving to dismiss where appropriate.