NYCHA Not Responsible for Exterminator's Attack on Tenant's Daughter

Tenant sued NYCHA and its former exterminator, claiming that the exterminator had sexually assaulted her developmentally disabled daughter. Tenant claimed that NYCHA was responsible for the exterminator's conduct since it had failed to properly screen and supervise its employee. The court granted NYCHA's request to dismiss the case without a trial. NYCHA wasn't responsible under 42 USC Section 1983, since a municipality can't be held liable on a "respondeat superior" basis for the wrongful act of its employee. NYCHA could be held responsible only if it directly subjected a person to a deprivation of rights or caused a person to be subjected to such deprivation. Even if the exterminator violated the tenant's daughter's constitutional rights, there was no showing of any custom, policy, or usage by NYCHA that caused the claimed injuries. Tenant argued that NYCHA was deliberately indifferent by failing to properly discipline and supervise the exterminator. But mere negligence wasn't enough to make NYCHA responsible under federal law. NYCHA also wasn't responsible under New York law that makes an employer vicariously liable for the harmful acts of its employee when the act was foreseeable and committed within the scope of employment. The exterminator clearly wasn't acting within the scope of his employment when he assaulted tenant's daughter, but was acting on wholly personal motives. There also was no proof that NYCHA had notice of any similar prior conduct by the exterminator.

Soba v. NYCHA: Index No. 11 Civ. 7430(NRB), 2013 WL 3455449 (SDNY; 7/9/13; Buchwald, DJ)