Capak v. Street Execs Management

Background

The case concerned an October 27, 2017 altercation at NBC headquarters in Rockefeller Center. Richard J. Capak alleged that, while he was recording Tauheed Epps, also known as 2 Chainz, Rory Dorall Smith approached and attacked him, causing physical injuries and mental anguish. Smith was part of Epps’s security team.

Capak had previously sued Epps and Smith for assault and battery, negligence, and negligent hiring and retention. In that earlier lawsuit, the court granted Epps summary judgment after finding that Smith was not an employee of Epps or Street Execs Management. The court also found that, even if Smith could be considered Epps’s employee, the alleged assault was outside the scope of his employment. Capak did not appeal that judgment. The earlier lawsuit continued against Smith.

Capak later sued Street Execs, which the opinion describes as a management and marketing firm serving as Epps’s business manager. The complaint asserted the same general categories of claims. Street Execs moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally plausible claim.

Claims for Assault, Battery, and Negligence

The court dismissed Capak’s claims seeking to hold Street Execs vicariously liable for Smith’s assault and battery and negligence. Under New York law, vicarious liability generally requires an employer-employee relationship and conduct within the scope of employment. The court applied collateral estoppel, also called issue preclusion, because the earlier lawsuit had conclusively decided that Smith was not Street Execs’s employee acting within the scope of his employment. Capak had had a full and fair opportunity to litigate that issue, and the earlier finding was necessary to the judgment in favor of Epps.

The court stated that these claims also failed because Capak did not respond to Street Execs’s dismissal arguments, thereby abandoning them, and because the assault-and-battery claim was subject to a one-year limitation period. The court dismissed the vicarious-liability claims with prejudice.

Negligent Hiring and Retention

The court recognized that a company may, in some circumstances, be directly liable for negligently hiring, supervising, or retaining an independent contractor even when it is not vicariously liable for that contractor’s conduct. But New York law requires facts showing that the company knew or should have known of the contractor’s propensity for the conduct that caused the injury.

Capak’s complaint alleged only that Street Execs was negligent, reckless, and careless in hiring and retaining Smith. It did not allege facts showing that Street Execs knew or should have known that Smith had a propensity for violence. The court therefore dismissed this claim under Rule 12(b)(6). It also found that allowing Capak to amend would be futile because Capak acknowledged that he did not know what vetting process Street Execs used or what information it knew about Smith’s alleged dangerous propensities. The court dismissed the negligent hiring and retention claim with prejudice.

Punitive Damages and Disposition

Street Execs also argued that punitive damages are not a separate cause of action under New York law. Capak did not respond to that argument, so the court deemed the punitive-damages claim abandoned.

The court granted Street Execs’s motion to dismiss and dismissed the complaint with prejudice. It denied Capak’s request for oral argument, directed the Clerk to enter judgment for Street Execs, and closed the case. Judge Ronnie Abrams issued the memorandum opinion and order on June 29, 2021.