Gordon Rees Scully Mansukhani's Don Derrico, Managing Partner of the Westchester and Buffalo offices, successfully obtained dismissal at the pleading stage of a wrongful death action against an out of state university.
The plaintiff commenced suit individually and on behalf of the estate of her son who was killed as the result of a physical altercation which involved an assistant basketball coach at a well known university. The assistant coach was visiting family in New York when the incident occurred. During the course of his visit, he attended a birthday party for a university recruit. The plaintiff argued that the coach was there on behalf of the university in a recruiting capacity. The incident received extensive press coverage and ultimately resulted in the conviction of the coach.
The coach and the decedent were involved in a road rage incident which resulted in a physical altercation and ultimately the death of the decedent. After receiving the assignment, Derrico made the recommendation to the university and their carrier, that they move to dismiss the complaint rather than serve an answer. The client agreed with Derrico’s suggestion that the motion be premised upon lack of personal jurisdiction as the university is not located in New York and the argument that the coach was not in New York on university business when the incident occurred and, even assuming arguendo that the coach was, the coach's alleged actions were not within the scope of his employment and/or foreseeable.
The court agreed with Derrico’s arguments and dismissed the complaint.