DeJesus v. New York City Transit Authority

210 A.D.2d 27, 618 N.Y.S.2d 806, 1994 N.Y. App. Div. LEXIS 11829

Opinion

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered November 3, 1993, which denied defendant New York City Transit Authority’s motion for summary judgment, unanimously affirmed, without costs.

Issues of fact exist precluding summary judgment, including, on the issue of negligence, whether the conduct of the off-duty Transit Authority police officers amounted to a request that plaintiff assist them in apprehending the driver of the vehicle that allegedly rammed plaintiff’s vehicle, and, if so, whether the officers encouraged or acquiesced in plaintiff’s confronting the driver; and, on the issue of defendant Transit Authority’s liability on the theory of respondeat superior (see, Frazier v State of New York, 64 NY2d 802), whether the off-duty officers, one of whom was a passenger in plaintiff’s vehicle and displayed his shield and shouted "police, stop” to the driver of the offending vehicle, and the other of whom was in his own car and joined in pursuing the driver of the offending vehicle, were acting within the scope of their employment as Transit Authority police officers in the apprehension of a miscreant driver or criminal suspect. Concur—Ellerin, J. P., Wallach, Rubin and Williams, JJ.