Figueroa v. New York City Housing Authority

232 A.D.2d 293, 648 N.Y.S.2d 444, 1996 N.Y. App. Div. LEXIS 10500

Opinion

—Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered January 9, 1996, which denied defendant Housing Authority’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

An issue of fact exists as to whether defendant’s police officer was acting within the scope of his employment when he allegedly assaulted plaintiff during a traffic dispute. Even if off-duty at the time, as defendant asserts, plaintiff asserts the officer’s actions, which allégedly included his identifying himself as a police officer, displaying his badge, telling plaintiff to hand over a gun he mistakenly believed plaintiff was carrying, searching and detaining plaintiff, summoning the New York City police as backups, and holding plaintiff at gunpoint until the backups arrived, could indicate that he was acting within the scope of his official duties. We note the absence of any testimony from the officer, who asserted his Fifth Amendment right at his deposition. Concur—Milonas, J. P., Wallach, Kupferman, Tom and Andrias, JJ.