Flowers v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Flowers v. New York City Transit Authority

267 A.D.2d 132, 700 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 13254

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1999

StatusPublished

Cited by5 cases

This text of 267 A.D.2d 132 (Flowers v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flowers v. New York City Transit Authority, 267 A.D.2d 132, 700 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 13254 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 11, 1998, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issue of fact is raised as to whether defendant’s employee, a token booth clerk, was acting within the scope of his employment when he allegedly assaulted plaintiff in an effort to make him stop panhandling in front of the booth. The evidence clearly shows that the clerk was instructed and trained to deal with problems of this kind by activating an emergency communications system connecting the token booth with personnel in station command, from whom the clerk was to take instructions. The alleged assault was such a wide departure from this normal method of performance as not to be reasonably anticipated by defendant (cf., Riviello v Waldron, 47 NY2d 297, 303-304). Accordingly, defendant cannot be held vicariously liable for its employee’s tort under the doctrine of respondeat superior, and the complaint was properly dismissed. Concur— Sullivan, J. P., Nardelli, Mazzarelli, Wallach and Friedman, JJ.

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—Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 11, 1998, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No issue of fact is raised as to whether defendant’s employee, a token booth clerk, was acting within the scope of his employment when he allegedly assaulted plaintiff in an effort to make him stop panhandling in front of the booth. The evidence clearly shows that the clerk was instructed and trained to deal with problems of this kind by activating an emergency communications system connecting the token booth with personnel in station command, from whom the clerk was to take instructions. The alleged assault was such a wide departure from this normal method of performance as not to be reasonably anticipated by defendant (cf., Riviello v Waldron, 47 NY2d 297, 303-304). Accordingly, defendant cannot be held vicariously liable for its employee’s tort under the doctrine of respondeat superior, and the complaint was properly dismissed. Concur— Sullivan, J. P., Nardelli, Mazzarelli, Wallach and Friedman, JJ.

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Bluebook (online)

267 A.D.2d 132, 700 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 13254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-new-york-city-transit-authority-nyappdiv-1999.

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