Sargent v. City of New York

Appellate Division of the Supreme Court of New York

Sargent v. City of New York

128 A.D.2d 693, 513 N.Y.S.2d 194, 1987 N.Y. App. Div. LEXIS 44380

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

DecidedMarch 16, 1987

StatusPublished

Cited by4 cases

This text of 128 A.D.2d 693 (Sargent v. City of New York) 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.

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Sargent v. City of New York, 128 A.D.2d 693, 513 N.Y.S.2d 194, 1987 N.Y. App. Div. LEXIS 44380 (N.Y. Ct. App. 1987).

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Opinion

In an action to recover damages for personal injuries sustained as [694]*694the result of an alleged assault, the defendant Jerome Martinez appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated January 29, 1986, which granted the plaintiffs motion for leave to reargue the appellant’s motion which had sought, inter alia, to dismiss the action as against him, and upon reargument, denied the appellant’s motion and vacated a prior order of the same court, dated May 2, 1982, which dismissed the action as against the appellant.

Ordered that the order is affirmed, with costs.

The affidavits submitted at Special Term raise a question of fact as to whether the appellant, who allegedly assaulted the plaintiff, was at that time acting outside the scope of his employment as a New York City police officer. Accordingly, whether the appellant is united in interest with his employer, the defendant City of New York (which was timely served with process), for Statute of Limitations purposes (CPLR 203 [b]) cannot be determined at this juncture (cf., Matter of Parker v Port Auth., 113 AD2d 763; see also, Connell v Hayden, 83 AD2d 30, 48). Therefore, vacatur of the order which had dismissed the complaint against the appellant was warranted.

The appellant’s further contention that leave to reargue was improperly granted is without merit (see, Rodney v New York Pyrotechnic Prods. Co., 112 AD2d 410). Niehoff, J. P., Lawrence, Rubin and Sullivan, JJ., concur.

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In an action to recover damages for personal injuries sustained as [694]*694the result of an alleged assault, the defendant Jerome Martinez appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated January 29, 1986, which granted the plaintiffs motion for leave to reargue the appellant’s motion which had sought, inter alia, to dismiss the action as against him, and upon reargument, denied the appellant’s motion and vacated a prior order of the same court, dated May 2, 1982, which dismissed the action as against the appellant.

Ordered that the order is affirmed, with costs.

The affidavits submitted at Special Term raise a question of fact as to whether the appellant, who allegedly assaulted the plaintiff, was at that time acting outside the scope of his employment as a New York City police officer. Accordingly, whether the appellant is united in interest with his employer, the defendant City of New York (which was timely served with process), for Statute of Limitations purposes (CPLR 203 [b]) cannot be determined at this juncture (cf., Matter of Parker v Port Auth., 113 AD2d 763; see also, Connell v Hayden, 83 AD2d 30, 48). Therefore, vacatur of the order which had dismissed the complaint against the appellant was warranted.

The appellant’s further contention that leave to reargue was improperly granted is without merit (see, Rodney v New York Pyrotechnic Prods. Co., 112 AD2d 410). Niehoff, J. P., Lawrence, Rubin and Sullivan, JJ., concur.

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128 A.D.2d 693, 513 N.Y.S.2d 194, 1987 N.Y. App. Div. LEXIS 44380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sargent-v-city-of-new-york-nyappdiv-1987.

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