Seymour v. Gateway Productions, Inc.

295 A.D.2d 278, 744 N.Y.S.2d 398, 2002 N.Y. App. Div. LEXIS 6820

Opinion

—Order, Supreme Court, New York County (Marcy Friedman, J.), entered February 6, 2002, which granted plaintiffs motion to reargue an order of the same court and Justice, entered May 3, 2001, granting the motion of defendants City of New York and the Department of Correction of the City of New York for summary judgment dismissing the complaint as against them, and, upon reargument, adhered to its prior order, unanimously affirmed, without costs.

Plaintiffs testimony at a hearing, held pursuant to General Municipal Law § 50-h, established that defendant, an off-duty correction officer, was acting purely out of personal motives when he punched plaintiff in the face without provocation while inside a café, and then followed when plaintiff was taken outside by a bouncer. Once outside, the officer repeatedly pushed plaintiff, briefly displayed his shield, and told plaintiff he was under arrest, at which point another man, who had also been involved in the altercation inside the café, stabbed plaintiff from behind. The court properly found that since all of the off-duty officer’s actions were brought on by a matter wholly personal in nature, the source of which was not job-related, he was not acting within the scope of his employment (see, Cardona v Cruz, 271 AD2d 221, 222; Stavitz v City of New York, 98 AD2d 529, 533).

There was no factual basis for plaintiffs negligent hiring claim since the officer was not only acting outside the scope of his employment, he was not under the supervision or control of the City at the time (see, Cardona, supra; Lemp v Lewis, 226 AD2d 907, 908). Concur—Williams, P.J., Nardelli, Saxe, Sullivan and Friedman, JJ.