Smalls v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Smalls v. New York City Transit Authority

264 A.D.2d 771, 695 N.Y.S.2d 121, 1999 N.Y. App. Div. LEXIS 9155

Appellate Division of the Supreme Court of the State of New York·Decided September 20, 1999·Published·Cited by 2 cases

Opinion

In an action, inter alia, to recover damages for assault, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated June 26, 1998, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

[772]*772Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant New York City Transit Authority (hereinafter the NYCTA) failed to establish its entitlement to judgment as a matter of law regarding whether its employee, a bus driver, was acting beyond the scope of his employment during his altercation with a passenger (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Riviello v Waldron, 47 NY2d 297, 302). The circumstances surrounding the altercation are in sharp dispute such that summary judgment is inappropriate (see, Zuckerman v City of New York, supra; Jaccarino v Supermarkets Gen. Corp., 252 AD2d 572).

Furthermore, the NYCTA is not entitled to judgment as a matter of law on the evidence presented with regard to the causes of action alleging negligent hiring and retention of its employee (see, Detone v Bullit Courier Serv., 140 AD2d 278). O’Brien, J. P., Sullivan, H. Miller and Smith, JJ., concur.

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In an action, inter alia, to recover damages for assault, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated June 26, 1998, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

[772]*772Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant New York City Transit Authority (hereinafter the NYCTA) failed to establish its entitlement to judgment as a matter of law regarding whether its employee, a bus driver, was acting beyond the scope of his employment during his altercation with a passenger (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Riviello v Waldron, 47 NY2d 297, 302). The circumstances surrounding the altercation are in sharp dispute such that summary judgment is inappropriate (see, Zuckerman v City of New York, supra; Jaccarino v Supermarkets Gen. Corp., 252 AD2d 572).

Furthermore, the NYCTA is not entitled to judgment as a matter of law on the evidence presented with regard to the causes of action alleging negligent hiring and retention of its employee (see, Detone v Bullit Courier Serv., 140 AD2d 278). O’Brien, J. P., Sullivan, H. Miller and Smith, JJ., concur.

Smalls v. New York City Transit Authority, 264 A.D.2d 771, 695 N.Y.S.2d 121, 1999 N.Y. App. Div. LEXIS 9155 (N.Y. Ct. App. 1999).

Pincite

264 A.D.2d 771 (Smalls v. New York City Transit Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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