| Perez v City of New York |
| 2007 NY Slip Op 06764 [43 AD3d 712] |
| September 18, 2007 |
| Appellate Division, First Department |
| Severino Perez, Respondent, v City of New York et al.,Appellants, and Carol Healy, Respondent. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for Severino Perez,respondent. Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), forCarol Healy, respondent.
Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December16, 2005, after a jury trial, awarding plaintiff damages in the principal sum of $1.1 million, andjudgment, same court and Justice, entered December 6, 2005, which, after a hearing before AnneE. Targum, J., awarded defendant Healy indemnification against defendant City for legal fees andexpenses in the amount of $31,000, unanimously reversed, on the law, without costs, and thecomplaint and Healy's cross claim dismissed. The Clerk is directed to enter judgmentaccordingly.
Plaintiff was arrested and prosecuted at the instigation of defendant Healy, then a City policeofficer, in an incident culminating a long-brewing personal dispute between them. The jurydetermined that Healy was acting within the scope of her employment. We find no reasonableinterpretation of the facts to support that conclusion (see e.g. Caits v Keyser, 202 AD2d180 [1994]). As a matter of law, an officer is not acting within the scope of employment whencausing an arrest of an individual while "engaging in a personal dispute, without any genuineofficial purpose," and simply "motivated by personal pique" (Campos v City of New York, 32 AD3d 287, 291-292 [2006], lvdenied 8 NY3d 816 [2007]). This arrest was clearly "brought on by a matter wholly personalin nature, the source of which was not job-related" (see Seymour v Gateway Prods., 295AD2d 278, 278 [2002]). The trial court should have granted the City's motion to dismiss on thisground.
This finding necessitates rejection of Healy's cross claim for legal fees and expenses as well.Pursuant to General Municipal Law § 50-k, she requested the Corporation Counsel to[*2]provide her with a defense. The Corporation Counsel has thestatutory authority to determine whether or not the subject "act or omission . . .occurred while the employee was acting within the scope of [her] public employment and in thedischarge of [her] duties and was not in violation of any rule or regulation of [her] agency at thetime the alleged act or omission occurred" (§ 50-k [2]). Here, the negative determinationby the Corporation Counsel should not have been set aside by Supreme Court, since it cannot besaid that it lacked a factual basis, or was, in that sense, arbitrary and capricious (see Wong vCity of New York, 174 AD2d 486 [1991]). Concur—Andrias, J.P., Buckley,Catterson, Malone and Kavanagh, JJ.