| Neiger v City of New York |
| 2010 NY Slip Op 02934 [72 AD3d 663] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Samuel Neiger, Respondent, v City of New York et al.,Defendants, and New York City Transit Authority et al., Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants New York CityTransit Authority and Metropolitan Transportation Authority appeal from an order of theSupreme Court, Kings County (Hinds-Radix, J.), dated October 10, 2007, which denied theirmotion, in effect, to vacate so much of a "pre-calendar order" of the same court dated December14, 2006, as directed the defendant New York City Transit Authority to produce any incidentreports, driving records, and/or disciplinary reports regarding a named individual for in camerainspection.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsNew York City Transit Authority and Metropolitan Transportation Authority, in effect, to vacateso much of the precalendar order dated December 14, 2006, as directed the defendant New YorkCity Transit Authority to produce any incident reports, driving records, and/or disciplinaryreports regarding a named individual for in camera inspection is granted.
The Supreme Court erred in denying the appellants' motion, in effect, to vacate so much ofthe precalendar order dated December 14, 2006, as directed the defendant New York CityTransit Authority (hereinafter the NYCTA) to produce for in camera inspection any incidentreports, driving records, and/or disciplinary reports of a named individual who was operating theNYCTA bus in which the plaintiff's decedent allegedly was injured. Generally, where anemployee is acting within the scope of his or her employment, the employer is liable for theemployee's negligence under a theory of respondeat superior and the plaintiff may not proceedwith a cause of action to recover damages for negligent hiring and retention (see Ashley v City of New York, 7AD3d 742, 743 [2004]; Karoon v New York City Tr. Auth., 241 AD2d 323, 324[1997]; Eifert v Bush, 27 AD2d 950, 951 [1967], affd 22 NY2d 681 [1968]).Since the appellants conceded that the bus driver was acting within the scope of his employmentwhen the accident occurred, the personnel records of the bus driver were not discoverable(see Gerardi v Nassau/Suffolk Airport Connection, 288 AD2d 181 [2001]; HalinaYin Fong Chow v Long Is. R.R., 264 AD2d 759, 760 [1999]; Stevens v MetropolitanSuburban Bus Auth., 117 AD2d 733 [1986]). Furthermore, the plaintiffs failed to show anyother basis to justify the granting of their request for the personnel records (see Reynolds vVin Dac Pham, 212 AD2d 991 [1995]). Skelos, J.P., Dillon, Angiolillo, Eng and Sgroi, JJ.,concur.