| Perez v City of New York |
| 2010 NY Slip Op 09237 [79 AD3d 835] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Kristin Perez, Appellant, v City of New York, Respondent, etal., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E.Sternberg of counsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Miller, J.), dated June 11, 2009, which granted the motion of thedefendant City of New York for summary judgment dismissing the complaint insofar as asserted againstit and denied her cross motion for summary judgment against the City of New York on the issue ofwhether the defendant Javier Colon was acting within the scope of his employment at the time of theaccident.
Ordered that the order is affirmed, with costs.
On September 15, 2004, the defendant Javier Colon, a New York City police officer, was off dutyand made plans to meet friends that night to play cards. Upon arriving at his friend's apartment with theplaintiff's decedent, George Perez, and in anticipation of consuming alcohol, Colon decided to removehis service weapon from its holster and unload it. While Colon was in the process of unloading theweapon, it accidentally discharged, and the bullet struck Perez, mortally wounding him.
The plaintiff commenced this action on behalf of the decedent's estate against Colon and the City ofNew York. Following discovery, the City moved for summary judgment dismissing the complaintinsofar as asserted against it, arguing that it was not liable for Colon's actions because Colon was notacting within the scope of his employment at the time of the shooting. The plaintiff cross-moved forsummary judgment on the issue of whether Colon was acting within the scope of his employment at thetime of the shooting.
Under the doctrine of respondeat superior, an employer is vicariously liable for an employee'stortious acts when those acts "were committed 'in furtherance of the employer's business and within thescope of employment' " (Holmes v GaryGoldberg & Co., Inc., 40 AD3d 1033, 1034 [2007], quoting N.X. v Cabrini Med.Ctr., 97 NY2d 247, 251 [2002]). An act is within the scope of employment when it is "performedwhile the employee is engaged generally in the business of his employer, or if his act may be reasonablysaid to be necessary or incidental to such employment" (Davis v Larhette, 39 AD3d 693, 694 [2007]), or where the act has thepurpose " 'to further the employer's interest, or to carry [*2]out dutiesincumbent upon the employee in furthering the employer's business' " (Beauchamp v City of New York, 3 AD3d465, 466 [2004], quoting Stavitz v City of New York, 98 AD2d 529, 531 [1984]). Incontrast, "where an employee's actions are taken for wholly personal reasons, which are not jobrelated, his or her conduct cannot be said to fall within the scope of employment" (Beauchamp vCity of New York, 3 AD3d at 466).
Here, the City met its prima facie burden of demonstrating that Colon was not acting within thescope of his employment as a police officer when he unloaded his service weapon and it accidentlydischarged. His actions on the date of the incident were wholly personal in nature—he was offduty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and,concerned about his comfort and the fact that he would consume alcohol, determined that unloading hisfirearm would be the best method to secure the weapon (see Joseph v City of Buffalo, 83NY2d 141 [1994]; Maginniss v City of New York, 216 AD2d 134 [1995]; see alsoPekarsky v City of New York, 240 AD2d 645 [1997]; cf. Kull v City of New York, 32NY2d 951 [1973], revg 40 AD2d 829 [1972]).
In opposing summary judgment, the plaintiff failed to demonstrate the existence of a triable issue offact as to whether Colon was acting within the scope of his employment at the time of the shooting(see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissingthe complaint insofar as asserted against it and denied the plaintiff's cross motion. Rivera, J.P., Dillon,Angiolillo and Austin, JJ., concur. [Prior Case History: 23 Misc 3d 1139(A), 2009 NY Slip Op51196(U).]