| Cheng Feng Fong v New York City Tr. Auth. |
| 2011 NY Slip Op 02829 [83 AD3d 642] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Cheng Feng Fong, Respondent, v New York City TransitAuthority et al., Appellants. |
—[*1] Goldberger & Dubin, P.C., New York, N.Y. (Stacey Van Malden of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Sherman, J.), dated March 5, 2010, which granted theplaintiff's motion to compel responses to certain discovery demands for personnel and medicalrecords.
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
The plaintiff, a passenger on a bus owned by the New York City Transit Authority(hereinafter the Transit Authority) alleged that the defendant bus driver, an employee of theTransit Authority, assaulted him after he requested that the bus driver stop the bus. Thedefendants contend that the driver acted in self-defense. Additionally, the defendants concedethat the bus driver was acting in the scope of his employment during the altercation. Given thisclear concession (cf. Pickering v State ofNew York, 30 AD3d 393, 394 [2006]), even if the bus driver's conduct is determined tohave been an intentional tort, the Transit Authority would be vicariously liable to the plaintiffunder the doctrine of respondeat superior, regardless of its knowledge of the bus driver's medicaland work history (see Yildiz v PJ FoodServ., Inc., 82 AD3d 971 [2d Dept 2011]; Helbig v City of New York, 212AD2d 506, 509 [1995]; cf. Carnegie vJ.P. Phillips, Inc., 28 AD3d 599, 600 [2006]; Santoro v Town of Smithtown, 40 AD3d 736, 738 [2007];Oliva v City of New York, 297 AD2d 789, 790-791 [2002]; Vega v Northland Mktg.Corp., 289 AD2d 565, 566 [2001]). Consequently, the information that the plaintiff soughtfrom the bus driver's personnel file is not relevant, and that branch of the plaintiff's motion whichwas to compel its disclosure should have been denied (see Neiger v City of New York, 72 AD3d 663, 664 [2010]; cf.Pickering v State of New York, 30 AD3d at 394; Ashley v City of New York, 7 AD3d 742, 743 [2004]; Helbig vCity of New York, 212 AD2d at 508-509). The information sought in paragraph 9 of theplaintiff's combined demand for discovery and inspection was likewise not relevant, and thatbranch of the plaintiff's motion which was to compel its disclosure should have been denied aswell. Mastro, J.P., Angiolillo, Balkin, Lott and Miller, JJ., concur.