| Hollinden v City of New York |
| 2013 NY Slip Op 05676 [109 AD3d 584] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Geoffrey E. Hollinden, Respondent, v City of NewYork, Appellant, et al., Defendant. |
—[*1] Sivin & Miller, LLP, New York, N.Y. (Edward Sivin of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant City of NewYork appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), enteredNovember 25, 2011, which granted the plaintiff's motion for summary judgment on thefirst cause of action insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the first cause of action insofar as asserted against thedefendant City of New York is denied.
The plaintiff alleged in his first cause of action that he had been assaulted by thedefendant Jamel Dennis, alleged to be a police officer employed by the defendant City ofNew York. In the City's answer, filed only on its own behalf, the City denied "knowledgeor information sufficient to form a belief with respect to the truth of the allegations" setforth in the paragraphs of the complaint alleging that Dennis was a police officer and thatDennis was acting within the scope of his employment. As a tenth affirmative defense,the City asserted that "such acts as were committed by law enforcement in the employ ofthe City of New York in the scope of their employment were justified."
The plaintiff moved for summary judgment against the City on the first cause ofaction, submitting a certificate of disposition from the Supreme Court, Queens County,indicating that Dennis had been convicted of assault in the third degree and recklessendangerment in the second degree in connection with the assault at issue. The plaintiffcontended that the tenth affirmative defense constituted an admission that Dennis hadbeen acting within the scope of his employment. The Supreme Court granted the motion.
The Supreme Court erred in granting the motion. The City's affirmative defense wasthat "such acts as were committed . . . in the scope of employment werejustified." In light of the conditional nature of this language, and the City's denials thatDennis had in fact been acting within the scope of his employment, the City's tenthaffirmative defense did not constitute an admission. [*2]A plaintiff may not deem those allegations set forth in ananswer that are favorable to him or her to be admissions, while refusing to be bound bythose allegations that are unfavorable (see Case Press v Kennai Drilling, 55AD2d 590 [1976]; Green v Messing, 236 App Div 107, 111 [1932]).
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination. Rivera, J.P., Hall, Cohen and Miller, JJ., concur.