respondeat superior only where an employee was engaged in the furtherance of the employer's enterprise at the time of the employee's wrongdoing, and the employer was or could have been exercising some control over the employee's activities. E.g., Lundberg v. State of New York, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 950, 255 N.E.2d 177 (1967). In the context of the actions of off-duty peace officers, New York courts have stated that "where an employee's conduct is brought on by a matter wholly personal in nature, the nature of which is not job-related, his actions cannot be said to fall within the scope of his employment." 98 A.D.2d 529, 531, 471 N.Y.S.2d 272, 274 (1st Dep't 1984) (holding that City of New York was not liable for assault committed by off-duty police officer on neighbors with whom the officer had a personal disagreement); see also Turk v. McCarthy, 661 F. Supp. 1526, 1536 (E.D.N.Y. 1987) ("New York case law makes clear that a police officer's arrest of a citizen does not provide a basis for governmental liability where the arrest stems from a purely personal dispute rather than constituting an action taken in furtherance of the officer's duties as a member of the police force."); Fuller v. City of Yonkers, 100 A.D.2d 926, 927, 474 N.Y.S.2d 813, 815 (2d Dep't 1984) (declining to hold municipality liable for injuries caused by off-duty police officer in removing his daughter from a bar because officer was acting in furtherance of personal interests rather than as a city employee).
While plaintiff Michael Longin and defendant Kelly, at their respective depositions, have provided conflicting versions of the incident at issue, the testimony of each of them inevitably establishes that it is undisputed that Kelly did not act within the scope of his employment in shooting Michael Longin. As a threshold matter, it is not disputed that at the time of the incident, Kelly was both off-duty and on medical leave from his position. Kelly Dep. at 19-20. Second, Kelly stated that, prior to confronting Longin and his friends in the park adjacent to Kelly's apartment building, he contacted the Long Beach police by telephone from his apartment and informed them that some people were making noise and trespassing in the park. Id., at 101-3. He acknowledged that he had a communal interest in the park and acted out of that communal concern. Id., at 103-4. Kelly testified that, notwithstanding his having called the police and his understanding that they were on the way to the park, he proceeded to the park himself. Upon Kelly's entrance into the park, he told plaintiff and his friends that they were making too much noise, that the police had been notified, and that the young men should leave before the police arrived. Longin Dep. at 71; Kelly Dep. at 98. These undisputed facts demonstrate that Kelly did not act to advance any interest of the DOC or of the City on the night of May 22, 1989 but rather to advance his own interests as a member of the community in which he resides.
The differing versions of the actual altercation do nothing to alter this conclusion. Plaintiff Michael Longin averred that the shooting occurred when defendant Kelly attempted to take Longin's beer away from him. Longin Dep. at 78-79. By contrast, Kelly contended that the shooting took place in the street while plaintiff and his friends were attacking him. Kelly Dep. at 92, 106. What is most important is that neither participant depicts the incident as anything more than a personal dispute.
Plaintiffs' theories in support of their contention that defendant Kelly acted within the scope of his employment in the May 22, 1989 incident are meritless. First, plaintiffs' reliance on Kelly's use of his off-duty weapon in the altercation is misplaced. The legal authorities cited supra at 11-12, make clear that a peace officer's use of his weapon while off-duty is not, by itself, sufficient to establish that the officer's wrongdoing was undertaken within the scope of his employment. See, e.g., Turk, supra; Fuller, supra; see also Kelly v. City of New York, 692 F. Supp. 303 (S.D.N.Y.) (finding off-duty police officer not to have acted in scope of his employment in incident involving his weapon because the dispute was personal in nature). Second, plaintiffs' assertion that Kelly acknowledged that he shot plaintiff within the scope of employment is of no moment because: 1) Kelly stated at his deposition that he was not acting under any authority in addressing plaintiff and his friends but was rather merely making a "suggestion" and giving "advice"; and 2) Kelly's subjective characterization of the incident is not dispositive of the issue of whether he acted within the scope of his employment. E.g., Turk, supra; Stavitz, supra; Fuller, supra.6
Finally, plaintiffs have cited no general, special or local law, or charter, rule, regulation, judgment or order that Kelly was either required, authorized or purporting to enforce pursuant to his special duties as a correction officer. This circumstance alone distinguishes the action at bar from the single legal decision cited by defendant Kelly
relating to respondeat superior, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975). In Stengel, the Sixth Circuit affirmed the District Court's finding that an off-duty police officer had acted within the scope of his employment when he interceded in a fight between other patrons in a restaurant, on the grounds that the regulations of the City of Columbus Police Department required the individual defendant to carry a firearm while off-duty and to intervene in the altercation. Kelly's actions of May 22, 1989, arising from an incident of an indisputably personal nature, were in no way similarly compelled or sanctioned by the statutes, regulations, or directives governing his conduct as a correction officer.
Insofar as defendant Kelly cites any source authorizing his actions on May 22, 1989, he does so in support of his claim for indemnification (discussed further infra at 17-18) wherein he relies on Criminal Procedure Law § 2.20 (3). That subsection provides as follows:
A peace officer, whether or not acting pursuant to his special duties, who lawfully exercises any of the powers conferred upon him pursuant to this section, shall be deemed to be acting within the scope of his public employment for purposes of defense and indemnification rights and benefits that he may be otherwise entitled to under the provisions of section fifty-k of the general municipal law...
Crim. Proc. L § 2.20 (3) (emphasis added).
Although, defendant Kelly does not indicate which of his powers under the Criminal Procedure Law he was purporting to exercise in the underlying incident, he may refer to the power "to use physical force and deadly physical force in making an arrest or preventing an escape pursuant to section 35.30 of the penal law." Crim. Proc. L. § 2.20(1)(b). Neither plaintiff nor defendant Kelly, however, has adduced any evidence establishing that Kelly was effecting an arrest or attempting to effect an arrest of plaintiff Michael Longin. Moreover, defendant Kelly does not contend that he was required to use force against Longin to prevent him from escaping. See Defendant Kelly's 3(g) Statement, P6.
In any event, such a contention would be unavailing, because Penal Law § 35.30 clearly does not sanction the use of deadly physical force to prevent the escape of a person who the officer believes may have been guilty of underage consumption of alcohol.
Accordingly, we grant the City's motion for summary judgment with respect to plaintiffs' claims against the City under the theory of respondeat superior.
Defendant Kelly's Cross-Claim for Indemnification and Representation Pursuant to Municipal Law § 50-K
Defendant Kelly cross moves against the City, seeking indemnification and representation by the City pursuant to Municipal Law § 50-K(3) and 50-K(2) respectively. The law is clear, and counsel for defendant Kelly conceded at oral argument, that the City is obliged to indemnify and represent an employee only in instances where litigation arises as a result of actions taken by that employee within the scope of his or her employment. General Municipal Law 50-K(3) (City will indemnify only where "the employee was acting within the scope of his public employment"); Kelly v. City of New York, 692 F. Supp. 303, 308 (S.D.N.Y. 1988). In light of our finding, supra at 11-17, that defendant Kelly was not acting within the scope of his employment in shooting plaintiff Michael Longin on May 22, 1989, defendant Kelly's cross-claims for representation and indemnification are dismissed.
The motion of the City for summary judgment dismissing plaintiffs' claims against the City under federal and state law, and defendant Kelly's cross-claims against the City under state law, is granted.
Dated: New York, New York
January 18, 1995
ALLEN G. SCHWARTZ, U.S.D.J.