MICHAEL P. MALONEY, PLAINTIFF-RESPONDENT,
BAUDILIO RODRIGUEZ, DEFENDANT, CITY OF BUFFALO AND CITY OF BUFFALO POLICE DEPARTMENT, DEFENDANTS-APPELLANTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
OFFICE OF SAMUEL R. MISERENDINO, ESQ., BUFFALO (SAMUEL R.
MISERENDINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN,
from an order of the Supreme Court, Erie County (Catherine R.
Nugent Panepinto, J.), entered July 18, 2016. The order
denied the motion of defendants City of Buffalo and City of
Buffalo Police Department for summary judgment dismissing the
complaint against them.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting the motion in part and
dismissing the 1st through 10th causes of action insofar as
asserted against defendants City of Buffalo and City of
Buffalo Police Department, and as modified the order is
affirmed without costs.
Plaintiff commenced this action against the City of Buffalo
and the City of Buffalo Police Department (City defendants)
and defendant Baudilio Rodriguez seeking damages for, inter
alia, negligence, assault, and false imprisonment. According
to plaintiff, Rodriguez was acting within the scope of his
employment as a City of Buffalo police officer when Rodriguez
and plaintiff had a verbal and physical encounter outside a
bar where Rodriguez was employed in a security position while
off-duty from his police employment. Plaintiff was arrested
by two City of Buffalo police officers who were called to the
scene by an unidentified third person. The 1st through 10th
causes of action of the complaint allege that Rodriguez was
acting within the scope of his employment with the City of
Buffalo Police Department during the encounter.
City defendants moved for summary judgment dismissing the
complaint against them on the ground that Rodriguez was
off-duty and not acting within the scope of employment as a
City of Buffalo police officer at the time of the encounter.
We conclude that Supreme Court erred in denying the motion
with respect to the 1st through 10th causes of action. In our
view, the City defendants established as a matter of law that
they cannot be held liable based on the theory of vicarious
liability or respondeat superior, and we therefore modify the
order by granting the motion in part and dismissing those
causes of action against them.
begin by observing that, where there are no material disputed
facts and there is no question that the employee's acts
fall outside the scope of his or her employment, the
determination is one of law for the court and not one of fact
for the jury (see Nicollette T. v Hospital for Joint
Diseases/Orthopaedic Inst., 198 A.D.2d 54, 54 [1st Dept
1993]). A municipality may be held vicariously liable for the
conduct of a member of its police department if the officer
was engaged in the performance of police business (see
Joseph v City of Buffalo, 83 N.Y.2d 141, 145-146
). Here, in support of their motion, the City
defendants established that Rodriguez was at all relevant
times off-duty, was engaged in other employment as a private
citizen, was not in uniform, did not arrest plaintiff, and
did not display his police badge. We thus conclude that the
City defendants met their prima facie burden of establishing
that Rodriguez was not acting within the scope of his
employment as a police officer during the encounter with
plaintiff (see generally Perez v City of New York,
79 A.D.3d 835, 836-837 [2d Dept 2010]). In opposition,
plaintiff failed to raise a triable issue of fact (see
generally Zuckerman v City of New York, 49 N.Y.2d 557,
562 ). We reject plaintiff's contention that
Rodriguez's identification of himself as a police officer
during the encounter raised an issue of fact sufficient to
defeat the motion with respect to the issue of scope of
employment (see White v Thomas, 12 A.D.3d 168, 168
[1st Dept 2004]; Schilt v New York City Tr. Auth.,
304 A.D.2d 189, 195 [1st Dept 2003]; see generally Campos
v City of New York, 32 A.D.3d 287, 291-292 [1st Dept
2006], lv denied 8 N.Y.3d 816');">8 N.Y.3d 816 , appeal
dismissed 9 N.Y.3d 953');">9 N.Y.3d 953 ).
that the City defendants submitted no proof on their motion
with respect to the 11th through 13th causes of action, which
allege direct claims against them not based upon the theory
of vicarious liability or respondeat superior. We therefore
conclude that the court properly denied the motion with
respect to those causes of action. The City defendants'
contention that plaintiff's notice of claim did not
assert the direct claims is raised for the first time on
appeal and is therefore not ...