PUNGELLO v. The New York City Housing Authority, Defendant-Respondent. (2005)

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about December 9, 2003, which granted the motion of defendant New York City Housing Authority for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Plaintiff was shot by defendant Des Jardin.   At the time, Des Jardin, although employed as a Housing Authority detective, was off-duty in civilian attire, walking his dog near his home on premises not belonging to the Housing Authority, and the evidence of record establishes that the altercation arose from motives of a purely personal sort, bearing no relation to any law enforcement responsibilities Des Jardin may have had in his official capacity.   Under these circumstances, it is clear as a matter of law that plaintiff may not hold the Housing Authority accountable for Des Jardin's actions on a respondeat superior theory (see Seymour v. Gateway Prods., Inc., 295 A.D.2d 278, 744 N.Y.S.2d 398 [2002];  Pekarsky v. City of New York, 240 A.D.2d 645, 659 N.Y.S.2d 496 [1997], lv. denied 91 N.Y.2d 806, 669 N.Y.S.2d 1, 691 N.E.2d 1027 [1998];  Stavitz v. City of New York, 98 A.D.2d 529, 471 N.Y.S.2d 272 [1984];  Mahmood v. City of New York, 2003 WL 21047728, *1-2, 2003 U.S. Dist. LEXIS 7745 *11-12 [S.D.N.Y., May 6, 2003] ).

We have reviewed appellants' remaining arguments and find them unavailing.